The South African Civil Society Information Service

Can the Constitution Respond to the Challenge of Addressing South Africa's Inequality?

29 Aug 2014

SACSIS caught up with constitutional law expert Prof. Pierre de Vos, author of the blog, Constitutionally Speaking, to talk about how the South African constitution could be applied to deal with South Africa’s most pressing challenge, our country’s inequality.

On the question of whether our constitution could be applied to encourage more redistributive measures, de Vos argues that the constitution doesn’t have the power to change South Africa’s economic policies. Voters are the ones who can change policies and they must demand change. The problem unfortunately, according to de Vos, is that it is citizens themselves who allow political parties to present rather limited options for addressing inequality to them.

Prof. Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance and he teaches in the area of constitutional law at the University of Cape Town. He is interviewed by the executive director of SACSIS, Fazila Farouk.

Transcript of Interview

FAZILA FAROUK: Welcome to the South African Civil Society Information Service, I’m Fazila Farouk coming to you from Cape Town today.

The South African Constitution has been hailed as one of the most emancipatory doctrines by people all over the world. In fact, Archbishop Desmond Tutu recently wrote that “our constitution is so inclusive, so tolerant and so compassionate that it would make God proud.”

But while we may have a constitution that is regarded as one of the most progressive in the world, South Africa is entering its third decade as a democracy and the defining feature of our country is that we are a divided nation. South Africa is the most unequal country in the world.

How do we reconcile this contradiction? How does a country that has such a forward thinking constitution allow such a backward situation to exist?

My guest today is an expert on the South African Constitution and we are going to talk to him about how the South African Constitution is responding to South Africa’s biggest problem, our nations inequality.

We are talking to Professor Pierre de Vos. Professor de Vos is the Claude Leon Foundation Chair in Constitutional Governance and he teaches in the area of constitutional law at the University of Cape Town.

Welcome to SACSIS Pierre.

PIERRE DE VOS: Thank you very much.

FAZILA FAROUK: Pierre, I’d like to start the conversation off by asking you a very basic question because when we talk about something so important it’s important that people understand what we’re talking about. So can you tell us what the purpose of a country’s constitution is before we go any further?

PIERRE DE VOS: Yes, if you have a constitution that is a supreme constitution and a normative constitution, it does a few things.

Firstly, it actually sets out the rules of the political game – how parliament operates, how the executive operates, how the courts operate and so on. So that’s the first thing.

Secondly, it then contains protection of the rights of individual people so that even if you are not part of a political majority or if you’re unpopular or if something, for some other reason you are threatened that your rights will not be recognised or protected, the constitution does that and it can be enforced by the courts. So it – the constitution really is not only – it sets the rules of the game, but it’s also supposed to impose a kind of value system on society. So it contains certain values that find their way then into the Bill of Rights and into those specific rights that protect every bodies rights, or is supposed to at least. 

FAZILA FAROUK: So what’s so special then about the South African Constitution? Why it is hailed as such a progressive document?

PIERRE DE VOS: There are many traditional constitutions across the world that is more old school liberal constitutions. And those constitutions often see the biggest threat to individual citizens as being the state.

Our constitution is a little bit different. It says that power is held not only by the state. It’s also held by big corporations. It is held by other institutions that can also easily affect your rights, whether it’s now a big cellphone company or whether it’s a mining company, as we know from Marikana or anybody else. These are all huge role players with a lot of power and the constitution binds all of them, not only the state. So that’s the first thing.

The second thing is that the constitution contains a whole set of rights that are not traditionally included in the Bill of Rights, a set of social economic rights like a right of access to housing, a right of access to healthcare, a right to education, you would be surprised to hear, a right to environment, a healthy environment -- and also an equality clause that says equality is not really about just treating people exactly the same, because that would freeze the status quo in the inequality, but that equality is about the end result.

Equality is about substance, whether in the end, people are capable of actually fulfilling their true potential and it requires therefore some positive steps to be taken and even for people to be treated differently so that everybody has a fair chance.

That’s very different from the old school liberal constitution, which says you must be treated the same whether you are the poorest or the richest person because it doesn’t matter whether you have an equal chance in life. It is just whether the law is going to treat you equally.

FAZILA FAROUK: I am very interested in this aspect of it that talks about people achieving their full potential. You know our constitution was meant to be a bridge from our divided past taking us into a more inclusive future where everybody would reach their full potential. But clearly it seems to have failed dismally in terms of achieving that goal. I mean, why do you think that’s the case?

PIERRE DE VOS: Well, you know the constitution is not a magic bullet. I think for some of us, at least, when the constitution was adopted we thought it will change everything. We thought that the judges will come, they will make robust rulings - forget about the politics - and they will just give people all these rights and it will just rectify the injustices and the inequalities.

But, of course, the courts have limited powers. They are not elected, so they don’t have the same kind of legitimacy. So it depends for its realisation not only on the courts but also on the legislature and the executive. And I think there has been some difficulties on the part of the legislature and the executive really to come to grips with the equality – with…really disturbing those deeply entrenched apartheid patterns.

So you need the court to make judgments of course to try and disturb it, but in the absence of the legislature and the executive really taking seriously this issue, you’re not going to change anything. So that’s for that reason why, for example, if you look around you, its so surprising that you still get townships there faraway from the city where people are poor and then you get the city where people are relatively well to do. Those barriers have not been broken. Policies have not been implemented to actually deliberately try and break that apartheid thinking.

And so, I think that is one of the reasons at least for for the constitution not fulfilling its complete promise because it requires political will also. And you can't only require or rely on the judges to do this.

FAZILA FAROUK: Does our constitution say anything at all about economic justice because that’s one of the drivers of our inequality.

PIERRE DE VOS: The constitution…you know, it’s…there’s a lot of discussion in the academinc circles about what values are actually underlying the constitution, because when it was negotiated, you can imagine it was the ANC, it was the then-National Party, FW De Klerk…So it was always going to be controversial to include specific economic goals or programmes.

FAZILA FAROUK: But let me just stop you there. It’s been pretty specific about a whole lot of other things.

PIERRE DE VOS: Yes, but I think for reasons that has to do with the realities of 1994 and the fact that there was really also not only a political compromise there was also an economic compromise where all the big companies and big business and the ANC basically agreed that “Well, if you leave us alone we will leave you alone.” So, in that context, political context, I suspect that it was not thought possible politically and economically to actually include those things in the constitution that will fundmentally threaten the vested interest of big business and so forth -- and so it was never included.

FAZILA FAROUK: So the question then is, as it stands now, is there anything in this constitution, any articles that we can use to bring about a more just and inclusive society -- to bring about this economic justice, or are we talking about, perhaps, constitutional reform going forward?

PIERRE DE VOS: Yes. I mean you know, it also depends on how it’s, of course, its interpreted by the courts. So I have criticised our courts sometimes for being a bit too timid and not for not embodying a more progressive social justice vision of the constitution.

Because judges, although the constitution is law, you cannot just…judges cannot just invent things. But there (is) always a little bit of leeway for interpreting the constitution either a little bit more to this side or to that side. And the courts have been relatively conservative because lawyers are usually quite conservative in their politics.

But despite that I think there are provisions in the constitution that can be used very powerfully. The property clause, for example - there is a whole section there that says land reform is not only permitted but it is required. And you don’t…the willing buyer, willing seller kind of policy in which you have to pay the market related price only to somebody who is willing to sell their farm, that is not in the constitution. So you don’t have to have that. There can be a far more radical land reform programme that is going to cost far less than has been the case for the last 20 years if there have been political will, so that’s one thing.

The equality clause, although it doesn’t include a prohibition…on discrimination based on economic status. It does say that you have to - you cannot be discriminated against because of your circumstances. So I think the lawyers also we…us as lawyers, can do more, for example, to use that equality clause along with other clauses like there’s a right to education as I’ve said in the constitution to challenge say the policies, existing policies, which entrench the unequal education system. Because education is one of the root causes of the continued skewed inequality.

And the courts have said that its going to be very powerful if you can invoke equality with another right like the right to education, or the right to housing or healthcare or whatever to say well, there are these huge inequalities and the state policies, actually, instead of breaking that down, (are) perpetuating it.

But for that you need clever lawyers because -- and sadly, this is the way the law works, you need money because the lawyers don’t work for free. It costs a lot of money to run a case. And you need one or two brave judges. The constitutional court has ben relatively good, but maybe it's time for them to be a little more brave. 

FAZILA FAROUK: Well, I’m glad you touched on this issue of the lawyers themselves because my next question to you was going to be about people who engage in social justice activism and who use the law and the constitution to advance the goals of social justice. Do you think that people are thinking creatively enough in terms of applying the law?

PIERRE DE VOS: I think, it depends who were talk about. It’s difficult to generalise.

I think there (have) been social movements, say like…one movement that is always held up as an example is the Treatment Action Campaign. Because what they did - they understood that you don’t always win only by going to court. You can use the court strategically along with political work.

The problem with, especially lawyers, is that us lawyers sometimes think well you can solve everything by the law. You don’t have to politically organize people. you don’t have to ensure that citizens are active as individuals that they actually claim their rights, that they fight for their rights. Because often I think the change happens not in the courts, but it happens on the ground. Some organisations like the TAC uses both and have used it both, and then it works very well.

I mean, if you think today, we have a programme of anti-retroviral provision that in 2000 didn’t look like it was ever going to happen. Why did that happen? Because the courts were used, but 20-30 000 people were marching here to parliament to demad to it as well. And Cosatu came on board. You know..alliances were made.

So, one has to be politically more strategic I think about how you use it. So, that’s the first thing and then secondly, I do think there is more scope for for looking at those provisions in the constitution where you can really get to the inequality issues.  

FAZILA FAROUK: I appreciate your comments about the socio-economic rights and how we can be more creative about trying to ensure that people get those. But I mean the defining structural problem that we face is one around a distribution of resources and wealth in this country. Can you try and think about ways in which we can apply our consutition to bring about more redistributive measures in our country?

PIERRE DE VOS: Yes. that, that is very difficult actually to…ja, because I don’t want to pretend that the constitution is going to be this magic thing that can actually change  it.

But there, if I think about it, I think, there are of course ways in which it can be done. In a sense of, for example, the equality clause already contains a provision that says that redress measures, affirmative action, whatever you want to call it -- that that is not only permitted by the constitution, but the constitutional court has said it’s sometimes required.

Because if you don’t have redress measure, you just continue in the old way. And I think there are interesting ways in which we can start thinking about that jurisprudence of the court to say how can we apply affirmative action kind of principles not only in the employment field, but in the field of say, education, healthcare you know and so forth.

And I think our courts will be a little bit ameanable to that kind of thing because they already know affirmative action. They endorse it. They think it’s a good thing if it is done in the correct way. Sometimes it’s not done in the correct way, sometimes nepotistic.

But, so yes, there are some avenues for that. What it cannot do and I think that is what we have to honest about. The constitution is not really the document that is going to change the economic policies of the government. The voters are the ones that will change that because voters…its not only…the constitution is not the one with power, it’s the voters who have the power. And the voters have to demand from those political parties that they vote for or even the ones that they don’t vote for to address these inequalities. To begin to transfer wealth in ways that are of course complying with the constitution. So there are certain rules. You cannot just take away from, say, somebody’s house without any compensation, unless the EFF comes to power, maybe they’ll change it. But the citizens themselves I think, there’s a need for citizens to understand that they have a role to play and that they allow the political parties to present them with these, what is sometimes rather limited options about addressing the inequality.

FAZILA FAROUK: Professor Pierre de Vos, thank you very much for joining us at SACSIS.

PIERRE DE VOS: Pleasure.

FAZILA FAROUK: And thank you to our viewers and listeners for joining us at the South African Civil Society Information Service. And  remember if you want more social justice news and analysis, you can get that at our website at sacsis.org.za.

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