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

Sunday Times - - OPINION - By ANELE NZIMANDE Nzimande has worked as a le­gal re­searcher at the Cen­tre for Ap­plied Le­gal Stud­ies at the Univer­sity of the Wit­wa­ter­srand and cur­rently owns a cloth­ing la­bel.

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.

Pic­ture: Elvis ka Nye­lenzi

Cus­tom­ary law is sub­ject to the con­sti­tu­tion — which is ‘a law unto it­self’.

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