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Q&A: The South African Constitution

- Wits University

Constitutional expert, Professor Cathi Albertyn, answers your questions on the South African Constitution, the bedrock of South Africa’s democracy.

 Streets of Braamfontein © Chanté Schatz | Curiosity 17: #Democracy ©

How has the Constitution helped to shape South Africa's political landscape?

Constitutions typically set out the institutions, rules and principles that organise power and decision-making within a state and identify the rights and duties that govern the relationship between the state and its people. The Constitution of the Republic of South Africa establishes a constitutional democracy where a representative parliament and an independent judiciary are important features of our political landscape.

A commitment to a universal franchise, regular elections and a multiparty democracy, based on proportional representation, means that Parliament is representative of multiple parties.

Critically, an independent judiciary is authorised to interpret and enforce the Constitution which means that courts play a central role in holding the exercise of public power to account. People can go to court to vindicate their rights – from the right to vote, to rights to non-discrimination, socioeconomic rights to housing, healthcare, water, social assistance and education. Courts can hold Parliament, the Executive and public officials to account, which means that the courts play a significant role in the fight against impunity and corruption. Various political battles have spilled over into the courts, including faction-fighting within the ANC as well as highly publicised litigation around President Zuma and those associated with state capture. Sometimes referred as lawfare, this means that the courts are used multiple times to delay accountability in what is often called the ‘Stalingrad strategy’.

How does the Constitution ensure accountability and transparency in government?

The establishment of an accountable, responsive and open government is a cornerstone of our democracy. Parliament, the courts and Chapter Nine Institutions all play a role in ensuring accountability and transparency.

Apart from its central role in law-making, Parliament is tasked with scrutinising and overseeing government action. This allows Parliament and its Committees to call the President, Ministers and government officials to account for implementing laws, service delivery, public expenditure, and allegations of maladministration. Parliament must also approve the annual budget. There has been substantial criticism of Parliament’s weak oversight role in the past, often arising from party loyalty. Parliament’s reluctance to hold the Executive to account was highlighted when the Constitutional Court found that it failed to ensure that President Zuma complied with remedial action ordered by the Public Protector in respect of irregular expenditure at his Nkandla private residence.

The supremacy of the Constitution means that all law and conduct that is inconsistent with the Constitution and the Bill of Rights is invalid. Where Parliament, the Executive and public officials violate the Constitution, citizens may go to court to enforce the Constitution. 

How does the Constitution address issues of educational inequality and promote equal opportunities for all students?

The Constitution guarantees a right to basic education, including adult education. This is given content in legislation, particularly by the South African Schools Act. This right has grounded a number of cases to address ongoing educational inequalities, ranging from discrimination in access, to universal norms and standards for schooling and the provision of desks, teachers and textbooks. While all of these cases have been successful, the implementation of court orders tends to be subject to significant delays. In addition, matters relating to the quality of education and successful educational outcomes are probably beyond the purview of courts.

The Constitution also guarantees the right to further education which the state is bound to make ‘progressively available and accessible’. At the core of equality in the higher education system is funding. While universal funding is not guaranteed in the Constitution, it does require the progressive roll-out of such funding and probably prevents its unreasonable and irrational roll-back. For example, a recent retraction of National Student Financial Aid Scheme funding from students doing a postgraduate LLB at Wits was overturned on review, against the broad backdrop of the Constitutional educational right.

How does the Constitution handle the concept of land expropriation without compensation, and what implications does it have for land ownership and redistribution?

The Constitution addresses the land question in Section 25 by setting out the broad framework for restitution and redistribution but it leaves the details of these processes to be defined in policy and law. On the question of expropriation, Section 25 provides that expropriation, for a public purpose or public interest, must take place under a law of general application and is subject to compensation. The amount of compensation must be ‘just and equitable’ and be approved or decided by a court, which must balance the public interest and the interests of those affected.

Whether this compensation may amount to ‘nil’ has been the subject of heated debate. One side argues for certainty in the constitutional text (thus advocating for a constitutional amendment). These are split between those who state that there is no duty to compensate (expropriation without compensation) and those who would keep the duty but specify that this might amount to ‘nil’. The other side argues that ‘nil’ compensation is permitted by the Constitution, but that the Expropriation Act must be revised to guide government and the courts to enable this under specified circumstances.

The latter view aligns with the general idea that the Constitution provides a broad normative and enabling framework for social and economic transformation, that is flexible and designed to endure. It is in the details of policies, laws and programmes – and their implementation and enforcement – that real transformation becomes possible. Here, the question is whether the Expropriation Reform Bill, currently before the President for signature into law, is up to the task.

How does the Constitution contribute to tackling unemployment and inequality and fostering inclusive economic growth in the country? Is that part of its role?

The Constitution establishes a vision of an egalitarian society based on social justice, human dignity, and the achievement of equality and freedom. This can be seen to envisage a redistributive social democracy, and constitutional rights and principles can be interpreted to enable, defend and advance quite radically redistributive measures. However, the Constitution does not specify a particular economic policy, the choice of which falls to the government of the day.

Among the principles and rights that foster an inclusive economy are the constitutional commitment to achieving equality and the Section 9 equality rights that permit positive measures. These enable, for example, black economic empowerment. In addition, non-discrimination and affirmative action under Section 9, and the right to fair labour practices, trade unions, and collective bargaining in Section 23 help foster an inclusive labour market. The detail, of course, falls to policy and legislation.

Overall, the rights and principles of the Constitution can be drawn on in multiple ways to advocate for greater economic transformation, to defend economic transformation and redistribution where it does takes place and, more rarely, to call out government in court when it fails to assist those in need.

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  • Cathi Albertyn is a Professor in the Wits School of Law. She is known for her work in Constitutional Law and has served as a commissioner on the Commission for Gender Equality and the South African Law Reform Commission.
  • This article first appeared in Curiosity, a research magazine produced byWits Communications and the Research Office.
  • Read more in the 17th issue, themed: #Democracy, we turn to our academics and professional staff for their research, perspectives and commentary on both the progress and shortcomings in our democracy, and democracies elsewhere.