Ben Okri once wrote that it is possible that we know all too well “the awesome power of words, which is why we use them with such deadly and accurate cruelty”. Take four recurring words in the SA constitution — “within its available resources”.
They sound so dull and harmless. Yet, when mobilised by politicians, with the support of the Constitutional Court, they are anything but. These four words have become the state’s escape hatch. Based on Constitutional Court interpretations, these words allow the state to escape the responsibility of living up to the bill of rights, specifically the rights relating to access to housing, health care, food, water and social security.
In the Grootboom case, the Constitutional Court ruled that section 26 of the constitution does not expect “more of the state than is achievable within its available resources”.
“There is a balance between goal and means,” it ruled. “The measures must be calculated to attain the goal expeditiously and effectively but the availability of resources is an important factor in determining what is reasonable.”
The Grootboom ruling also referenced an earlier finding in the Soobramoney case, in which the court said: “What is apparent from these provisions is that the obligations imposed on the state by [sections] 26 and 27 in regard to access to housing, health care, food, water, and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled.”
The problem with these four words is that they have no countervailing clause in the constitution. Here’s why the writers of the constitution should have provided a countervailing clause. Let’s start with the concept of available resources. There are two determinants of available resources. Both involve levers controlled, directory and indirectly, by the state. In the first instance available resources are determined by economic growth, which in turn results in higher tax revenue collection. Economies grow because the state has created an environment conducive to investment, specially by the private sector.
Created imbalance
In the second, even if there is no expansion of economic activity, the state still determines available resources based on the expenditure choices it makes as well as how efficiently and effectively it spends the available resources. As former finance minister Trevor Manuel once reminded the nation: to budget is to choose. Therefore, state expenditure choices determine what resources will be available now and in future.
Yet the writers of the constitution did not acknowledge that the state determines what resources are available. So, by handing the state an escape clause from the responsibility of ensuring that bill of rights ideals are realised, the writers of the constitution created an imbalance.
Of all Constitutional Court judges, past and present, justice Ishmail Mahomed is to my knowledge the only one who realised this imbalance. He hinted at this in his judgment in the 1996 case in which Azapo had challenged amnesty for perpetrators of apartheid crimes.
He acknowledged that SA has neither the resources nor the skills to reverse fully the effects of colonialism and apartheid: “It will take many years of strong commitment, sensitivity and labour to “reconstruct our society” so as to fulfil the legitimate dreams of new generations exposed to real opportunities for advancement denied to preceding generations initially by the execution of apartheid itself and for a long time after its formal demise, by its relentless consequences.”
Seek refuge
Mohamed added that to facilitate the reconstruction of SA, “the resources of the state have to be deployed imaginatively, wisely, efficiently and equitably”. It is this test — the test of deploying state resources imaginatively, wisely, efficiently and equitably — that the state has failed, a failure that has been documented most recently by the Zondo state capture commission.
Unfortunately, it’s a test successive Constitutional Court rulings have not applied when dealing with cases in which the state was called upon to live up to the ideals of the Bill of Rights. Instead, the court’s justices have allowed the state to seek refuge behind the four words “within its available resources”.
The state remains unconstrained in how many flights of fancy it can take in its stewardship of public finances, and the poor must simply live with the consequences until, as the Constitutional Court rulings make clear, the state has resources available. That’s the awesome power of four words.
• Sikhakhane, a former spokesperson for the finance minister, National Treasury and SA Reserve Bank, is editor of The Conversation Africa. He writes in his personal capacity.
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