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Whither the Constitution?

- Wits University

Yasmin Carrim tells graduating students they must be equally apprehensive and excited about entering the legal profession.

It gives me great pleasure to address you on this very auspicious occasion. At the outset let me congratulate the graduating students on their wonderful achievements.

On Wednesday this week we celebrated Human Rights Day, which provided me with an appropriate occasion to reflect on matters of our democracy and Bill of Rights.

As you all know our Bill of Rights is unique and many other countries now seek to emulate it.  Our Bill of Rights was one the first in the world to recognise the transformative rights to education, health, housing and land. 

The core values found in the Bill of Rights are equality, dignity, transparency and accountability.

Since 1994, we have adopted an array of laws to promote equality, redistribution and inclusive growth. The Competition Act is one such piece of legislation through which we strive to create equal access to the economy.  Like our Bill of Rights it is also quite unique.  

Today in South Africa we enjoy freedoms that have become the envy of other nations. We have a vibrant free press, freedom of movement, freedom of expression, and State programmes to promote housing, health and education. South Africa is the largest welfare state on the continent, with approximately 17 million recipients of social grants, free housing for some 3 million families, free compulsory education and access to healthcare for the poor.

However the last decade has not been easy for us. Over this period we have witnessed what can only be called a perversion of our Constitutional vision. I do not want to traverse the many incidents that have ignited the nation’s anger. 

But it would be instructive to highlight some key observations.

The most significant development we have seen since 2009 has been the weakening of our law enforcement agencies, their lack of independence and non-compliance with their Constitutional mandates. Equally compromised have been members of Parliament in the exercise of their oversight functions. Thirdly we have seen government that has generally conducted itself with impunity and arrogance, without due regard to the needs of citizens. The fourth has been the large scale theft and utilisation of state resources for the benefit of a few politically connected individuals. The fifth has been the distortion and plundering of the public broadcaster.

The strategy of law-fare (warfare using the law) has been utilised by corrupt public officials to further their own ambitions at every turn. Sadly members of the legal profession have been – and continue to be – complicit in this conduct. 

The private sector and trade union leaders have also been implicated in this meltdown. 

On the economic front, things ground to a halt in South Africa, with growth figures just slightly below 1%, youth unemployment on the increase, incoherent economic policy and the widening of the inequality gap.    

On the positive side we have taken confidence in the fact that political parties have utilised constitutional mechanisms to resolve their disputes. Ordinary folk have seen and come to understand the workings of the Constitutional Court and the other high courts.  We have also witnessed an active civil society movement holding power to account through a variety of initiatives including litigation and mass demonstrations. Our investigative journalists have excelled themselves with exposing the abuse of state resources. We have observed the bravery of public officers such as the previous Public Protector Thuli Madonsela and a number of whistle blowers who have risked their lives for the sake of preserving our Constitutional order. 

However the events of the last 5 years in particular have raised a number of debates about our Constitutional framework. One of these pertains to the wide powers enjoyed by the President in the appointment of key public officials. The other pertains to the weaknesses of the PR system in that members of Parliament, which include the President, are not elected directly so citizens do not enjoy the power of recall. These are complex matters of electoral reform and cannot be addressed without considering the benefits that a PR system brings.

There are also debates about amendments to the Bill of Rights, s25 of the Constitution being topical at the moment.

A related and often neglected issue is the allocation of powers between national and province in relation to health, education, housing and water management. This allocation causes difficulties of developing, maintaining and monitoring consistent standards across the country in both public and private hospitals. A similar difficulty exists in education and housing. The problems in water management have also come to light with the recent crisis in the Western, Eastern and Northern Cape. Black small scale farmers have been badly affected by the drought in those provinces and are falling between the cracks of national and provincial competencies.

In pondering these issues, I decided to conduct what economists like to call a thought experiment with rather extreme assumptions (as many economists like to do). We have a Bill of Rights.  In competition law that would be called the “factual” world. What would South Africa, as a democracy, look like without a Bill of Rights? In competition law this would be called the “counter-factual” world. One could run this thought experiment for each of the rights contained in the Bill of Rights and ask what would our world look like without the right to education, the right to health, the right to land and so forth? Because we have not enjoyed a pre-constitutional democratic order in South Africa (having only the oppressive Apartheid era to compare ourselves with) we cannot evaluate our counter-factual by reference to our own history. However we could postulate the world of the counter-factual by looking at other countries who have been able to set their countries on the path to economic recovery and social justice without a Bill o Rights such as ours.

The essential question we ask in this exercise is whether we would still be able to transform our country without a Bill of Rights such as ours? 

The answer to that is obviously yes - provided we had purposeful and progressive leadership. A country could be transformed without the enabling power of a Bill of Rights if its leaders through policies and programmes set it on that path. There are many countries in the world who have done just that.

Conversely, our country, no matter how beautiful its laws, will not achieve the Constitutional vision of a transformed and just society if its leaders keep dragging it back – either deliberately or through negligence – into inequality. 

The late Chief Justice Ismail Mohamed, described the Constitution “as a bridge from the past to the future”

The Constitution, as a bridge to the future, enables any government in South Africa today - at a national, provincial or local level - to embark on programmes which could on the one hand redress the injustices of the past and on the other reduce the inequality of the present. Nothing stops them except themselves.

This is not to say we must not have the debates or not amend the Bill of Rights for the benefit and protection of its enabling power. To do otherwise would be inconsistent with the precepts of the very Constitution itself. However it will behove us to engage in principled – not populist - debates about the issues, to first unpack the contents of the current provisions and to identify carefully the underlying causes of state failure. 

Just like in medicine, if we get the diagnosis wrong, the prescribed medication will not cure the problem. 

Let me pause for a moment and remind myself that you graduating students must be equally apprehensive and excited about entering the legal profession. The study of law can be interesting and sometimes inspiring. The practice of law is a lot more interesting and always exciting.  

But the path to finding your own comfort zone as a professional will not come without a degree of elbow grease, burning the midnight oil and tolerating grumpy bosses. 

Which brings to mind one very grumpy boss that I encountered along the way. 

Namely the late CJ Ismail Mohamed himself. During the course of one hearing at the Concourt he was so disgruntled with the arguments being made by an eminent SC that he interrupted the poor chap before he had even finished his opening sentence. The advocate struggled through the next hour trying to get in a word edgewise – every time he opened his mouth to say “Justice” he was interrupted again. And so it went with Justice Mohamed putting up opposing propositions at different times. At the end of the hour Justice Mohamed fell quiet and then said “Well what do you say - have you got any other submissions to make?” The advocate replied “No Justice, except to congratulate you for presenting a well-argued case for both sides”.

Lawyers - after dentists – are the most parodied professionals in the world. So you are likely to become the butt of many jokes. You might not know this but in reality there is only one lawyers’ joke – the others are all true stories.

But to demonstrate the truth of this statement let me provide you with some real evidence. One witness in the bread cartel case was found to have lied under oath in our proceedings. We decided to make an example of him and sent a young lawyer to report the crime to the Sunnyside police station. “What is the crime you wish to report?” asked the officer in charge “Perjury Officer” was the answer. The officer wrote it down slowly asking for help in the spelling. “Ok” he said “and what weapon was used in the commission of this crime?” Without missing a heartbeat our chap replied with hands out “His tongue?”

As I said the practice of law is a lot more interesting.

In ending I would like to say congratulations again to all of you today. Congratulations to your parents and loved ones too. Good luck to you all.

About Yasmin Carrim 

Yasmin Carrim is a full time member of the Competition Tribunal of SA, that adjudicates on matters involving anti-competitive conduct and its effects.

An attorney by profession, Carrim holds qualifications in science, law and commerce and has worked as an activist, a lawyer, a teacher and a business leader. 

Renowned for the diversity of her skills and her broad experience, Carrim has previously served on the National Consumer Tribunal of South Africa and has more recently as an Acting Judge in the North Gauteng High Court. 

Carrim has held several positions in the corporate environment whilst maintaining her involvement in human rights activities and civil society. 

She served as the Group Executive responsible for Regulatory Affairs at MTN South Africa and as a Councillor on the Independent Communications Authority of South Africa. She was a director at the law firm Cheadle Thompson and Haysom and a founding trustee of the Women’s Legal Centre. She also served as a researcher to Justice Catherine O’Regan at the Constitutional Court during its founding years. 

At the same time, Carrim has maintained her involvement in human rights and development issues through her involvement in non-governmental organisations. She serves on the boards of the Soul City Institute for Health andDevelopment Communication and the Open Society Foundation SA. 

She has also co-edited a handbook on telecommunications regulation in South Africa.