An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Is it at all possible to write sensibly but critically about the way in which the concept of “transformation” has evolved in kleptocratic South Africa? “Transformation” has become a buzzword that is much bandied about and much abused, but few people explain what they mean when they use the word. Like mother hood and apple pie, it is assumed to be an unqualified human good and as such “transformation” is now used much like the rights in the Bill of Rights are used: as trumps to stop any political analysis, argument or the asking of any uncomfortable questions.
Back in 1998, a progressive American academic called Karl Klare wrote an extremely influential and since then much quoted article in which he argued that ours could be seen as a transformative Constitution. Klare argued that as a progressive supporter of the democratic project, one not only could but should interrepret our Constitution as a transformative document.
He claimed that it could be read thus for several reasons. First, he argued that the constitutional text was historically self-conscious, by which I took him to have meant that when interpreting and applying the Constitution, judges were allowed to keep in mind the history of oppression, struggle and the denial of human dignity out of which it was born.
When a judge has to decide whether the arrest, torture and detention of an ordinary citizen (or journalist) was lawful, she could do so with reference to the constitutional text that bans such lawlessness, yes, but also with the ever present and dark memory of the detention, torture and eventual murder of Steve Biko in mind. When a judge had to consider whether to grant an eviction order, she could take into account not only section 26(3) of the Bill of Rights but could also keep the memory of forced removals and the inhuman and degrading effects of that policy on ordinary people alive.
Second, the Constitution was transformative, Klare argued, because it contained an equality clause that explicitly endorsed corrective measures that would help to right the wrongs of past racial oppression. Moreover, it contained a set of social and economic rights which empowered courts to assist ordinary citizens to access the most basic services and benefits required to live a life with a semblance of human dignity.
Lastly, the Bill of Rights explicitly stated that it applied not only vertically against the state, but also horizontally against private individuals and institutions (which were so complicit in the enforcement of apartheid and benefited so hugely from it) and required judges to take into account the spirit and object of the Bill of Rights when interpreting legislation or developing the common law and customary law.
This vision of transformation is, in its way, a radical vision which has as yet not come to pass. It envisages a complete transformation of the legal system as well as a dismantling of the structures which still help to perpetuate the disgraceful racial and gender inequality in our society and continues to subjugate the majority of South Africans – both economically and socially.
Sadly, few lawyers and judges have embraced this vision of a transformative constitutional project. While most pay lip-service to the need for transformation and claim to endorse the transformative vision of the Constitution, it is as if the old had colonised the new by co-opting them in the opppression of the majority of citizens. The concept of “transformation” is now often used – so it seems to me – as a band-aid to hide and legitimise the continued injustice and inequality that is perpetrated by the old business elite and the new political and business elite.
Although more than half of all judges are now black, most judges still do not use the Constitution as they are entitled to do, to try and address the fundamental injustice inherent in our legal system. Many of the basic assumptions underlying the common law – the unqualified benefits of a free market, the alleged freedom to choose, the equal power of all roleplayers – are still vigorously enforced by both black and white judges – even when it benefit the business elite and the politicians and perpetuate the oppression and marginalisation of the masses of our people.
When a pensioner is stabbed and rushed to hospital and she is forced to sign an indemnity form by that hospital, most of our judges – black and white – will endorse the absurd fiction that while she was lying on a trolley, bleeding to death, she had exactly the same bargaining power as the hospital to enter freely into a contract. They will hence find that the Hospital could not be held liable for the negligent amputation of her arms and legs and dismiss any claim against the Hospital.
Real and deep transformation is the enemy of the elite – black and white – because if deep transformation is actually implemented, it will transform the very system that we all benefit from so handsomely, that allows us to drive to work in million Rand cars without having to step out into the streets where people are dying of hunger and disease. Why support deep transformation if one is benefiting from the system?
Politicians are particularly good at this kind of double speak about transformation. They shout and scream about the need for transformation, by which they usually mean the replacement of greedy, white, heartless, capitalists, with greedy black heartless capitalists (who are preferably their friends and relatives who will also help to enrich them and will assure that they benefit from the looting of state coffers).
It reminds one of the saying in the apartheid era that white English-speaking South Africans voted for the Progs of Helen Suzman, but went on their knees every night to thank God that the Nationalists were still in power to “protect” them from the black majority. The new elite can still be found on their knees, from where they can pay lip-service to the masses of our people and the need to address poverty while they stuff their pockets with the loot offered to them by more or less the same system that operated during the apartheid years.
Of course, many things have changed since the days when PW Botha wagged his finger at us on TV, mangled the English language beyond recognition and allowed his security services to torture and kill those South Africans who did not find him charming. The National Party is no more and on an emotional (and even legal) level we are all far more free than we used to be. Even if the new elite does not care much for anyone but themselves, they do not actively hate the majority of the population and do not sit up at night to think of ways to humiliate black South Africans – as seemed to have been the case with the apartheid nutters.
We now live in a democracy and the government knows that they need the vote of the majority of South Africans to continue in power, and they need to continue in power if they want to continue reaping the benefits of BEE deals, corrupt tenders and the wonderful benefits bestowed on them by that other Bible called the Ministerial Handbbook. A welfare net of sorts has therefore been created to provide some needy South Africans with assistance in the form of social grants and pensions. These grants and pensions keep the majority of South Africans from rising up and from overthrowing the state and the system which benefits only a few.
(That is why the DA’s support for a basic income grant makes sense: with such a grant in place, the haves may buy some time. It allows them to continue to insist that while “transformation” is important it should not be taken to mean that anything should really change – except for the colour of the skins of those who exploit the rest of the population.)
So, yes, things have changed. But they have not changed in the way and to the extent promised by the transformative constitution.
“Transformation” has become a catchphrase to justify greed and self-interest and prevent the fundamental changes needed to actually address the monumental poverty and the criminal gap in wealth and personal circumstances between the rich (more and more a non-racial rich) and the poor (which remains largely black).
When politicians or the emerging business elite bleat on about the need for transformation I chuckle bitterly but knowingly. What do they mean when they say this? Do they mean that we should continue as before but should just have less white people with their snouts in the trough and more black people benefiting from the spoils of a system that remains – in its essential structure at least – not much different from that which operated under apartheid?
What is transformation? Can one eat it and use it as a blanket at night to ward off the cold? Will it provide a roof over one’s head, clean drinking water and electricity and a job that will allow one to live with a semblance of dignity? Can one feed one’s children with transformation and send them to school on it? Can one get good medical care (I have not yet seen any pharmacy stocking transformation pills that will make us all healthy) and protect oneself and one’s loved one’s from crime with a transformation blanket? Don’t think so.
When Julius Malema talks about the need for a revolution, or when Jimmy Manyi talks about the need to speed up transformation, all while driving in an obscenely large cars and splashing out on the most expensive luxuries, why don’t we all just laugh (or maybe spit) in their faces and point out that these are words – only empty words – used to keep the majority of South Africans in their place: poor, powerless and ready to acquiesce in their own oppression.
Maybe we should ban anyone from using the word and find new words to talk about the need to change this country. “Transformation” does not cut the mustard. It has become a hollow and empty word, devoid of any real meaning.BACK TO TOP