Bill of Rights realisation ensures equality
to “consider” the need for the judiciary to reflect broadly the racial and gender composition of SA, while the public administration is required to be “broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation”. There are no similar constitutional provisions for any other sector of society, but this fact has not deterred the essentially illegal and unconstitutional practice of “cadre deployment” by the governing alliance.
It is only in elected political office that cadre deployment, as part of the freedom of association of political parties, is actually allowed. All too often, cadre deployment in the public administration offends the requirement of the Constitution that “good human resource management and career development practices, to maximise human potential, must be cultivated”.
Some commentators argue that the deployed cadres of the much-maligned “national democratic revolution” are the vanguard of those bent on the capture of the state. A deployed cadre without the capacity, competence and qualifications for the job is a drain on public resources.
Left-leaning politicians in the US and the UK wring their hands in desperation as they observe the inequalities of wealth and income in their countries, without ever pausing to consider whether everyone has equal protection and benefit of the law as a mark of their equality before the law.
US Democratic Party presidential contender Bernie Sanders calls the income and wealth inequality in the US the major moral, economic and political issue of our time. Ed Milliband, the former Labour Party leader who resigned after losing the last UK general election, muses about inequality of income and wealth inhibiting economic growth because “a low-wage economy … is a low-growth economy”.
Milliband contends that outsourcing jobs and automation create “greater insecurity” as a result of “greater inequality”. He criticises the “scale of rewards” of the super-rich because, in his view, this abundance has the effect of denying others. To him, opportunity and the ability of people to shape their own lives are affected by inequality. To socialists, the unequal distribution of wealth and resources has to be tackled by the state’s redistribution of wealth and resources. The South African constitutional dispensation has a different solution.
The long struggle for freedom in SA has been rewarded with a considered and justiciable Bill of Rights in which freedom of association and movement, protection of property rights and freedom of trade, occupation and profession are guaranteed to everyone. A variety of socioeconomic rights, most subject to progressive realisation — with the exceptions of basic education and children’s rights — are also included in the Bill of Rights.
rights and freedoms create the framework for the establishment and growth of a free economy in which free individuals can seek a better life in the knowledge that the state is legally obliged to respect and protect their rights.
The prohibition on the arbitrary deprivation of property included in the Bill of Rights, and its requirement that expropriation of property is always subject to compensation, make the theoretical notions of redistribution of wealth and resources (without compensating those deprived of wealth) unconstitutional.
The task at hand in the horrendously unequal SA is the creation of a truly free economy, with minimal “red tape” restraint, by free individuals. This type of economy is the “social justice” envisaged in the Constitution.
Achieving this new order requires the proper implementation of the Bill of Rights starting with a serious overhaul of the education system, so that the right to basic education is more than a paper promise.
Also necessary is the incentivising of investment — domestic and foreign — in ways that create jobs for the unemployed. Freeing the rural poor from their traditional shackles would also help.
The “better life” is created by studying and working responsibly on a level playing field from which unfair discrimination is removed; it cannot be fashioned through unsustainable socially engineered outcomes based on fallacious interpretations of the plain text, purpose and content of the law.
Relative wealth has nothing to do with equality before the law.
Hoffman SC is a director of Accountability Now.
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