Our flawed democracy rests on a constitution that protects the rich
The property clause is so laden with exceptions as to make expropriation of land almost impossible
I recently caught an episode of the popular telenovela Isibaya, and was struck by a scene in which a woman pleads her case in a traditional court.
Her husband had died and the family she married into would only let her keep her marital home if she married his brother.
Qondi, a secretary of the traditional court (a character portrayed by Jessica Nkosi) then makes an unorthodox move — she asks permission to speak and proceeds to give a moving motivation for why widows should be allowed to remain in the marital home after the death of their husbands.
I suspect her words would have a lot of resonance for many South African women: “We respect traditional laws and observe them as per our culture, but we also have the law of the land in the form of the constitution, which protects individual rights of all regardless of their identity, and where there is a conflict between traditional law and the constitution then justice shall prevail.”
In the hierarchy of laws in South Africa, customary law ranks at the very bottom.
We are told customary law is an established system of rules that is evolved from the way of life of indigenous people and that it is both protected by and subject to the constitution.
This means where customary law falls short in its ability to protect the rights of certain people, the constitution can compensate.
On the other hand, where the constitution falls short, only the constitution itself can be a remedy.
In other words, we treat the shortcomings of the constitution with the same optimism many in the ANC demonstrate for their beloved liberation movement: there is a strong belief that somehow, over time, it will “self-correct”.
Our constitution is ambitious. This in itself is important — those who drafted it understood the importance of a grand vision.
Still, this ambition is often mitigated by a lack of coherence.
The best example of this is embodied in the property clause, contained in section 25 of the constitution.
This clause allows for property to be expropriated for a public purpose or in the public interest.
Despite the desperate need for reconciliation with the land, section 25 also sets out a number of exceptions that make it virtually impossible for that expropriation to be undertaken expediently, if at all.
For example, section 2(b) presents that the state (which is engaged in the expropriation for the public interest) and the party affected must reach consensus about the time and manner of payment. How do you think that is going? In practice, people living in poverty therefore must be reconciled with their lost sense of dignity when they were violently moved from ancestral lands and relocated to wastelands.
Based on this, it is evident that a significant flaw in the constitution is the fact that it exists within a liberal framework.
The trouble with all liberal democracies is that their institutions are far more likely to be accessed by those with resources than those without them.
There is a growing body of evidence that our constitution protects the rich more than it protects the poor, with South Africa having one of the highest levels of inequality in the world even though we have the most lauded and praised constitution in the world.
The founding principles of the constitution are the three cousins freedom, equality and dignity for all. And the success of the constitution should be measured based on its overall performance in achieving these outcomes for those who were the furthest from these.
It is perhaps the haunting words of Judge Jody Kollapen that provide a glimpse of the true meaning of the insidious nature of the constitutional project.
With more honesty than most, Kollapen suggests the power of the constitution “wasn’t in what it delivered, its power is in what it promised”.
If the constitution remains only that — a mere promise — then South Africa is in grave trouble.
In recent years the quest for economic justice in South Africa has become polarising.
The fault lines between those who want to see radical transformation happen faster and those who are more invested in protecting liberal democracy are growing ever more clear.
Increasingly, the constitution seems too optimistic in its mandate to serve both black and white in equal measure. The truth is there are those who already have the kind of freedoms and protections that the constitution speaks of and there are many others for whom those rights will never be a reality.
Equality cannot be attained without equity — and equity requires a measure of justice.
Effectively, poor black South Africans do not have a remedy against the constitution because it is a law unto itself.
It is self-referential and complicated. Changing it — and making it more easily accessible in daily life, as is customary law — is of course difficult.
The days of people being prepared to simply listen and be treated as loyal subjects are over. The people are increasingly unhappy with their leaders, but it is evident there is an even more profound problem that will still require fixing even after the current lot are gone.
It is up to a new generation of South Africans to challenge not just the leaders, but the bedrock on which they sit: the very constitution on which our flawed democracy rests.
Customary law is subject to the constitution — which is ‘a law unto itself’.