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Tug of War

Since 1994, South Africa’s jurisprudence, specifically academic writing, praised the Constitution and the Bill of Rights and speaks with almost religious reverence about “enshrined rights.” In our jurisprudence you have theories like “transformative constitutionalism” and the writings extrapolating the vision of the Constitution for the new South African society.

As heart-warming as it is, these types of writing puffs the very fundamental functions of the Constitution into obscurity. The function of the Constitution is very simple: to spell out the rules of the game for the State. Its primary function is the limitation and regulation of State actions and powers.

Unfortunately, for most writers, it is not a social project; it is a legal document consisting of constitutional principles limiting the power of the State, and that is the function of all constitutions around the world.

Our legal tradition aligns with the Anglo-American legal tradition, which is why we compare our Constitution (and law) with countries such as the United States, Canada, Scotland, and Australia. But our Constitution is very peculiar in many ways. If you take a look at the constitutions of both the United States and Canada, you see a pantheon of rights with one singular purpose – limiting the State and its influence in the private lives of its citizens. It is this underlying philosophy, amongst others, that binds these countries into a collective legal tradition.

South Africa, in most cases, agrees with the philosophy of the United States and Canada regarding rights, but we have anomalies that complicate the working and interaction between the rights in Chapter Two of our Constitution. These anomalies cause an internal ideological contradiction in the document. I will discuss two of these contradictions.

The inclusion of welfare rights

If you look at the Bill of Rights of the United States and Canada, you see many of the same rights we have, for example freedom of expression, freedom of movement, rights of the accused, etc. But in South Africa’s Constitution you find socio-economic rights (I’ll call them ‘welfare rights’) such as:

  • Section 26, the right to housing;
  • Section 27, the right to medical care, food, water and social security;
  • Section 29, the right to education.

You do not find these in other constitutions sharing the same legal background, and the question is: why?

The answer is very simple: it contradicts the underlying philosophy of constitutional rights – that being to limit the power and influence of the State and thereby ensuring individual freedom. Welfare rights place constitutional obligations on the State to enact legislation to provide for what is promised, of course, funded by the State via taxation. One must always keep in mind that the State can distribute only what it takes from other citizens. Herein lies the contradiction in the Bill of Rights: we have rights that limit the State’s power, alongside other rights that expands the State’s power, by means of funding those powers with public money.

I believe our constitutional drafters realised this contradiction, and framed the language of our rights in such a way that the State is granted the power to reconcile the juxtaposed ideological norms. This created even more ideological contradiction in the language of specific sections of the Bill of Rights itself.

Contradictions within rights themselves

The best way to illustrate this phenomenon is with reference to section 25 – your right to property.

If one looks at the American Constitution’s guarantee of property rights in the 5th Amendment, the language is simple:

“No person shall … be deprived of life, liberty or property without due process of law, nor shall private property be used for public purposes, without due compensation.”

The right to property is protected in the negative (your property may not be taken), the same as in South Africa, but there is not a qualification placing any welfare obligations on the State. The 5th Amendment only states that if the State wants take your property (called ’eminent domain’ to our ‘expropriation’) it is to be done with due process and compensation must be paid.

South Africa’s right to property in section 25 is a lengthy provision, with nine subsections spelling out one’s right to property. These provisions are:

  • Section 25(1), no person may be deprived of property without a law of general application, and no law may permit the arbitrary deprivation of property.
  • Section 25(2), the expropriation of property (the State taking it) is allowed by law of general application, for public purposes subject to due compensation.
  • Section 25(3), sets out factors to take into account when quantifying the amount of compensation.

These sections are basically the same as the American protection of rights, but we have sections 25(4) to 25(9) that create obligations for the State to make laws allowing for land reform, water reform, land claims, access to land, access to natural resources, and the redistribution of land subject to section 36 (the limitation clause).

Here the contradiction is clear: the first part of the section tries to limit the power of the State, and then the second part places obligations on the State to realise all these social goals. And when one reflects on this dichotomy one realises that for the State to fulfil its obligation, it needs to infringe on the very property rights this section protects. This is the contradiction within the section itself.

This contradiction creates immense complications in our legal discourse and I would argue leads to the effective limitation of the right itself, which makes the Bill of Rights largely superfluous. One might think I am being dramatic, but it has actually already happened.

The Constitutional Court judgement of Agri SA shows how this internal tension leads to the limitation of rights.

The case dealt with the expropriation of mineral rights and who owns it. An Act of Parliament called the Mineral Resources and Petroleum Development Act allowed mineral rights to be expropriated so that the “nation” acquires rights in the minerals, but the State controls all minerals in South Africa (called ‘State custodianship’), and mining companies can lease the rights from the State. What was contentious was that the Act allowed for no compensation to be paid.

How did the Act get past section 25 of the Constitution, which demands compensation? Well, it took a bit of legal gymnastics. The Act created the State custodian fiction, as mentioned above, and the court found that section 25 only provides compensation to be paid if the State acquires the property as the owner. Because the nation ostensibly received the property rights in this case, the State did not have to pay compensation. Thus, the court affirmed this legal fiction, pursuant to the constitutional goals of section 25.

This was all made possible by the constitutional obligation to promote access to natural resources for all, as it is part of the public interest to do so (section 25(4)). The protection of the rights were made subject to the power of the State, which is a contradiction in ideology. There is a myriad of other problems with this judgement, such as legality – the court overstepping its power in interpretation – but the underlying contradiction, I believe, was the primary cause of this interpretation.

Without delving deeper into linguistic and ideological inconsistencies, the contradiction shown above is enough to identify the problem. You cannot limit and obligate the State in one sentence, as these concepts of the limited State and the involved welfare State are contradictory in their essence.

Conclusion

Constitutional rights discourse is a grandiose balancing act, which is itself very complex. However, the situation becomes even more complicated when the role of the State is not ideologically singular, as it is in the United States. We are not just balancing individual rights with each other; we are also balancing the limitation of the State with its welfare obligations.

The first balancing act is not a problem, because the compromise between individual rights can amount to a win-win situation, as no right categorically excludes another (by these rights I mean the normal rights of freedom, not the welfare rights). Balancing the limited State with the welfare State is a much more problematic aspect, as these concepts are mutually exclusive. You cannot limit the State by obligating it to do something.

We have a long way to go in our rights discourse to solve these ideological impasses, and we cannot simply ignore these contradictions in the Constitution and hope for the best. How to balance these contradictions? I truly have no idea, but what I do know is that these contradictions need to be addressed in order to avoid that the purpose of these rights, i.e. ensuring the freedom of the people, is not snuffed out.

  • Rory Short

    ” i.e. ensuring the freedom of the people, is not snuffed out.”

    Absolutely. The place I always want to start from is that rights belong to citizens, the State is not a person, it is a legal abstraction, therefore it cannot have any rights. As a legal abstraction it is obliged to enforce the rights of the persons who comprise the State. The rights of people must be of general application otherwise they cannot claim to be rights but are special favours and therefore unjust and not enforceable by the State. When someone purchases land they surely should only be seen as the owners of the minerals attached to the land if the minerals were definitely known to exist at the time of the purchase. Whilst the minerals are unknown it would surely be okay for the State to be their custodian if they are discovered? The land owner could block access to the minerals via the owner’s land however.

  • Barry Saayman

    “If you look at the Bill of Rights of the United States and Canada, you see many of the same rights we have, for example freedom of expression, freedom of movement, rights of the accused, etc. But in South Africa’s Constitution you find socio-economic rights (I’ll call them ‘welfare rights’) such as:
    Section 26, the right to housing;
    Section 27, the right to medical care, food, water and social security;
    Section 29, the right to education.
    You do not find these in other constitutions sharing the same legal background, and the question is: why?
    The answer is very simple: it contradicts the underlying philosophy of constitutional rights – that being to limit the power and influence of the State and thereby ensuring individual freedom.”
    – Johan van der Merwe

    This is the first scholarly article that I am aware of that questions the ideological foundations of the widely applauded “best liberal constitution in the world”.

    I wish I knew whether the honorable justices of the Constitutional Court were unaware of the identified ideological contradiction when they certified the Constitution, 1996 in terms of section 71 of the Constitution, 1993?

    Moreover, I note that the mentioned “welfare rights” or so-called “socio-economic rights” were neither included in the Constitutional Principles negotiated by the Kempton Park Multi-Party Negotiation Forum nor in the Chapter 3 Fundamental Rights (sections 7-35) of the interim Constitution, 1993. Constitutional Principle II is self-explanatory.

    “Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution.”

    The existing social contract in SA is in my opinion abusive. The questions are whether the welfare rights for all, and not only for the poorest of the poor, are “justiciable” provisions in the Bill of Rights and a morally justifiable obligation on impoverished taxpayers, in a multi-party democracy, that receive about nothing in return for their contributions? I will be surprised if this opportunistic and exploitative social contract will be acceptable to the taxpayers in any other country in the world.

    “You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it.” – Adrian Rogers

    The communist/socialist controlled Constitutional Assembly slipped stipulations into the Constitution, 1996 that promote their ongoing racist, seditious, and Marxist-Leninist-Fanonist inspired National Democratic Revolution (NDR).

    http://amadlandawonye.wikispac

    I identified the following obligations with financial implications placed on the State in the Constitution, 1996 that effectively chain the all future governments to promoting socialism/communism-

    – subsection 6(2) – obligation on the State to develop and promote indigenous languages;
    – subsection 7(2) – obligation on the State to respect, protect, promote and fulfil the rights in the Bill of Rights;
    – subsection 8(1) – The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state;
    – subsection 9(3) – Equality;
    – subsection 25(5) – obligation on the State to ensure access to land on an equitable basis;
    – subsection 25(8) – obligation on the State to achieve land, water and related reform, in order to redress the results of past racial discrimination;
    – subsection 26(2) – obligation on the State to supply adequate housing;
    – subsection 27(2) – obligations on the State regarding health care, food, water and social security;
    – subsection 28(1)(h) and 35(2)(c) – obligations on the State regarding legal representation at state expense;
    – subsection 29(2) – obligation on the State regarding education.

    The resultant bloated public service and ever growing budget deficits are in my opinion unaffordable to the already overexposed and exploited taxpayers of South Africa and will undoubtedly lead to a failed State.

    Negotiated Constitutional Principle XII(5) makes clearly provision that the “determination of national economic policies……. should be allocated to the national government”.

    National economic policies hamstrung by forcing costly welfare obligations, such as free higher education for all, on captured taxpayers are one of the paradoxes threatening our collective future. Without rapid economic growth this situation can only deteriorate further and will never improve. And economic growth is in my opinion hampered by the ongoing NDR and certain provisions in the Constitution, 1996.

    Moreover, Constitutional Principle V is in conflict with the trias politica principle as well as Constitutional Principle VI. Nobody in his or her right mind will have a problem with affordable government programs to improve the quality of life of the poorest of the poor with the emphasis on “affordable”.

    It is also hard for me to understand how South Africa can in terms of subsection 1(a) strive towards the “achievement of equality and advancement of human rights and freedoms” and outlaw servitude/slavery in terms of section 13 of the Constitution, 1996 whilst some South Africans are elevated above the rest of us and protected ad infinitum by among others sections 143(1)(b), 211, 212 and 219(1)(a) of the Constitution, 1996. Financing 10 Monarchies and more that 3000 (or is it 6000?) other traditional leaders and royalty with the contributions of taxpayers that don’t recognise tribalism is fundamentally questionable. Alternative ways to give effect to Constitutional Principle XIII should in my opinion be explored.

    The flawed, self-contradictory and ideologically compromised Constitution, 1996 is in my opinion responsible for much of the misery in the supposedly democratic post-colonial/post-apartheid Republic of South Africa.

    I wish that one could somehow appeal against the certification of certain problematic stipulations in the Constitution, 1996 – the fact that the Constitutional Court of South Africa, with the certification of the 1996 Constitution twenty years ago, and in many other cases, acted as the court of first instance without any right for affected citizens to appeal against the judgments of the Constitutional Court is in my opinion morally reprehensible, authoritarian, undemocratic, intolerant of dissent and in terms of the principles of Roman Dutch law absolutely irregular.

  • Harald Sitta

    Well, the ideologically driven extension of fundamental rights like socio-economic “rights” and the invasion of the realm of civil law relation by aggressively interpreted “human rights’ actually destroy the essence of fundamental rights.