THE SOUTH AFRICAN CONSTITUTION OF 1993/1996: MIRACLE OR MIRAGE? University of the Third Age

1. ANDREAS VAN WYKBA LLB (cl) BPhil (cl) (Stell) LLD (cl) (Leiden) LLD (hc)(Leuven)Rector and vice-chancellor emeritus, Professor extraordinary of Commercial Law, University of Stellenbosch THE SOUTH AFRICAN CONSTITUTION OF 1993/1996: MIRACLE OR MIRAGE? University of the Third Age Hermanus branch 13 February 2014

2. MIRACLE OR MIRAGE? • Twenty years ago South Africans and the world were celebrating the miracle of a new democratic and inclusive dispensation in South Africa, where many doom prophets had been expecting a bloody conflict along racial lines. The basis of this new dispensation was a negotiated constitution which was often described a one of the best in the word. • In 2014 many South Africans and others are disillusioned. In their view South Africa has a corrupt and inefficient government which seems to try and undermine that constitution in different ways. Will the constitution and its institutions (particularly the independent courts) be able to survive this perceived onslaught? Or is the country doomed to go the way of other African democracies?

3. THE MIRACLE? SIMON JENKINS IN THE GUARDIAN (LONDON), 10 DECEMBER 2013 “Enough is enough. The publicity for the death and funeral of Nelson Mandela has become absurd. Mandela was an African political leader with qualities that were apt at a crucial juncture in his nation's affairs. That was all and that was enough. Visiting and writing about South Africa in the last years of white rule in the 1980s, I was acutely aware that the great struggle was not so much between the white South Africans and Mandela's ANC, whose leaders were in prison or exile, but within Afrikanerdom. This was no rebellion against a foreign power. It was a potential conflict between an impotent majority and a potent minority, in which the likelihood of the latter giving way to the former seemed minimal – and unnecessary in the short term. The first hero of that struggle was the then prime minister, FW de Klerk. The realisation that his group should cede power to a black government was a moral conversion as much as realpolitik. The Afrikaners capitulated not because some mighty power (such as sanctions) had crushed them or because of the more significant fall of Rhodesia and the Portuguese empire. Their priests and intellectuals told them apartheid had lost the argument. They had lost the will. It had been, said De Klerk, "a terrible wrong".

4. THE DEAL(SIMON JENKINS cont) • Even so the task of switching to black majority rule was Herculean, and success by no means inevitable. A lesser man than De Klerk could well have battled on for another decade of mounting bloodshed. But his tribal revolution, well chronicled by the historian of AfrikanerdomHermann Giliomee, succeeded. It was a rare case of an entrenched minority peacefully handing power to a majority. • Mandela was crucial to De Klerk's task. He was an African aristocrat, articulate of his people's aspirations, a reconciler and forgiver of past evils. Mandela seemed to embody the crossing of the racial divide, thus enabling De Klerk's near impossible task. White South Africans would swear he was the only black leader who made them feel safe – with nervous glances at Desmond Tutu and others. • South Africa in the early 90s was no postcolonial retreat. It was a bargain between one set of tribes and another. For all the cruelties of the armed struggle, it was astonishingly sparing of blood. This was no Pakistan, no Sri Lanka, no Congo. The rise of majority rule in South Africa was one of the noblest moments in African history. The resulting Nobel peace prize was rightly shared between Mandela and De Klerk, a sharing that has been ignored by almost all the past week's obituaries. There were two good men in Cape Town in 1990.

5. THE DEAL (SIMON JENKINS cont) Once that instinct had unlocked the door of a settlement, Mandela acted swiftly to reassure white businessmen who could well have vanished overseas. He welded the ANC into an electoral force, and worked to keep dissident Zulus on board when Natal secession briefly threatened. But as David Beresford's admirable Guardian obituary relates, he was a worse than ordinary president. He did little to resist the drift to cronyism and corruption, was a poor executive, and never deployed his talents to tame Mugabe or ease the horrors afflicting the rest of Africa. He preferred to see out his office meeting celebrities and raising dubious money. After seeing their former president doused in virtue and squeezed dry of glory by an assembly of world celebrities, South Africans should repatriate his reputation. Mandela gave them signal service for a brief few years in the 1990s, and if it suits them to revere him as a symbol of unity, goodness and peace, so be it. That is their business. But the South African quality I recall Mandela possessing to the full was not saintliness, it was a hardened sense of irony. I doubt if he is wearing the BBC's tin halo right now. I would bet he is laughing his head off.”

6. THE INSTRUMENT: A CONSTITUTIONAL STATE • Concept of a constitutional state based on the supremacy of the law (and NOT, as in England, on the supremacy of Parliament) and power of courts to review • American origin (1783) • Post-war German constitution of 1949: Rechtsstaat(Immanuel Kant (1724–1804) • Strong German influence on new SA constitution of 1993 (transition) and 1996 (final)

7. FOUNDING PROVISIONS Sec 1. Republic of South Africa The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the constitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. Sec 2. Supremacy of Constitution This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

8. SUPPORTING INSTITUTIONS (CHAPTER 9) STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY (ss 181-194) 181 Establishment and governing principles (1) The following state institutions strengthen constitutional democracy in the Republic: (a) The Public Protector. (b) The South African Human Rights Commission. (c) The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. (d) The Commission for Gender Equality. (e) The Auditor-General. (f) The Electoral Commission.

9. SUPPORTING INSTITUTIONS (CHAPTER 9) (cont) (2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. (3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. (4) No person or organ of state may interfere with the functioning of these institutions. (5) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a Year.

10. THE COURTS AS CONTROL MECHANISM 165 Judicial authority (1) The judicial authority of the Republic is vested in the courts. (2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. (3) No person or organ of state may interfere with the functioning of the courts. (4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. (5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

11. THE COURTS AS CONTROL MECHANISM (cont) Sec 172. Powers of courts in constitutional matters (1) When deciding a constitutional matter within its power, a court -- (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including - (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. (2) (a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court...... (d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.

12. CONCERNS/WEAKNESSES • CODESA was purely political with no inputs from civil society – resultant gap between e g Bill of Rights (Chapter 2, secs 7-39) and cultural and moral beliefs of many South Africans in social matters such as death penalty and homosexuality • Lack or weakness of alternative political power centres – e g provinces, centralised police, central budgetary powers • Weak position of opposition in parliamentary system • Relative weakness of some chapter 9 bodies – lack of own resources • Use of demography to divide and weaken, minorities too • Powers of courts as main counterbalance create a focus on them, healthy and unhealthy • Judicial Service Commission: composition and functions • Legal Practice Bill as example of pressure on judicial independence

13. JUDICIAL SERVICE COMMISSION Sec 178 Judicial Service Commission (1) There is a Judicial Service Commission consisting of- (a) the Chief Justice, who presides at meetings of the Commission; (b) the President of the Supreme Court of Appeal; (c) one Judge President designated by the Judges President; (d) the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member; (e) two practising advocates nominated from within the advocates‘ profession to represent the profession as a whole, and appointed by the President; (f) two practising attorneys nominated from within the attorneys‘ profession to represent the profession as a whole, and appointed by the President; (g) one teacher of law designated by teachers of law at South African universities; (h) six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; (i) four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; (j) four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and (k) when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them.

14. THE MIRAGE? PoliticalcommentatorJustice Malala in The Times (Johannesburg), 26 November 2013: “PRESIDENT Jacob Zuma is not a fool. He makesgaffesevery week andhasnoideawhatconstitutionalitymeans. Buthe is not a fool. He mightnotread –- as has been alleged – butthatdoesnotmeanhedoesnotknowwhatlevershavetobecrankedtoensurethathenevergetsinside a court. Sincehebecamethe president of the ANC in 2007, hehasoverseenthemostconcertedandsuccessfulassaultonthecountry’sindependentinstitutions. Thejudiciary is todayfacing a major crisis of confidencebecause of casesinvolvinghimattheConstitutional Court. The minute he won the ANC presidency in Polokwane, theScorpions – which had been investigatinghim – weredisbanded. It was quick, cruelandruthless. Overthepastfewmonthsithas been thepublicprotector’sturn. In thattime, wehavewitnessedconcertedandcoordinatedattacksfromparliament, theexecutiveandvariouswings of the ANC ontheofficeled by possiblythemostadmired “publicservant” in thenationtoday – ThuliMadonsela. And so one hastoask: Which ANC is this?”

15. THE MIRAGE? (Malala cont) “Howcananorganisationthatrefusedtohave a personalitycultbuiltaround Nelson Mandela allowitselftobecome a mere tool in thehands of Zuma? Howcanitsleaderscastasidetheparty’shistoricalmission – totransformthelives of millions of poorblackpeopleandbuild a united, non-racial, prosperousanddemocratic country – tosimplybecomegophersfor Zuma? Yetthat is whattheparty’s 86-member nationalexecutivecommitteehasbecome.... Acrossthe land, provincial party leadershobble state machinerymerelytoprotectand keep this one compromisedleaderout of jailand in power. It is anincrediblesight..... The ANC no longer hasleaders. Ithas zombies whomindlesslyfollowthis one leaderand do hisbidding. It is quiteextraordinary. Whathashappenedtotheculture of debateandcontestationthatoncepermeatedthismovement?..... So, as welookattheextraordinarylengthsthatthecurrent ANC “leadership” hasgonetodefendanembarrassment of a leaderwhoseentirefamilyseemstobeinfused by a shockingculture of entitlement ..., wehavetoask: Where is the ANC? Theanswer is heartbreaking: The ANC is compromised; it is lost. Ithaslostitsmoralcompassanditsleadership of society....”

16. EXPECTATIONS TOO HIGH? • Whether one agrees with these strong words or not, they do show the disillusionment (even sense of betrayal) prevalent in much of SA society on the eve of election on 7 May • This raises the question whether our expectations of our new dispensation were perhaps too high? • Should we not rather lower them and concentrate on “muddling through”? • Importance of free press! – efforts to limit. • Active civil society of cardinal importance – local level key • Coming election will in my view show that our constitutional foundations have their flaws, but remain solid • That there is a growing realisation that our future lies in constitutionalism, in spite of easy populist slogans

17. FINIS