As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
A reader was rather dismayed that our Constitution was referred to as a transformative constitution in one of the articles mentioned in the discussion page. He wrote that the notion of a transformative constitution was a nonsense:
“Exactly that moment the oh so haloed “constitution” becomes a revolutionary manifesto. Exactly what it was meant not to be. Then it becomes the single most divisive document in the country.”
This view fundamentally fails to understand that South Africa does not have a liberal constitution which protects the status quo and freezes the position that prevailed in 1994. To have adopted such a constitution would have doomed it to illegitimacy from the start. Our Constitution is often described as a “post-liberal Constitution” because it facilitates the transformation of society away from the apartheid-based, patriarchal, homophobic and deeply inegalitarian society to a (slightly) better one.
This is clear if one actually reads the document. Section 7 of the Constitution for example, says that the state has a duty to respect, protect, promote and fulfill the rights in the Bill of Rights. Unlike a traditional liberal Bill of Rights it therefore places not only a negative duty on the state to refrain from infringing existing rights but also places a positive duty on the state to work towards the realisation of rights for all – not only the rich.
Section 8 furthermore makes clear that – at least some of the time – the Bill of Rights will not only apply to the state but also to private actors. That is why a restaurant or a holiday resort cannot discriminate against individuals on the basis of their race, for example. A traditional liberal rights regime would have left such private discrimination untouched which would have been untenable in South Africa, given our history and the distribution of economic power in this country.
This is also why the Constitutional Court in the Van Heerden case – in a judgment written by that arch counter revolutionary, Deputy Chief Justice Dikgang Moseneke – explicitly refers to the notion of a transformative Constitution and argues that affirmative action in South Africa is not reverse discrimination as so many old style apartheid-loving South Africans masquerading as liberals (Tony Leon are you there?) keep on arguing.
The state has a constitutional duty to take corrective measures to ensure that existing white privilege are not protected in such a way that it excludes the oppressed from at least the chance of equal opportunities in employment and other fields of human endeavour. Affirmative action is therefore not an exception to the equality, but a precondition for the achievement of equality.
Judges who embrace this transformative vision of the Constitution will understand that they have to interpret the Constitution and other legislation against the background of unacceptable racially defined economic disparities and will have to hear the call of the poor and the marginalised in society.
That is why I find it so preposterous that Judge President John Hlophe is being feted as a hero by the South African Communist Party and Cosatu types, despite the fact that he has handed down anti-poor judgments in recent years. If one compares the jurisprudence of Hlophe with that of Moseneke or Langa it is laughable for anyone who professes to be of the left to champion his cause.
But principle is not something that many politicians and their defenders like to stick to in South Africa, so one should perhaps not be surprised at this bizarre turn of events.BACK TO TOP