Two of South Africa’s leading jurists have warned of the threat posed to the country’s constitutional democracy by the government’s failure to implement the social and economic rights enshrined in the constitution.
Retired judge and University of Cape Town (UCT) honorary professor of law Dennis Davis and Geoff Budlender SC addressed gatherings at UCT last week, Davis as part of the university’s summer school programme and Budlender in the UCT distinguished alumni lecture on the state of the rule of law in South Africa.
Previous surveys have highlighted the growing disillusionment with democracy among citizenry.
Davis and Budlender referenced elements in society wanting to overhaul or change the constitution, with Davis pointing out that the MK Party, EFF and the PA, which combined got 28% of the vote in the last general election — “a serious number” — were not committed to the constitution in its current form and wanted to change it in whole or in part.
“I am concerned about the state of democratic play in South Africa,” Davis said, adding that the international context was one of a lurch towards authoritarianism and growing discontent across the world with constitutional democracy. He cautioned, though, that South Africa had not yet crossed the red line into authoritarianism, as the constitution was still intact. However, there were warning signs.
Budlender also noted that “there is increasing critique of the constitution. It is said to be an unsatisfactory compromise concluded in 1996; it is said to protect vested rights against the rights of the most desperate; it is said to be a colonial import; and it is said to give the courts too much power to determine the lawfulness of government conduct.”
Davis remarked on the “monumental failure” of government’s economic policy since 1994 and in the implementation of the socioeconomic rights in the constitution, which include the rights to housing, water, health care services and education, among others. Inequality now was greater than when the constitution was adopted.
“Are we surprised that an increasing number of people look upon our constitutional arrangements with scepticism?” Davis asked. “That is a crisis which impacts upon the long-term stability of the constitution.”
Are we surprised that an increasing number of people look upon our constitutional arrangements with scepticism? That is a crisis which impacts upon the long-term stability of the constitution.”
— Dennis Davis, retired judge and UCT) honorary professor of law
Budlender added that “a constitution cannot survive if it does not have popular support. It will have popular support when people can see that the constitution is for everyone, including them. That means implementing the social and economic rights. That is the challenge which we now face.”
Also key to the maintenance of a constitutional democracy, according to Davis, is the strength of a country’s institutions, some of which had been degraded. “Institutions matter” and are important for economic development and for political, social and economic stability, Davis said. He quoted from the findings of Nobel Prize laureates who found that countries with strong institutions had higher rates of inclusive economic growth.
While the Reserve Bank and Sars were “outstanding”, the National Prosecuting Authority and the judiciary had been weakened, the Competition Tribunal was dysfunctional, there were profound problems in the police and educational system, and questions could be asked about the strength of the legal profession and the media. Corruption was rife with no high-profile prosecutions.
Davis said he was “extremely anxious” that just a few months before the departure of Sars commissioner Edward Kieswetter, no successor had yet been found. He also noted that the dysfunctionality of the Competition Tribunal, which took far too long to reach a decision, acted as a disincentive for investment through mergers, with investors going elsewhere. Cases were referred to the Constitutional Court, which did not have the expertise to deal with them.
The toxic atmosphere at the tribunal under chairperson Mondo Mazwai has been highlighted in the media and by the National Education, Health and Allied Workers Union.
There was also a need for electoral reform, as too much power was vested in the president and party bosses with little accountability to the electorate.
Both Davis and Budlender called for an overhaul of the Judicial Service Commission (JSC), which recommends names to the president for the appointment of judges. Davis said the JSC was not doing its job properly, while Budlender believed there should be fewer politicians and more representatives of the legal profession on it.
“There is widespread concern that the courts have been weakened by the JSC process,” Budlender said. “The JSC has not achieved its intended objectives,” though he noted that the courts’ commitment to the rule of law — especially during the state capture years — had been exemplary.
While the judiciary was now very substantially transformed in demographic terms, “the time has come to say that there is widespread concern about whether we are achieving the standards of excellence to which we all aspire, and which we need,” Budlender said.
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