FW De Klerk Foundation Conference on Uniting Behind the Constitution

FW de Klerk Foundation Conference on Uniting Behind the Constitution

2nd February 2013 Dr Holger Dix, Resident Representative of the Konrad Adenauer Foundation for South Africa, and former President FW de Klerk.

On Saturday, 2 February 2013, the FW de Klerk Foundation hosted a successful conference at the Protea Hotel President in Bantry Bay, Cape Town. Themed “Uniting Behind the Constitution” and held in conjunction with the Konrad Adenauer Foundation, the conference was well attended by members of the public and a large press contingent. The speakers included thought leaders from civil society, business, academia and politics.

This publication is a compendium of speeches presented on the day (speeches were transcribed from recordings), each relating to an important facet of the South African Constitution. Each speech was followed by a lively panel discussion, and panelists included: Dr Lucky Mathebula (board member of the FW de Klerk Foundation), John Kane-Berman (CEO of the South African Institute for Race Relations), Adv Paul Hoffman (Director of the Southern African Institute for Accountability), Adv Johan Kruger (Director of the Centre for Constitutional Rights), Dr Theuns Eloff (Vice-Chancellor of North-West University), Adv Johan Kruger SC (Acting Judge and board member of the FW de Klerk Foundation), Michael Bagraim (President of the Cape Chamber of Commerce), Prince Mangosuthu Buthelezi (Leader of the IFP) and Paul Graham (Executive Director of the Institute for Democracy in South Africa).

UpholdingCelebrating Diversity South and W orkingAfrica’s for National National Unity in South Accord Africa Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Contents

Welcome and Introduction 3 by Dave Steward, Executive Director of the FW de Klerk Foundation

Welcome 3 by Dr Holger Dix, Resident Representative of Konrad Adenauer Foundation for South Africa

The Constitution after 19 Years 4 Address by Sipho Pityana, Chairman of CASAC

Uniting Behind the Constitution in Support of 8 Non-Racialism and Human Dignity Address by Prof Frans Viljoen, Director of the Centre for Human Rights, Faculty of Law, University of Pretoria

Participating Panelists 13

The Constitution and the Equality Clause 14 Address by Dr Anthea Jeffery, Head of Special Research at the SAIRR

Image Gallery 19

Uniting Behind the Constitution in Support of 20 the Rule of Law Address by Adv Jeremy Gauntlett, SC

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Uniting behind the Constitution in Support of 26 Genuine Multi-Party Democracy Address by Mosiuoa Lekota, Leader of COPE

Image Gallery 31

Closing Remarks 32 by Former President FW de Klerk

COVER PHOTO BY: Chris Kirchhoff (Source: www.mediaclubsouthafrica.com) ©

Uniting Behind the Constitution 1 Contents

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa The FW de Klerk Foundation

The Foundation is a donor-funded organisation with a small operating budget. Its executive director, Dave Steward, a former UN ambassador, was FW de Klerk’s chief of staff when he was president. The Foundation supports and promotes the Constitution, the Bill of Rights and the Rule of Law through the activities of its Centre for Constitutional Rights.

In addition, the Foundation: • Organises dialogues where community leaders and government members informally discuss concerns, relationships and solutions. • Supports balanced transformation. It promotes discussion on the need for national consensus on economic and social transformation. • Supports selected charities. In the past three years it has distributed more than one million rand to children’s organisations and educational programmes. • Participates in the national debate through speeches, conferences and articles. • Internationally it shares South Africa’s conflict resolution experience with divided societies and supports the rights of ethnic, religious and cultural communities around the world.

For more information, visit www.fwdeklerk.org

Celebrating Diversity and Working for National Unity in South Africa Centre for Constitutional rights (CFCR) Celebrating Diversity and Working for National Unity in South Africa

The Centre for Constitutional rights (CFCR) operates as a unit of the FW de Klerk Foundation and reports to the Foundation’s Board through the executive director, Dave Steward. The CFCR’s mission is to uphold and promote the Constitution.

The CFCR’s goals are: • to promote the values, rights and principles in the Constitution; • to monitor developments - including draft legislation - that might affect the Constitution or constitutional rights; • to inform people and organisations of their constitutional rights; and • to assist people and organisations to claim their rights.

The CFCR’s activities include: • promoting the Constitution through participation in the national debate; publications, newsletters, articles, conferences and the CFCR’s website; and production and dissemination of legal opinions. • interacting with government and interested groups with a view to upholding constitutional rights and values, including making submissions to parliamentary portfolio and select committees regarding draft legislation. • monitoring developments that might affect the Constitution by following and analysing political initiatives, the deliberations of Parliament and the decisions of the Constitutional Court and other courts. • informing South Africans of their constitutional rights and how to claim them by means of publications and the Centre’s website. • assisting South Africans to claim their constitutional rights through provision of advice and, where necessary, through litigation.

For more information, visit www.cfcr.org.za

Konrad-Adenauer-Stiftung (KAS) Upholding South Africa’s Constitutional Accord Upholding South Africa’s Constitutional Accord

Freedom, justice and solidarity are the basic principles underlying the work of the Konrad- Adenauer-Stiftung (KAS). The KAS is a political foundation, closely associated with the Christian Democratic Union of Germany (CDU). In our European and international cooperation efforts we work for people to be able to live self-determined lives in freedom and dignity. We make a contribution underpinned by values to helping Germany meet its growing responsibilities throughout the world. We encourage people to lend a hand in shaping the future along these lines. With more than 70 offices abroad and projects in over 120 countries, we make a unique contribution to the promotion of democracy, the rule of law and a social market economy. We cooperate with governmental institutions, political parties, civil society organizations and handpicked elites, building strong partnerships along the way. In particular we seek to intensify political cooperation in the area of development cooperation at the national and international levels on the foundations of our objectives and values. Together with our partners we make a contribution to the creation of an international order that enables every country to develop in freedom and under its own responsibility.

For more information, visit www.kas.org.za

Uniting Behind the Constitution 2 with the Konrad Adenauer Foundation

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Welcome and Introduction* by Dave Steward, Executive Director of the FW de Klerk Foundation

The transformation of South Africa began helped us to progress toward the vision that it articulates, of a 23 years ago with a speech that President FW de Klerk society based on human rights, equality, the Rule of Law, and delivered in Parliament on 2 February 1990. The result of the genuine multi-party democracy. We do so at this time in the ensuing inclusive negotiations was the adoption of a non- evolution of our constitutional democracy because we believe racial Constitution based on equality, human dignity, the that the vision that it expresses and the values that it articulates enjoyment of human rights, the supremacy of the law, and contain the guidelines for the solution to the many challenges the establishment of genuine multi-party democracy that is that now confront us. Accordingly, we think that it is now committed to openness, accountability and responsiveness. more important than ever for all South Africans, regardless of An interim Constitution was adopted in 1993 on the basis their political affiliation, to unite behind the Constitution. of which South Africa held its first inclusive and universal Our partner in hosting the conference is the elections in April 1994. Our final Constitution was adopted Konrad Adenauer Foundation of Germany who have worked in 1996. Since then the Constitution has in a very real sense frequently with us in the promotion of constitutional become the foundation of our young and still fragile non- values. And I would now like to invite the head of the racial democracy. Konrad Adenauer Foundation in South Africa, Dr Holger Dix, The purpose of our conference today is to consider how the also to say a few words of welcome. Constitution has fared since then, and in particular how it has

Welcome* by Dr Holger Dix, Resident Representative of the Konrad Adenauer Foundation for South Africa

the essential tasks for all true democrats and friends of your Mr President, Madam Premier, ladies and country. The commitment of the FW de Klerk Foundation gentlemen, I would like to welcome you on behalf of the and other civic organisations to defend and safeguard the Konrad Adenauer Foundation to this conference. It is the first Constitution is one of the pillars of the South African democracy time that I attend this event as a new representative of the development. We, as the Konrad Adenauer Foundation, are Konrad Adenauer Foundation in South Africa, and I am very most willing and eager to support such efforts. Events like pleased to learn about this part of our work in your country. these are not only well-suited to convey a realistic picture of When I asked my colleagues in Johannesburg what kind of the political, as well as the socio-economical status quo of speech participants would expect from me, the answer was, the country, but also look into the future, in which different a short one. I do always respect good advice, so please allow scenarios are still possible. me to make just a few remarks. Unfortunately, recent events such as the Marikana tragedy In Germany, we say everything you do more often than have sparked some pessimism amongst the international once already becomes tradition. If measured, our cooperation community about the future of South Africa. I do not share this with the FW de Klerk Foundation has a very long tradition. We pessimism and negative outlook. An institution that bears the hold this annual conference together for the fourth time, and name of Konrad Adenauer can not and will not per se adopt it is not only a long tradition, but also a good and a successful a pessimistic viewpoint. I do think South Africa can be very one, as my fellow colleagues have confirmed. Since the first proud of its achievements, and South Africa is a country full of conference we focused mainly on questions around nation- opportunities and capacities. However, when it comes to the building and the Constitution. These questions quite obviously political development of the country one should not forget that continue to have relevance because otherwise surely not a democracy is never a given. It must be nurtured, cultivated so many participants would have come to this event on a and protected every day. This is true for all democracies, but in Saturday. I would never try to organise a conference like this even greater extent for the younger ones. And this is the way I in Germany on a Saturday. understand our joint conference today, a meeting with the aim The expansion of South Africa’s young democracy to a well to cultivate the South African democracy. For this I wish you fortified democracy, to a militant democracy, remains one of lots of success. Thank you very much.

*Transcribed from recording of speech.

Uniting Behind the Constitution 3 Welcome and Introduction

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa It is dangerous to merely focus“ on civil liberties and not take action to meaningfully deal with inequalities and legacies of our past. Sipho Pityan”a

Uniting Behind the Constitution 4 The Constitution after 19 Years The Constitution after 19 Years

Address* by Sipho Pityana, Chairman of Casac to the FW de Klerk Foundation Conference on Uniting Behind the Constitution Protea President Hotel, Cape Town 2nd February 2013

Well, I am sure I speak on behalf of all of you in wishing Build a united and democratic South Africa able to Bafana Bafana well. I nearly came in a Bafana Bafana T-shirt. take its rightful place as a sovereign state in a family To make up for it I thought I would dress in the colours of of nations.” Bafana Bafana. So this is a proxy for the T-shirt. Premier Zille and former President FW de Klerk, This clearly sets out the Constitution as a fundamental Mr Steward and the leadership of the Foundation, Dr Dix transformative framework intended to guide us from a of the Konrad Adenauer Foundation, distinguished guests, repressive and divided past to a peaceful, inclusive, diverse ladies and gentlemen, it is a singular honour to have been and prosperous future based on mutual respect and a invited to be part of this important conversation of the journey commitment to the basic tenets of democracy. of transformation and reconstruction of our country as a Without exonerating government failings which have been progressive constitutional state. well documented, our time perhaps may be better served Not insignificantly, this is the 23rd anniversary of the reflecting on the failure of broader society’s leadership in certain crossing of the Rubicon when President FW de Klerk, on regards in advancing the Constitution. We must deliberate on 2 February 1990, invited his people to turn their backs on the denialism about the continued legacy of apartheid and an undemocratic system of governance that is intrinsically pronouncements that often come across as a defence of the corrupt and bereft of any ethical and moral foundation past and its privileges. This great contract willingly and freely or influence, an assault on human dignity and the Rule of entered between our people, the Constitution, may have been Law, a crime against humanity. He did this at great risk to betrayed by some among us who proclaim commitment to it. his person, career and the future of his people. He, together This, in some instances, is done when government measures with President Nelson Mandela, can legitimately and without and policies, and government efforts to redress the legacy of fear of contradiction claim to have been midwives of our our fractured past, are decried with no meaningful alternatives constitutional democracy which was born of the heroic proposed. In the circumstances, often a sense of lack of struggles of our people. commitment to our common vision sets in. You rightly invite us to not only reflect on the Constitution It is important to recognise that respect for, and promotion 19 years hence, but also call on us to unite behind the great of, civil and political rights - civil liberties - are an important vision it proffers. Its preamble sums up its unambiguous but insufficient component of freedom. It creates the mission and reads thus. And I quote: conditions for economic and social freedom to be realised. “We, the people of South Africa, But much more needs to be done. It is dangerous to merely Recognise the injustices of our past; focus on civil liberties and not take action to meaningfully Honour those who suffered for justice and freedom deal with inequalities and legacies of our past. Failure to in our land; do so will undermine social cohesion and fray the fabric Respect those who have worked to build and develop of society. Inequalities, which according to most indices, our country; and continue to take the form of the apartheid hierarchy, suggest Believe that South Africa belongs to all who live in it, that while apartheid may be dead, its doggedly persistent united in our diversity. legacy is a blight on an alternative society we are trying to We therefore, through our freely elected representatives build. Inequalities which continue to marginalise black South adopt this Constitution as the supreme law of the Africans are the most serious threat to our constitutional Republic so as to - democracy and undermine its credibility. Heal the divisions of the past and establish a society According to the latest Census released last year, African based on democratic values, social justice and household income averaged R60 000 per annum, for Coloureds fundamental human rights; R112 000, Indians and Whites R250 000 and R365 000 Lay the foundations for a democratic and open society respectively. This clearly shows the stubborn legacy of our past. in which government is based on the will of the Africans continue to dominate the ranks of the poor. A report of people, and every citizen is equally protected by law; the World Bank released in 2010 noted South Africa as one of Improve the quality of life of all citizens and free the the most unequal countries in the world, with a Gini coefficient potential of each person; and of 0.7 in 2008, a marginal increase from 0.66 in 1993. The

Uniting Behind the Constitution 5 The Constitution after 19 Years

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa report further highlighted that South Africa’s Gini index - which We must have measures the extent to which the distribution of income among individuals or household within an economy deviates from a the“ courage of our perfectly equal distribution - was 63.14 in 2009. The Bank further reported that the top 10% of the population convictions to support accounted for as much as 58% of South Africa’s income. The bottom 10% accounted for just a mere 0.5% of income, and and commit to these the bottom 50% less than 8%. Some indeed expressed the view that the new dispensation has benefited the old order transformative values of more than those who were oppressed. Some argue, based on these and other statistics, that black South Africans are our Constitution. financially worse off now than they were under apartheid - the previously disadvantaged continued to be disadvantaged ” even under a new democracy. South Africa’s white minority is the restitution programme. It is in this context that we welcome even better off now than it was under apartheid, so they argue. the inclusion of CASAC’s recommendation in government’s These sentiments undermine social cohesion, raise levels National Development Plan (NDP) on land reform. In our of resentment with the unfulfilled dreams of liberation, and submission to the National Planning Commission (NPC) result in calls for an alternative order. There is a cynical entitled, Subject to Citizen, let the People Govern, we pose agenda to create an impression that these inequalities persist the question: How does the Constitution’s recognition in largely because government’s redress initiatives are about section 25 of respecting private property bear on the prospects the enrichment of the black elite through such policies as for successful pursuit of a social transformative commitment? black economic empowerment. Empirical evidence suggests And I think that is the debate that is so central amongst us otherwise. Further evidence shows, however, that even these South Africans today. We postulate thus, and I will quote policies have not been successful in redressing the past, directly from what we said in our submission: largely as a result of circumventive behaviour. Such behaviour “The Constitutional Court has not yet been called on includes fronting, corruption, tokenism, misrepresentation to for answers to the heart questions about application government, and many other similar measures. of section 25(2) and (3) requiring just and equitable Approximately 21% of black people own shares in the top compensation, reflecting an equitable balance 100 listed JSE companies, with only 8.9% of this 21% being between public interests and the interests of those direct ownership. It is not blaming the ghost of the past to affected, having regard to all relevant circumstances. remind each other that the laws of the land, for many years, For any expropriation of property it might be the restricted black people from full participation in the economy. case that the Constitution land reform commitment Consequently the wealth and capital accumulation was can not be carried out without resort to substantial due to assuming the apartheid hierarchy of discrimination. expropriations. Supposing that this is the case, then It stands to reason that removing discriminatory laws alone a constitutional requirement of substantial just and would not be enough, but that redress measures aimed equitable compensation might stand practically in the at levelling the playing field are necessary, hence black way. How far this might be so will depend on how the economic empowerment. According to the Employment just and equitable standard is construed and applied Equity Commission report of last year, only 18.5% of black by the Constitutional Court in light of whatever people are in top management roles in the economy, 19 years relevant legislation Parliament might present to court.” into our democracy. Is it possible to convince anyone that it is not a result of We believe that the Constitution points the way to the racial discrimination in the workplace that is allegedly quite transformation-friendly body of property law but leaves the rampant? This is despite the fact that section 9(3) of the matter in the end for South Africans to resolve politically Constitution proscribes discrimination, including that based and democratically. The centenary of the 1913 Land Act is on race. Section 9(5) of the Constitution states, and I quote: an appropriate opportunity to test our resolve to heal this “Discrimination on one or more grounds listed in wound that has been at the heart of our divisive past. It is subsection (3) is unfair unless it is established that the for this reason that we support the view that a universal land discrimination is fair.” restitution policy of ‘willing buyer’ - ‘willing seller’ may be a conservative and limited interpretation of our Constitution, If we understand the significance of this in our constitutional inhibiting its transformative intentions. Where there may be democracy and our efforts to redress inequality and to build instances that justify such an approach, it may very well be common citizenship in all its manifestation, we ought to that it can not be so in all cases. embrace the principle of fair discrimination that informs these There can be no doubt that the three most important policy policies. However, if we choose deniaIism and the erasure of instruments to lift our people out of poverty and inequality apartheid’s legacy in the present, we will feel uncomfortable in our society are: education and training, employment, with this principle and undermine the very objective of and social security in the medium term. The latter is where transformation in our society. government’s greater successes have been registered. In We must have the courage of our convictions to support 1996/97, over two million of the population benefited from and commit to these transformative values of our Constitution. social grants, compared to 2012 where over 16 million Among the issues that need to be addressed is the impact of benefited - over a quarter of the population, that is. According the education system on the transformation process. We must to findings from the Stats SA 2001 Community Survey, accept as an unpleasant but true reality that our education Africans are the largest recipients of social grants at 90%, system continues to fail society. This failure also accounts for followed by Coloureds at 6%, Indians and Whites at 1% and the persistent inequalities in our society. 3% respectively. There is do doubt that while it is an important It is indeed a betrayal of the Constitution to have returned mitigating factor against poverty, these levels of dependence only about 7% of land since 1996 to black people as a result of on social grants are unsustainable in the long run.

Uniting Behind the Constitution 6 The Constitution after 19 Years

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr The NDP’s focus on employment is therefore critical. protection of the social security net, is essential for Employment is the most effective and sustainable intervention a cohesive society and a future of prosperity of the for poverty alleviation in pursuit of an inclusive and redistributive nation. As traditional orthodoxies are being questioned economy. Despite two job summits, which sought to focus on in the global economy, so too must the Constitution employment, there has been a negative growth in employment take into consideration the socio-economic context in since 1994, even though new jobs were created in the period which it exists, and be responsive to the scale, urgency of economic growth. This was outstripped by jobs lost - a 26% and interconnectiveness of challenges of globalisation unemployment. Clearly these levels of unemployment are and sustainable development.” unsustainable and too high. The income gap between the top echelons and junior employees in the corporate environment, It is in this context that we believe we need to bravely and the phenomenon of poverty in employment, is undermining and unapologetically tackle sensitive issues such as equal stable labour relations, as shown in the mining and agricultural opportunities and affirmative action in employment, black industries in the recent months. economic empowerment and land reform. It is our seeming There can be no doubt that an infrastructure-led economic inability to agree on how to tackle these vexed issues that has stimulation package is pivotal, especially with the backing led to calls for an economic CODESA. What we clearly need of a clear articulated industrial policy that Industrial Policy is a rational and candid national dialogue to confront these Action Plan (IPAP) represents. The greatest fear is that corrupt issues, without pretending that only apartheid accounts for practices around these projects might unduly raise their costs, where we are but also recognise that the shortcomings of a alienate strategic players and undermine their impact. After post-apartheid state are also responsible. The premise for such the Arms Deal, I would suggest, this is likely to attract the most a conversation is that we must acknowledge that, without interests from the vultures of corruption. addressing these issues, we cannot as a nation make progress. The other concern is a weak and deteriorating capacity The status quo is unsustainable. of the state to execute these programmes. This highlights The values that contribute to building a society with the urgency for an effective, independent anti-corruption effective systems of open governance, ethical behaviour, capacity, and the enhancement of the competency of the accountability, competence, hard work, a spirit of public state. An incompetent state and a corrupt state can never be service with consequences for poor performance or corrupt able to contain run-away escalations that are often associated conduct, non-violent resolution of dispute, and non- with big projects, as we have seen in numerous instances in partisanship also need to be respected. A rights-baced culture our country. must also focus on responsibilities and obligations that go with Effective, efficient and transparent procurement processes, these rights, encouraging citizens to be active in improving free from greasing of palms, would ensure that the R1.3 their own lives, and communities in holding government to trillion budgeted for infrastructure spending has a meaningful account through participative processes and sustained social empowerment effect, by providing infrastructure that is critical dialogue. The principle of the Rule of Law is a critical building for sustained economic growth, employment and reduced block in seeking to pursue the concept of constitutionalism. poverty. These outcomes are not inevitable but conditional Public and private power must be exercised within the on good governance. Without good governance we may be law in order to retain legitimacy and to enhance a culture throwing good money after bad. of responsibility and accountability, and guard against the In CASAC’s founding principles we argue thus, and I quote: arbitrary use and abuse of authority. Judicial independence “The realisation of socio-economic rights is intertwined is in turn an indispensable element, if not a prerequisite, for with civil liberties and political freedoms. Social and the Rule of Law and the integrity of the court system if it is to economic marginalisation deprives people of their dispense justice that promotes substantive quality as well as fundamental right to live with security and dignity procedural fairness. and is a betrayal of the Constitution. Endemic poverty And I would like to conclude and leave you with food for and inequality render South Africa a fragile society thought. Frederick Douglass in 1886 had these words to say: where the poor and vulnerable, especially women “Where justice is denied, where poverty is enforced, and children, are condemned to the fringes and easily where ignorance prevails, and where any one class is exploited. There is an unacceptable and unsustainable made to feel that society is an organised conspiracy gap between the vision of the Constitution and the to oppress, rob and degrade them, neither person nor lived reality of too many citizens. This gap must be property is safe.” closed, providing people with access to education, adequate housing and health care, and, with the Thank you.

*Transcribed from recording of speech.

Sipho M. Pityana is the Chairperson of the Council for the Advancement of the South African Constitution (CASAC) and a businessman. A former Director General in the departments of Labour and later Foreign Affairs, he played an important role in laying the foundations to our democratic constitutional order. This included the establishment of important institutions of social dialogue including NEDLAC, Millenium Labour Council (MLC) and the CCMA. Mr Pityana holds a BA. (Hons.) in Government and Sociology from University of Essex, an M.Sc. in Politics and Sociology from the University of London and a D Tech (Honorary) VUT. In 1992 he published Beyond the Factory Floor, the first survey of COSATU shop stewards. He has published and presented papers on a wide range of social science subjects and served on the Board of the HSRC and editorial boards of various local and international publications. Mr Pityana joined the private sector in 2002 as an Executive Director: Nedcor Investment Bank. He serves as Non-Executive Chairman of Munich Re-Insurance, Director of Anglo Gold Ashanti, Afrox, Scaw Metals and Aberdare Cables. He is also the founder and Chairman of Izingwe Capital - a black owned investment company group. He has a long history of political activism and became a member of the ANC and South African Congress on Trade Unions (SACTU) in 1979. He went into exile in Britain, holding various positions in the ANC (including Regional Secretary of ANC UK & Ireland) and travelling the world to mobilise the Anti-Apartheid Movement. He returned to South Africa 1991. He spends most of his time today campaigning to ensure that the great promise of our democratic Constitution is a lived reality that transforms the lives of all South Africans.

Uniting Behind the Constitution 7 The Constitution after 19 Years

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa It is the very “ government that is entrusted to uphold human rights that will inevitably violate these rights and has to be held accountable. Prof Frans Viljoe”n

Uniting Behind the Constitution 8 Non-Racialism and Human Dignity Uniting Behind the Constitution in Support of Non-Racialism and Human Dignity

Address* by Prof Frans Viljoen, Director of the Centre for Human Rights Faculty of Law, University of Pretoria to the FW de Klerk Foundation Conference on Uniting Behind the Constitution Protea President Hotel, Cape Town 2nd February 2013

As you heard, we are challenged to reflect on how a history linked to this country, the Bill of Rights grants the best to achieve the constitutional vision of human rights. protective shield to everyone in South Africa, including non- Conscious of the impossibility of covering the whole array citizens - non South Africans by birth perhaps and nationality of contemporary human rights concerns, I focus in my short - in respect of many of the rights in the Bill of Rights. At the presentation on three aspects that I think are pertinent to the heart thus of our quest for human rights lies the contested realisation of human dignity. They are: a culture of justification, yet interdependent coexistence of the governing ‘we’ and the social transformation and international scrutiny of our human governed ‘we’, and that is what we will explore. rights record. First, with relation to the creation and maintenance of a However, before I tackle these more substantive issues I culture of justification. The constitutional entrenchment of thought perhaps that we should reflect for a few moments human rights brought parliamentary sovereignty to an end, about who the ‘we’ are that should aspire to achieve these as we well know, and ushered us into an era of constitutional constitutional rights visions. As we heard earlier this morning, supremacy. The late law professor, Etienne Mureinik, famously the first words of our Constitution, the first word, is the word described the Constitution as a bridge leading us away from “we”. The Preamble of the Constitution starts with the phrase, a culture of authority to a culture of justification, because all “We, the people of South Africa” and it elaborates on how legislation, all government action, can now be tested against we have established this society based on human rights, or the yardstick of constitutional rights. Denial of these rights this constitutional vision based on those values. However, the cannot be done at will or be based on coercion or force. same Constitution, the same Preamble, also acknowledges While rights may be limited, a limitation is constitutionally that the actual Constitution-making was entrusted to a much acceptable only if the government convincingly articulates a more exclusive group earmarked in the Constitution as our justifiable rationale. Our government is constitutionally obliged freely elected representatives. Now, this duality permeates the to convince us, and ultimately perhaps the Constitutional whole of the Constitution. Court, what the reasons for these limitations may be. Both our As much as an expansive ‘everyone’ is entitled to the rights constitutional democracy and the culture of justification have in the Constitution, it is a more restricted group, the governing been boosted by the numerous findings of the Constitutional elite, if you like, that is primarily responsible to uphold the rights Court in which the government’s justifications have been found in the Constitution, making them the primary duty bearers. wanting, and by the consistency of government compliance Thus is introduced the fundamental human rights paradox, if with these orders. Although government almost invariably you like. It is the very government that is entrusted to uphold dragged its feet in conforming, it has not (directly at least) human rights that will inevitably violate these rights and has to contested its obligation to give effect to the Constitutional be held accountable. At the same time the Constitution binds Court’s directives. not only the state, but also non-state entities, human beings, In the relatively contentious case of Glenister, for example, and collectives of human beings such as clubs, companies and the ultimate result was the adoption of the South African Police churches. This feature distinguishes our Constitution from many Services Amendment Act. And, according to the short title of others and earned the epitaph, ‘post liberal’. this Act, the aim of the Act is to align the Hawks unit with the The horizontal application of the Constitution, and the Glenister judgement. Even if some, including Hugh Glenister Bill of Rights specifically, is most unequivocal when it comes himself, may argue that the amendments to ensure operational to the right to equality, but it is also potentially foreseeing in and structural independence may not have gone far enough, respect of all other rights, depending on who the rights-holder the drafters seemed at least to have endeavoured to implement is that needs to comply with an obligation, and depending on the crux of the court’s judgement. And pertinent to the point the specific right that is being invoked. We should also perhaps I am trying to make, Hugh Glenister is now returning to the recall that as much as the Constitution is created, if you like, by Constitutional Court to contest the constitutional adequacy of us, presumably the citizens, the people of South Africa, with the measures adopted to give effect to the court’s judgement.

Uniting Behind the Constitution 9 Non-Racialism and Human Dignity

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa Because a culture of justification will remain superficial if it challenge the government’s rationalisations relentlessly in is only coaxed through occasional judicial prodding, we should public fora, or, more modestly, in private and informal spaces. also assess the extent to which the culture has permeated our Part of permeating society with such a culture would be to society. And regrettably there are clear erosive tendencies. insist on educational systems framing the curricula in whatever Government’s actual inaction is all too often deflected by issues school, whatever educational plan, not only as including the that avoid debate, for example, through name-calling - “traitor”, Constitution and the constitutional values, but these - the “racist” - invoking majoritarian positions, “our people posited importance of open discussion, the cultivation of differences of against counter-revolutionary forces”, and placing reliance on views and of deliberation. history, “apartheid did it”. Similarly, Polokwane and Mangaung I move to the transformation towards social justice. The resolutions are invoked, not as starting points for debate, but as most celebrated aspect perhaps of our Bill of Rights is its clinching an argument. This reaction is a remnant of the ANC’s promise of social transformation. It envisages social change uneasy transition from liberation movement to political party through non-violent political processes grounded in law. As and government of the day. poverty and equality - as we heard at length this morning - are As liberation movement it inculcated the logic of the most salient features of our societal fabric today, it means democratic centralism and grassroots-driven mandates. that this process towards social justice has to speak to poverty However, in an open democracy centralism easily becomes mitigation and eradication. elitist, and grassroots involvement soon appears to be more This vision finds expression in the constitutional inclusion apparent than real, leaving many of those outside the inner of enforceable rights. There is a long list, as we know: housing, party circle with a lingering suspicion that secrecy, pro forma health care, food, water, social assistance, education. This list consultation and exclusion trump substantive argument. has to be read together with other rights in the Constitution, However, the process towards the adoption of the Protection for example, the right to equality, which is understood not as of State Information Bill, I think, illustrates the lingering a procedural, but ultimately as a substance based, outcomes importance and the remaining possibilities of a culture of based provision. And, together with the values underlying the justification. At the time when this Bill was introduced, little Constitution, again equality and also human dignity. rationale was provided for the approach adopted. Even if we Earlier this morning Sipho Pityana referred to indicators agree that such a new law was necessary to replace the 1982 that should convince us about the dire state of inequality and law, the question was why such a law should grant the powers social deprivation, economically in particular, in our society. to classify information to the heads of all organs of state, Each of us can choose the framework or the indicator that is without allowing for a public defence override. What was the most convincing. There are the National Planning Commission mischief - as a lawyer we would ask - that informs the specific (NPC) statistics, for example, that half of all South Africans still legal choices made? The mischief we saw, and see around live under the paltry poverty line of R524 per month. There are us - corruption and rumours of corruption, mismanagement the UNDP’s Human Rights Indexes, the Gini coefficient that of funds, etcetera - seem infinitely more real to us than the has been referred to, and there are the obvious voices being rather fanciful fear of espionage by some foreign destabilising heard, and actions of citizens who bear the brunt of non-exist potentate. It is a testament, however, to the continuous and failing service delivery. engagement and deliberate deliberation by the Right2Know What I think is more useful to focus on is what should Campaign, and many others, that the proposed Bill changed and can be done to realise the constitutional promise of over time. social justice in the face of these realities. And I suggest four While it may still have its defects, the category of those avenues. The first avenue has been suggested already, and entitled to classify information as secret has, in the most recent that is perhaps the convenient target of the Constitution, the drafts, been limited to security services and a limited public Bill of Rights itself. Those who suggest that the core of the interest exception has been inserted. The proponents of the Bill problem is textual contend that the Constitution is a tainted had no option but to engage more elaborately on the rationale compromise, it is tilted in favour of a pre-94 status quo, of particular legal provisions, to embark on public consultation, and is designed to inculcate a new liberal market economy and to compromise. Invoking the spectre of constitutional approach. There may be some merit in this contention. The challenge may have meant the legalisation of politics, but it textual basis of socio-economic rights could certainly have also brought the prospect and the need for justification into been stronger. plain sight. In pursuit of our constitutional vision we, the All the rights in the Constitution - socio-economic rights - rights holders, should actively participate in fostering a culture are qualified by the phrase “access to” and they all come - that of justification, of open deliberation. It remains important to is, except the right to basic education - and they all come with the proviso of progressive realisation. However, a more in- depth analysis and holistic contextual view should see these The most celebrated flaws as counter-balanced by the centrality of equality and “ the values informing, for example, the limitation analysis. A aspect perhaps of our radical reconfiguring of our constitutional vision would require the redrafting of the constitutional text. Political exigencies Bill of Rights is its promise dictate that recreating the conditions of a Constitution drafting moment are very unlikely. Critics of the original compact are of social transformation. therefore not likely to suggest that the Constitution should be renegotiated, rather that re-crafting would come through It envisages social constitutional amendments - if the dominant party would be able to assemble the required two-thirds majority to change change through non- the Bill of Rights. Even if one-party dominance would from time to time violent political processes allow this to happen, in my view this approach is to be avoided. It would in the first instance be a slap in the face of grounded in law.” history. It would undermine the legitimacy of our founding

Uniting Behind the Constitution 10 Non-Racialism and Human Dignity

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr constitutional moment. It would be divisive, destabilising and inimical to non-dominant interests. The Constitution should The second avenue to get to social justice is the obvious: legislative and executive means. Let us be reminded, as we “ be the blueprint, or the were earlier, that social justice should in the first place come about politically. The Constitution should be the blueprint, starting point, in that it or the starting point, in that it provides the values that need to be transposed into legislative and policy principles. And provides the values that much has been done, and many socio-economic rights are guaranteed in law, policy and practice. need to be transposed But the problem, I think, is two-fold. On the one hand, law policy and even court judgements are often not effectively into legislative and policy implemented. On the other hand, legislation and policy do not sufficiently deal with that one core group in our society, the principles. group of able-bodied adults who are not formally employed, people between the ages of 19 and 59; social assistance is ” in place for those younger and older than this particular age and not exceeding its institutional powers. It would be unwise group. In my view, the possibilities have not seriously been for our courts to adopt a jurisprudence of exasperation by explored and the reality of this group has not been prioritised. pushing the boundaries through taking decisions that would Whether one takes the promise of the Constitution seriously easily be targeted as extravagant and overly intrusive into the where it says that everyone shall have access to social domain of other branches of government. By disregarding the assistance, whether the means of job seeking grants, new dictates of the possible, the courts may well invite confrontation subsidies grants are explored, there needs to be much deeper and ultimately threaten their own institutional legitimacy. and serious reflection in the light also, and still informed by The fourth avenue is a more engaged role for civil society. the culture of justification. We heard earlier about the resurgent spirit within civil society, Job creation mentioned earlier, obviously a crucial peg to and they have contributed to the social justice realisation, secure growth in a developmental state, is unlikely to have especially through the courts. Criticism about the civil society any effect on this group, those aged 19 to 59 and unemployed. is that it does not really extend to cover rural constituencies While the prospect of employment is real in many other and that there is a perception that constitutional litigation developmental states - perhaps the Asian Tigers - this is a faint is only for an elite club - organisations and lawyers. It must and diminishing possibility to similarly situated South Africans, also be stated that it should be a cause of regret that despite leaving it to the market economy in a developmental state. the work that has eventually been done around the right to Making more promises about public work programmes, in education, that these kinds of cases were ready and ripe for the absence of the infrastructural commitment thereto, is not adjudication, and for being taken to the Constitutional Court likely to alleviate the situation of this particular group here, and other courts, much earlier than it in fact happened. now, or in the foreseeable future. Against this background it should be clear that there is very An ethical society, and in my argument a constitutional little justification for the government’s recently reappearing state based on social justice, cannot close its eyes to the intention to have the courts reviewed for their contribution to immediacy of the plight of those most at risk: those most likely the transformation of our society. Such a review has dubious to go to sleep hungry and those most likely to participate in constitutional roots. the slide towards social unrest and violent action, informed It is not clear what the end of the proposed review would by the lack of basic means of survival and of a life of indignity be. More pertinent is the review outcome. If the review and dire need. outcome should reflect unfavourably on the judiciary, what A third possibility to get to social justice is through the action would be taken? It is difficult not to read some intent courts, through litigation. On this basis it is pointed out that to intimidate into the proposed process. In any event, it the Constitutional Court in particular should contribute, but seems a negative result of such a study is most unlikely. The has failed the poor in its interpretation of the Bill of Rights. The South African judiciary and its role in social transformation main criticism is that when interpreting these rights the court is one of the most studied topics in South Africa and abroad. has not engaged in a quest to find the content and meaning of Although the outcomes of these studies are not uncritical, there these rights, but instead finds tailor-made solutions that would is general appreciation of what the courts have accomplished. suit its view of its own institutional role, informed by judicial These studies, and the Constitution itself, underline that the modesty and deference to the other branches of government. main responsibility to achieve social justice lies with the Although there may be some merits in these criticisms, legislature and the executive. What is needed, above all, is there is consensus, I think, that the court more or less steered the effective implementation of existing policies and laws, the a cautious course between advancing socio-economic justice elaboration of further legislation and policies and the diligent

Uniting Behind the Constitution 11 Non-Racialism and Human Dignity

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa and full compliance with court judgements. These studies, and Briefly then to the international scrutiny. Through the embrace in our Constitution of international human rights law, the“ Constitution itself, our Constitution announces an end to pre-1994 international isolation. Our Bill of Rights speaks the language of international underline that the main human rights and affirms the role of international law as an interpretive lodestar. This means that our constitutional vision responsibility to achieve is premised upon the acceptance of international scrutiny of our domestic human rights affairs. social justice lies with Briefly, how has South Africa fared in respect of the three major inter-governmental organisations to which it is part of in the legislature and the terms of human rights? As far as SADC is concerned, when the SADC summit in 2012 took the political decision that the legal executive. basis of the SADC Tribunal should be amended to exclude the possibility of individuals taking cases to that tribunal, the ” possibility of the SADC Tribunal being an effective forum for reports to these inspection or monitoring bodies of the UN. redress for victims of human rights violations in SADC was South Africa has an appalling record, unfortunately. It is up eliminated. to date in respect of only one treaty dealing with the rights of While it is understood that South Africa did take some women, and in respect of perhaps the most important treaty, actions, it is clear that our government could have and should the covenant on civil and political rights, South Africa is yet to have played a much stronger leadership role to prevent submit a report since 2000. the tribunal from falling victim to outdated notions of state The fourth layer is the actual implementation of the sovereignty. As the campaign to ensure a South African as AU findings or the concluding observations of UN treaty bodies. chairperson testifies, our foreign policy operators can be very South Africa, has in recent years, been found in violation of successful in advocating for a position, in building coalitions the covenant, and civil and political rights, by the UN Human and exerting pressure, when there is political will. The Rights Committee in the McCollum case. Unfortunately absence of an equivalent political will in respect of the only South Africa - the government - did not only fail to respond sub-region human rights body in Southern Africa contributed to the allegations of torture, sexual assault and denial of significantly to this huge step backwards. medical care to prisoners of the St Albans Correctional Centre As far as the African Union (AU) is concerned, much can be domestically, but it also failed to respond to the international said. Let me just focus on the one judicial institution of the AU, body’s decision against South Africa and to reply within a set the African Court on human and people’s rights. South Africa period of six months. There was a much belated reply. has accepted the jurisdiction of this court, but it is not among Also, the Committee on the Rights of Women, in the five states that have accepted individual complaints to congratulating South Africa in 2011 for female representation be directed to this court, despite our claim to be the most in Parliament, and in public life generally, singled out the progressive domestic human rights protector on the continent. judiciary as an aspect of public life that still needs attention, As far as the UN is concerned, I will briefly take us through and recommended that South Africa should take measures to four layers of state commitment that allow international accelerate women’s full and equal participation in that sphere. scrutiny. First of all, the state has to ratify UN treaties and Unfortunately, this international guidance did not resonate in show its commitment. There are nine core UN human rights the recent discussions on the all-male panel to be interviewed treaties, and South Africa has ratified only six. The outstanding for the vacancy in the Constitutional Court. What seems to be ones are the International Covenant on Economic, Social and lacking is a greater role that civil society may craft for itself, Cultural Rights, and the conventions dealing with the rights of or that it is allowed to take, in respect of these processes of migrant workers and enforced disappearances. scrutinising our international obligations and certainly, greater Now, it is true that cabinet has announced its go-ahead to political will. Amongst others, perhaps to create a central ratify or see to the covenant and conventions. This process or coordinating body within government to ensure that the still has to be concluded and one already hears arguments obligations are being taken seriously. that this should be done with reservation. So the plea is, this To conclude, Constitution talk is permeated by metaphors, process should be accelerated and that no reservations should bridges, dances and trains. I choose the image, in conclusion, be entered. of the Bill of Rights, the Constitution, as a seed, carrying in it The second layer of commitment is that the state should not the potential for growth from a vision to reality. The growth in only ratify treaties but also accept the individual complaints terms of our human rights vision has been faltering and the mechanisms that make the treaties really effective. Of the six end product that we see is fragile. We may disagree about treaties South Africa has in fact ratified, we have accepted what we see. Some may be disappointed that it is not yet a these individual mechanisms only in respect of three. The Baobab or want it to be a Baobab. Others may think it is a outstanding ones are the conventions dealing with racial weakling and others may see in it some form of a shrub. But, discrimination, torture and the rights of the child. whatever it is, it needs our further cultivation and our loving The third layer is that the state should periodically submit care. That is for sure.

*Transcribed from recording of speech.

Prof Frans Viljoen (MA, LLB, LLD (Pretoria); LLM (Cambridge)) is Director of the Centre for Human Rights, Faculty of Law, University of Pretoria. He is also the academic co-ordinator of the LLM (Human Rights and Democratisation in Africa), presented by the Centre, in collaboration with 12 partner law faculties across Africa. He has been involved in advocacy and training in and on the African regional human rights system, and published widely on international human rights law, including International Human Rights Law in Africa (Oxford University Press, second edition, 2012). He is editor-in-chief of the African Human Rights Law Journal and co-editor of the English and French versions of the African Human Rights Law Reports.

Uniting Behind the Constitution 12 Non-Racialism and Human Dignity

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Participating Panelists

Dr Lucky Mathubela, Board Member John Kane-Berman, Chief Executive Officer of the Adv Johan Kruger, Director of the of the FW de Klerk Foundation South African Institute for Race Relations Centre for Constitutional Rights

Adv Paul Hoffman, Director of the South Dr Theuns Eloff, Adv Johan Kruger SC, Acting Judge and African Institute for Accountability Vice-Chancellor of North-West University board member of the FW de Klerk Foundation

Michael Bagraim, Labour Attorney and Prince Mangosuthu Buthelezi, Dr Paul Graham, Executive Director of the President of the Cape Chamber of Commerce Leader of the Inkatha Freedom Party Institute for Democracy in South Africa

It can not be that Nelson Mandela was “the last of the leaders ready to sacrifice for the people. Mosiuoa Leko”ta

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa However, in “ this already difficult business environment, the imposition of unrealistic racial quotas simply gives investors yet more reason to avoid or reduce exposure to South Africa. Dr Anthea Jeffer”y

Uniting Behind the Constitution 14 The Constitution and the Equality Clause The Constitution and the Equality Clause

Address by Dr Anthea Jeffery, Head of Special Research and Gawith Fellow South African Institute of Race Relations to the FW de Klerk Foundation Conference on Uniting Behind the Constitution Protea President Hotel, Cape Town 2nd February 2013

What the Constitution Says for failing to achieve this quota. Yet fines of this magnitude Most parts of the equality clause (section 9) of the Constitution could force firms into bankruptcy and cost the country still are unambiguous, clearly stating that “everyone is equal more jobs, as the Government is well aware. In addition, a before the law” and that neither the state, nor any private quota of this kind is clearly very difficult to meet when only person, may “unfairly discriminate against anyone” on racial 3% of Africans have the tertiary qualifications often needed (or other) grounds. In addition, discrimination on racial in management posts and only 25% fall within the 35-64 age grounds is automatically unfair unless the contrary is shown. cohort from which managers are usually drawn. The devil lies in the detail of section 9(2), which says: “To promote the achievement of equality, legislative and other measures designed to…advance persons disadvantaged by Costs and Consequences of BEE past discrimination may be taken.” As for BEE, the value of declared ownership deals from During the constitutional negotiations, all parties to the 1998 to 2008 has been estimated at between R550 billion talks - including the African National Congress (ANC) - and R600 billion. This is an enormous sum to allocate not accepted that section 9(2) requires a ‘soft’ form of affirmative to productive investment, but rather to the racial reshuffling action, with a focus on training and ‘inputs’ rather than of share ownership for the benefit, in general, of a small and quotas or ‘outputs’. Says former state president FW de Klerk, politically well-connected elite. “There was never any talk about imposing demographic Preferential procurement has also contributed to waste and representivity”. Nor was it intended that “people without corruption. ANC secretary general Gwede Mantashe admitted the appropriate qualifications would be appointed to posts to the waste last year when he said that BEE companies must merely on racial grounds”. Instead, it was widely agreed that “stop using the State as their cash cow by providing poor “the most important and effective form of affirmative action quality goods at inflated prices”. Mr Mantashe also said: was through the provision of excellent education…and the “This thing of having a bottle of water that you can get for R7 creation of employment”. procured by the Government for R27 because you want to Contrary to this understanding, section 9(2) has become the create a middle-class person who must have a business is not fountainhead for employment equity (EE) and black economic on… It must stop.” empowerment (BEE) rules which aim at demographic Preferential procurement also gives impetus to corruption, representivity in many spheres and often require the fulfilment as one BEE businessman implicitly acknowledged last year of unrealistic racial quotas. when he said: “You pay to be introduced to the political principals, you pay to get a tender, you pay to be paid [for completed work], and you must also…make donations to… Costs and Consequences of EE the ANC…the youth league, the women’s league, and the The Employment Equity Act (EE Act) of 1998 has been SACP [South African Communist Party].” Understandably, few energetically implemented in the public sector, where it other businessmen have admitted to making such payments, has brought about a crippling loss of skills and institutional but the comment seems to provide insight into a wider memory. This is evident in the collapse of municipal services pattern of conduct. It is also consistent with the high level in many small towns; the inability of most state agencies to of corruption (roughly R30 billion a year) uncovered by the keep sound financial records and achieve clean audits; and Special Investigating Unit and the auditor general. the persistent use of costly external consultants to do the work At the same time, BEE has done little to help small that (well-paid) public servants should themselves be able to black businesses, says Lawrence Mavundla, president of carry out. the National African Federated Chamber of Commerce Most private firms have yet to reach the Government’s goal and Industry (NAFCOC). According to Mr Mavundla, of 75% African representation at all levels of management. BEE has “marginalized” small businesses by promoting Hence, under the EE Amendment Bill of 2012, they could “tenderpreneurs who are tender thieves because they get their soon face massive fines, of up to 10% of annual turnover, tenders through [political] connections”.

Uniting Behind the Constitution 15 The Constitution and the Equality Clause

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa In addition, Moeletsi Mbeki, brother to former president Racial Inequality has been Thabo Mbeki, has long criticised BEE for “striking a fatal Declining for Decades blow against black entrepreneurship by creating a small class EE and BEE rules are also said to be essential to the of unproductive but wealthy black crony capitalists made reduction of racial inequality. However, such inequality has up of ANC politicians”. BEE, he says, thus robs South Africa been declining steadily since 1970, via a process that began of the key to economic and industrial development: “an under National Party rule and long before the advent of entrepreneurial bourgeoisie”. affirmative action. In 2010 the finance minister, Pravin Gordhan, accurately Over the past 40 years, many factors have contributed to summed up the situation when he said: “BEE policies have the narrowing of racial inequality, among them rising skills, not worked and have not made South Africa a fairer or more unionisation, and better paid jobs for Africans. Redistribution prosperous country.” Yet the Department of Trade and Industry via the budget has also played a vital part and has, of course, (DTI) is now intent on tightening up BEE requirements and accelerated since 1994. As a result, 16 million people are making them much harder to fulfill. Its proposals put still more now on social grants, while the Government also provides emphasis on costly ownership deals, and threaten directors free RDP houses, free schooling in 60% of schools, free with prison terms of up to 10 years for ‘fronting’, as very health care to many, and free basic water and electricity to broadly defined. If these changes are adopted in their present the indigent. In addition, public sector employment has been form, it will be the first time since 1994 that jail sentences will steadily expanding, while average wages in the public sector be available for failing to comply with racial laws. (where Africans predominate) outstrip those in the private Costly EE and BEE rules are justified by reference to section sector by around 40%. 9(2) of the equality clause, on the assumption that this is Cash grants and other benefits, along with rising real what the Constitution requires. However, there is nothing in wages for those with jobs, have helped reduce the number wording of section 9(2) to require a focus on outputs rather of people living in absolute poverty (on less than $2 a day) than inputs. In addition, these racial laws are premised on two from 8.4 million in 1999 to 1.4 million in 2011. The State’s false assumptions: that they will benefit the poor, and that they interventions have also helped to raise the living standards are essential to narrow racial inequality. of the poorest, as measured by the South African Advertising Research Foundation. People on the lowest living standard measure (LSM1) have only a radio and minimal access to EE and BEE Hurt rather than services, but those in LSM6 also have stoves, water, electricity, Help the Poor TVs, DVDs, flush toilets, fridges, and cell phones. Between Like other affirmative action measures all around the world, 2001 and 2011, the proportion of adults in LSM1 dropped EE and BEE measures are largely irrelevant to the poor. from 11% to 1% in 2011, while the proportion in LSM6 nearly The demand they create is for the best qualified and most doubled from 13% to 22%. Millions of Africans have thus experienced among the African population, many of whom seen their living standards move much closer to those long have indeed drawn significant advantage from racial set- enjoyed by whites. asides. However, for the 19 million South Africans still The Government has thus done well in improving housing, living in relative poverty (on less than R5 000 a month for services, and overall living standards. However, despite a household of eight or more), EE and BEE will never bring its evident successes, many of the poor are far from being benefits in the form of ownership deals, management posts, content - as rising social and labour unrest makes clear. preferential contracts, or new small businesses to run. Recent research by the Unilever Institute at the University As Mr De Klerk recently summed it up, affirmative action of Cape Town helps show the reason why. According to The might help the top 15% but it brings no benefits to the Majority Report 2012 recently released by the organisation, remaining 85%. Worse still, it harms that 85% by deterring “the number one aspiration of adults living in relative poverty investment, growth, and jobs: by hobbling the economy and is to get a job”. preventing it from reaching its potential. The report says that the poor want employment rather than In the mining industry, for instance, vague BEE rules and more state aid. This makes sense, for people living in free RDP their often arbitrary interpretation by bureaucrats have cast homes and enjoying free schooling and other services often doubt on the certainty of mining titles and restricted growth lack something yet more fundamental: a monthly income and investment. Despite a major commodities boom from from employment. Many of their key needs have indeed been 2001 to 2008, the value added to GDP by South Africa’s met through state delivery - but their most vital requirement mining industry thus remained flat. Yet in the same period, often remains unfulfilled. the mining sector in Chile, a key mining jurisdiction in Unemployment figures show the extent of the problem, the developing world, experienced a 12% growth in value for joblessness has risen significantly under the ANC’s watch. added to GDP. Moreover, in the 2000s, investment in the In 1994 some 1.6 million Africans were unemployed on mining industry in Australia advanced by 24%, whereas the official definition, which excludes discouraged workers average investment growth in South Africa was a relatively no longer seeking jobs. But in 2012 some 3.8 million pedestrian 7%. Africans were thus unemployed, an increase of 135%. On BEE is not, of course, the only constraint on investment in the expanded definition of unemployment, which includes the mining industry, which also confronts soaring electricity discouraged workers, the picture is also bleak. In 1994, and other input costs, poor skills and productivity, inadequate roughly 3.2 million Africans were jobless on this definition, infrastructure, and persistent strikes and labour unrest. but by 2012 the number had risen to 6.8 million - an increase However, in this already difficult business environment, the of 112%. imposition of unrealistic racial quotas simply gives investors Despite its delivery successes, the ANC has thus failed to yet more reason to avoid or reduce exposure to South Africa. achieve what the poor most want - the generation of more jobs. No one knows how much investment has been lost this way If anything, the ANC’s policy interventions, from unrealistic EE - but the diminution in mining jobs is clear, the number of and BEE laws to coercive labour regulation and a host of other people employed in mining having fallen from 488 000 in dirigiste measures - have made it much more difficult for the 2001 to 357 000 in 2012, a decrease of 27%. unskilled to find employment.

Uniting Behind the Constitution 16 The Constitution and the Equality Clause

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Racial inequality persists balance of their children. Hence, children who grow up Though racial inequality has significantly diminished over the without fathers often do less well at school, while girls are past four decades, it nevertheless persists. To cite but some more likely to have lower self-esteem and boys are more likely examples: to display ‘hypermasculine’ behaviour, including aggression. • in 2010 Africans owned 17% of shares on the JSE, whereas In June 2012 these findings were reinforced by an whites owned 45%; international study covering more than 10 000 children in • in 2011 annual income per capita among Africans was various countries. This research found that fathers often have R21 400, whereas among whites it was R165 000; even more influence on children than mothers do - and that a • in the same year, 3% of Africans had completed post-school father’s contribution (or the lack of it) has particular impact on education, compared to 21% of whites; and whether a child later drinks to excess, takes drugs, or engages • in 2012 the unemployment rate among Africans (on in other bad behaviour. the expanded definition) was 42%, whereas among whites it Research conducted in South Africa points in the same was 7.5%. direction. In 2009, for instance, a study by the Human Sciences Research Council (HSRC) found that 73% of men South Africa’s racial disparities thus remain stark. Can they who admitted to having raped a woman had grown up without realistically be overcome via racial quotas in employment at a father or with one who was hardly home. management level, by BEE ownership deals, or by preferential A recent World Bank study also stresses that inequality procurement for black businesses? Such interventions clearly of opportunity is greatly affected by family circumstances. do provide a leg-up to a relative elite within the wider African Critical factors include whether both parents live in the group. For the great majority of Africans, however, these household, the number of children below the age of 16, racial set-asides are simply irrelevant. This is not surprising, the education level of the household head, the urban/rural for the march to equality in fact begins much earlier - with location of the household, and whether children have access strong and supportive families, sound schooling, and a social to early childhood development. environment that encourages hard work, integrity, and risk- As Mr De Klerk has written, if these criteria are applied taking entrepreneurship. in South Africa, “white children have enormous advantages”. Almost 80% of white children come from two-parent families and have only a limited number of siblings, while they mostly Dinesh D’Souza and The End live in urban areas and have access to good education and of Racism early childhood development. By contrast, only about 30% of In the United States (US), where affirmative action has been in black children come from double-parent families, while many place for almost 50 years but has done little to assist the truly live in rural areas, have parents who are functionally illiterate, disadvantaged among African-Americans, there has long been and lack access to decent schools. a debate as to whether racial set-asides are an appropriate remedy for deep-rooted social problems. An important contribution to this debate has come from Sound Schooling Dinesh D’Souza in his book The End of Racism, published in The importance of good schooling in this knowledge-based 1995. Here, Professor D’Souza identifies the barriers to black era is self-evident. The many failures of public basic education advancement in the US as including: are also too well known to bear repetition here. In September • the collapse of family life, leading to single parenthood and 2011 Zwelinzima Vavi, general secretary of the Congress absent fathers; of South African Trade Unions (Cosatu), summed up the • high rates of crime; situation when he said: “South Africa’s education system is • widespread alcohol and drug abuse; a catastrophe and the children of working class parents are • a ‘street’ culture that celebrates violence and challenges being condemned to a deep black hole with minimal chances authority; of escape.” • bad public schools and often uncaring teachers; A key factor contributing to the malaise is poor teacher • a reliance on welfare and a more general dependence on performance, as a host of studies have now shown. In October government to provide; 2011, for instance, the HSRC and the Department of Basic • debilitating perceptions of victimhood and entitlement; and Education (DBE) found that “teachers commonly do not • a mistaken reliance on affirmative action measures, which complete the curriculum, teach too slowly, do not develop generally benefit a relative elite while bypassing the poor. concepts, set insufficient written work, and provide pupils with few opportunities to read. Many teachers come late to In his book, Professor D’Souza urges policy makers in the US school, leave early, spend only 46% of their time teaching each to acknowledge the salience of these social factors, and start week, and hardly teach at all on Fridays”. Yet the South African “boldly confronting” the problems of the black underclass at Democratic Teachers’ Union (SADTU) continues to resist their roots. attempts to reintroduce inspectors in schools or make teacher Professor D’Souza’s list is highly relevant to South Africa as pay dependent on performance - while the ruling party is too well, as the analysis below makes clear. But whereas in the supine to confront its trade union ally on these issues. US the debate about these issues is relatively vigorous and is Many of the problems with schooling can be traced back beginning to result in some policy shifts, in South Africa there to poor policy decisions, including the introduction of a is far too little recognition of equivalent barriers to upward flawed and badly implemented system of outcomes-based mobility - and far too much reliance on racial set-asides instead. education (OBE). However, poor performance by the State is also sometimes compounded by negative social conduct, as Jonathan Jansen, vice chancellor and rector of the University Absent Fathers of the Free State and president of the South African Institute A growing body of international research shows that fathers of Race Relations, has pointed out. In 2009 in the Western play a vital role not only in providing material support but also Cape, for instance, one man started stripping wood from a in contributing to the intellectual functioning and emotional prefabricated school building to light a winter fire and was

Uniting Behind the Constitution 17 The Constitution and the Equality Clause

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa immediately joined by many others. Writes Professor Jansen: flawed emphasis on affirmative action and racial set-asides is “Within hours the feeding frenzy leveled the school with distracting our attention from these core issues. the ground. There was nothing left. Their own children, who The ANC nevertheless remains intent on enforcing attended the school, now had no building in which to learn demographic representivity in many spheres: not because this during the harsh Cape winter.” In addition, as the Minister notion is required (or even mandated) by the Constitution, of Basic Education, Angie Motshekga, has noted, schools are but rather because it helps the ruling party advance its often stripped of computers, furniture, and other essentials by national democratic revolution (NDR). Though the doctrine thieves who break in during school holidays. Misconduct by of demographic representivity has been endorsed by many pupils also plays a part, it seems, for recent research shows countries for non-NDR reasons, in South Africa it clearly that 57% of pupils have experienced bullying at school, assists the ANC’s revolution by: while 68% are worried about being physically assaulted or • providing a cover for deploying loyal ANC cadres to all threatened with weapons. levers of state power; • supplying a rationale for eroding the property rights of all South Africans; Alcohol and Drug Abuse • hobbling the economy and hindering job creation; Between half and two-thirds of South Africans are teetotalers, • undermining the existing autonomous middle class; putting the country’s overall consumption of alcohol per • increasing dependency upon the State; and capita in the middle range on a global comparison. But if • giving the Government an excuse to intervene yet further alcohol consumption is averaged out across the population, as social instability worsens in response to its previous the ‘average’ South African drinks a “bakkie-load of booze” or interventions. 20 litres of pure alcohol a year, said the Central Drug Authority of the Department of Social Development in November 2011. Against this background, a recent warning by Yuri Maltsev, a Among those who drink, roughly 37% imbibe from early Russian economist and former adviser to President Mikhail Friday afternoon until Monday morning, staying drunk all Gorbachev (who defected to the West in 1989 and visited weekend. Some 10% of drivers on a Monday morning are South Africa last month), has particular salience. Said Dr likely to be drunk, while about half of South Africa’s 14 000 Maltsev: “Governments that want to take freedom from people deaths a year in road accidents are caused either by drunken need a crisis to justify their taking away of liberty. The crisis drivers or by the reckless conduct of drunk pedestrians. can be real, or it can be imaginary, or it can be produced. Alcohol abuse also exacerbates the murder rate, contributing Often there are elements of all three.” to 75% of the killings committed with knives and the like, To avoid the further crises likely to lie ahead, we need to scrap 50% of those carried out with blunt instruments, and 40% of both EE and BEE, go back to the true meaning of section 9(2), those involving firearms. Drunkenness also plays a major part and start confronting the problems of the African underclass in rape and the spread of HIV/AIDS. at their roots. This requires effective action to improve poor South Africa also has one of the highest rates of foetal schooling and overcome other pressing social problems. This alcohol syndrome (FAS) in the world. Preliminary studies in will not be easy, for it requires, among other things: Johannesburg and the Northern Cape indicate that a million • facing SADTU down over poor teacher performance; South Africans suffer from FAS, while between four million and • overcoming the negative effects of OBE, which has severely five million suffer from a lesser form of the condition, known undermined the teaching of such basics as reading, writing, as foetal alcohol spectrum disorder. Either way, the condition and arithmetic; and is irreversible, resulting in permanent mental retardation and • finding effective ways to strengthen families, restore social reduced capacity for impulse control. values, and limit alcohol and drug abuse. Many high school pupils now also drink. During a recent study by the Bureau of Market Research (BMR) of Gauteng Even this challenging list is not enough, for we also need to pupils in grades 8 to 12, some 67% said they had been deal effectively with violent crime, gangsterism, and a range drunk, 45% admitted to ‘binge drinking’, and 80% said they of other crucial but thorny issues - among them, communal “regularly consumed” alcohol. Rehabilitation centres for land tenure, the widespread abuse of women, and coercive alcoholics comment that they “now see 13-year-olds with labour legislation. drinking problems, which never used to happen”. The ruling party also needs to jettison the failed ideology of The BMR survey also showed that 27% of Gauteng high- the NDR and shift its ‘big idea’ from redistribution to growth. school pupils use illegal drugs, of which cannabis (dagga) is the For 18 years, the ANC has put its emphasis on redistribution most popular (95%). Addiction to crystal methamphetamine rather than on promoting economic growth. But a different (‘tik’) has reached pandemic proportions on the Cape Flats way of dividing up the existing economic pie - without in Cape Town and is now spreading to the Northern Cape. expanding it as well - will never be enough to meet the needs According to the Central Drug Authority, the use of dagga and of a growing population. By contrast, as Gill Marcus, governor cocaine in South Africa is twice the global norm. of the South African Reserve Bank, said late last year: “With growth of 7% a year, you double your income every ten years.” Where to from here? A rising tide of this magnitude would lift all boats. Coupled This brief overview suggests that D’Souza’s list of the with effective steps to liberate the poor, it would succeed far obstacles to the advancement of poor African-Americans better than any amount of social engineering in enhancing the is equally salient within South Africa. It also suggests that a prosperity of all.

Dr Anthea Jeffery holds law degrees from Wits, Cambridge, and London universities. Since 1990, she has worked for the South African Institute of Race Relations, where she is Head of Special Research. She is the author of nine books, including Business and Affirmative Action; The Truth about the Truth Commission; People’s War: New Light on the Struggle for South Africa; and Chasing the Rainbow: South Africa’s Move from Mandela to Zuma.

Uniting Behind the Constitution 18 The Constitution and the Equality Clause

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Dr Danny Titus, Hester Kruger, Marumo Nkomo, Colleen Ryan, Faadhil Cupido, Judge Johan Kruger Richard Bradstreet Roland Langley

Dr Holger Dix, Lanice Steward, Dave Steward, Premier Helen Zille, FW de Klerk Japie Gouws FW de Klerk

I choose the image, in conclusion, of the Bill of Rights,“ the Constitution, as a seed, carrying in it the potential for growth from a vision to reality. Prof Frans Viljo”en

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa ...absolutely pivotal to the“ rule of law is how you control the judges. Their power has to be controlled through the most delicate constitutional mechanism. Adv Jeremy Gauntlett”

Uniting Behind the Constitution 20 The Rule of Law Uniting Behind the Constitution in Support of the Rule of Law

Address* by Adv Jeremy Gauntlett, SC to the FW de Klerk Foundation Conference on Uniting Behind the Constitution Protea President Hotel, Cape Town 2nd February 2013

Ladies and gentlemen, walking into this room today He got up because he could not stand it any longer. The was for me quite a remarkable experience - to see so many colleague was going on and on and on about a point, which people who I have known for different reasons for decades. So Kentridge wanted to point out to the judge had long ceased many people I admire. When Mamphela Ramphele recently to be relevant and was now moot in the litigation. And the offered to nominate me, unspoilt by failure, for a judicial judge was an equable, soothing type and said, “Mr Kentridge, position, she said immediately, being Mamphela, “You should I do think we must allow Mr X some latitude”. And Kentridge know it will do you no good to be associated with me”. That looked long and hard at the judge and said, “My Lord, it is not is what I have to say to the Foundation, in turn, in inviting me his latitude I am objecting to, it is his longitude.” to speak to you today. So I need to confine myself before the same problem arises. It will be hard to work out who is, and I do not mean this May I say to you that for me the most important thing about the in any unkind way, the oldest friend I know in this room. But rule of law is trying to understand what it is, because the term I would be very remiss if I did not tell you who I think it is. is used as a rhetorical flourish. It so easily degenerates into 41 years ago, as a student at Stellenbosch, I conceived (as the a semantic version of motherhood and apple pie. It is a flag, chairman of a current affairs society, Die Stellenbosch Aktuele which governments and other people like to wrap themselves Aangeleentheidskring) the idea of inviting a black speaker in, and it is used indiscriminately. Now, for me, the critical to speak. The vice-chancellor was a gynaecologist who had thing is to try and understand what does this nebulous thing married well and belonged to organisations that saw a natural mean? May I suggest that the answer lies in contrasting it with match between gynaecology and running a university. He what it is not. wanted to know from me who the person was, because the It is firstly not a reflection of a state of affairs where there name did not ring a bell. So I explained to him that he was a is of course no rule. I would ask you to bring to your minds prince - he was, as I put it, “die hoofman van vyf miljoen Suid- for a moment the terrible situation, which goes on in parts of Afrikaners”. He said, you mean Zulus? So I said, well, yes, Syria, in parts of Somalia and the Sudan. There is simply no since you put it that way. And the request succeeded. I got into rule. There are bands that go to and fro, they momentarily terrible trouble afterwards because the person who spoke did have control, but rule, we would know without reaching for not accord in any way with the expectation of a true hoofman a dictionary, is something more consolidated than simply the who would be a little more grateful for his appointment. He muzzle of an AK-47. It may entail the muzzle of an AK-47 and riveted an audience. It was a turning point in the life of that be sustained by it but it is not to be equated with momentary university that a person as compelling and articulate and shifting power. So when we are talking about a Rule of Law clever as Prince Buthelezi could meet and speak to people society we are not talking about Somalia or Mali or Beirut in whose life experience had, for the most part, been confined the time of its terrible division and conflict. to black people who put petrol in your car or worked on their Nor are we talking, secondly, of a situation where there father’s farm. is the Kalashnikov, where there is rule but no law. Jackboot, I will never forget how he brought the audience - which was certainly, where authority is exerted, but actually it is not uneasy at first - to a roar when he was asked by a very earnest even done through law. The government of Zimbabwe has apostle of separate development as to how he conceived a taken to announcing legal measures by interview through The society could function other than in terms of the then-policy. Herald newspaper, a government-owned organ in Harare, the He asked an answerable question - do you have Jewish and listing of farms and the like. It does not even trouble often Greek lavatories? Its unsustainability, and moral untenability, with gazetting. That is an example of the second situation I was highlighted in that one telling remark. So, forgive me for am talking about, where there is effective rule, not actually acknowledging at some length an association that goes back by law, by binding legal precepts, which people can find. I such a long time. do stress that is a very important thing about the aspect about I have to from now on be much briefer. I had the great the rule of law; you have got to be able to find the law. Some honour of attending three out of six 90th birthday parties of us have been in countries where law reports have not been for Sir Sydney Kentridge a month ago. At one of them it was published for years. You can fell an unwary opponent with recollected that he is marked as the best silk in England since some yellow copy of a judgement. He may trump you with a Thomas Erskine - after 60 years in practice, described wittily slightly less yellow copy of another judgement, neither of you by Lord Phillips as the best advocate “of his generations”. The knowing of the existence of these judgements. anecdote is told of how he once was prompted into doing the The third situation, and here society starts to get more unthinkable, which is intervening in a colleague’s argument. sophisticated, is where there is rule, and law, but it is rule

Uniting Behind the Constitution 21 The Rule of Law

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa under law. Who would ever think that so much of human firstly, that all power under the rule of law is constrained misery could turn on a preposition? When we talk about this by law; and secondly that no power may be conferred in third category of societies where you have rule under law, terms that have no limits. A quick example: many of us will the great totalitarian countries come to mind. You think about remember the emergency years when huge discretions were Soviet Russia, about Germany for the most part, and of bad conferred inter alia even on Spoorwegpolisie (the old Railway times in this country when there was a scrupulous legalism. Police). They - even the most junior constable - could arrest There was not simply the passing shift armed with an AK-47, and cause to be detained for extended periods a person who, the no-rule situation. Nor was there not simply the second in their opinion, was a risk under the old ‘Public Safety Act’, category of rule but no actual law. There was a remorseless as it was euphemistically termed. Similar to the powers to and exorable system of laws, which would determine where determine who was a communist. We all know those powers. you would live, with whom you could have sex and other And the critical thing was that some judges struggled in those matters of the most private kind. days to find a limit to the power, because there had to be a Lord Steyn (Johan van Zyl Steyn, who was an advocate limit, in each case. It happened incrementally, through some in Cape Town) recalls how Ahron Barak, the Chief Justice of very able and brave judges, wrongly written off in a time when Israel, explains the difference between rule under law, and the everything pre-1994 is seen not to be just antediluvian but rule of law. In Germany, up to 1943, Jews who were serving irredeemable. It is as if there was no Roman law, no common prison sentences would serve out their time for housebreaking, law. It is as if all virtue began with the Constitution. No, virtue burglary, any ordinary crime. When they were discharged, the did not. As Milan Kundera, the Czech writer put it, “The legalities having been scrupulously observed, the Gestapo struggle of [people] against power is the struggle of memory would wait at the gates. They were taken to the death camps against forgetting.” It is an eternal difficulty. only then. And this not by any law, because of course there The concept first made famous by Montesquieu in his was no enabling statute for the Holocaust. There was the The Spirit of the Laws is the notion of division of powers Wannsee Conference, held in great secrecy. That was because as between executive, legislature and judiciary. It is what some of the worst things have to be contrived and conceived makes a theocracy unsustainable in those countries where of in secrecy. Just as one in this country would have been you will find a simultaneous pronouncement on what is ashamed if there had been a legislative set of orders which interchangeably morality, executive choices, and of course ordained Vlakplaas. the adjudication of rights. The division of powers, this is the That is a graphic illustration of a society which obeys a most important point for me, does not immunise any of the scrupulous legalism. Right through the midst of a war the three branches of government from the operation, the rule of prisons would keep not only those who were housebreakers, law. It creates a sense, not of stasis, but of polarised mobility but Jews whose destiny was death. And there would have been between the constantly competing sources of authority. a far simpler solution which could have saved the government The three are constantly rotating in the air and held in a some rations for some months - simply look up who is a Jew certain balance by attraction and repulsion. Not of conflict, and take them all out of prisons. No, the legalities had to because in the end if there is outright conflict we all know be observed. what happens in societies - sooner or later somebody just has Now, the fourth and final category is, in contrast, the ruleof more Kalashnikovs than somebody else. law - that vitally different preposition. You would all know that But this sense of the legislature, the executive and the it is almost the first thing said in the Constitution. It is there in judiciary rotating around each other and holding each other section 1(b). But the question arises: what does it entail? Not in check obviously gives rise to problems of boundary-setting. the categories I have talked about. It contemplates then clearly Because if I had to think in a phrase of the function of judges, that there is rule, not anarchy or complete licentiousness. It it is for me to patrol the boundaries of power. contemplates rule by law, true, but it does not contemplate Lord Nolan, in a very interesting case called M v Home rule under law. What is the crucial difference? It is for me Office (where a Zairian asylum-seeker, notwithstanding a most graphically illustrated by what the American philosopher court order, was bundled out of Britain because the Home Dworkin has said. Power is like the hole in the doughnut - Secretary had simply robustly said, “well, he has got to go”) only an American could think of an example like that - it only held, “The proper constitutional relationship of the executive has meaning by the fact that it is circumscribed. It has got with the courts is that the courts will respect all acts of the to have definition; it is not a black hole. That is the critical executive within its lawful province, and that the executive aspect, and that is the limitation of power. will respect all decisions of the court as to what its lawful And that then gives rise to two immediate propositions: province is.” That sets up a very difficult tension, which we see illustrated time and again. It is this. There is ultimately an inherent tie- The integrity of judges breaker in that system, and the tie-breaker is the judges “ declaring what everybody else’s province is, including their is secured not only by the own. And there is no other way of resolving that tension unless you resort to the elevation of democracy over constitutional integrity of the system of democracy by saying, well, let us vote on it. You can do that. We all know that if one turned off the lights in South African appointing them, and the homes, and certainly in the National Assembly and held a vote, we would still have the death penalty. So you have to effective application of decide as a society whether you are going to subject yourself to what is that social contract, with its explicit tie-breaker of codes of conduct. There is the judiciary, and stay with it. And it ultimately involves the executive not reaching for the Kalashnikov. also their own discipline I will never forget the experience that comes often to those of us who practice law, losing cases. This particular one was for as public servants.” President Mandela. Going to him to discuss the implications

Uniting Behind the Constitution 22 The Rule of Law

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr (it was in the Constitutional Court) and his reaction. As one The judges must would expect from the person we respect, there was not even a flicker of irritation. It was a severe political setback but he patrol“ the boundaries of accepted. He said, no this is where we leave it, they have spoken. That was the epitome of somebody leading a society power. They must not under the rule of law. But there is a problem with the tie-breaker. It is this: it puts shrink obviously from enormous ultimate trust in the judges because ultimately they are doing that which all of us find difficult. You become a blowing a whistle when judge in your own cause. It is as simple as that. But if you are determining the extent of your powers, it is a very difficult they see that there is a exercise to perform. You may remember Murder in the Cathedral, when Thomas transgression. They are Becket in TS Eliot’s play is dealing with the Tempters. Suddenly, on the road to Canterbury, another spectral figure appears - the watchdogs, not lapdogs. Fourth Tempter. And the Fourth Tempter is actually spiritual power, spiritual delight in his own exultation through his ” apprehended martyrdom. The difficulty is that with the judges in contrast, selection of the Supreme Court is a palpably you have a situation that enormous power is put in their hands political scramble: in a Bush presidency you will get judges to use or abuse - and of course, not to use power in certain of a certain stripe and the moment Obama comes in there circumstances may be to abuse it. The same way as not to take will be judges of another stripe, with little variety in either a decision in life may be to take a decision. instance. I think it was memorably said by Franklin Roosevelt There was one case involving New Clicks appealing certain of the appointment of Felix Frankfurter that, “He is a son of a regulations by the then Minister of Health, Dr Tshabalala- bitch, but at least he is my son of a bitch”. Which says it all. Msimang, controlling exit prices on pharmaceutical products. The difficulty is that the control of judges ultimately lies in The full bench in the Cape split two to one. We asked for themselves, via codes of conduct, which never used to exist leave to appeal. The test for leave to appeal is very simple. It before. It does not stop certain judges - after the consumption is whether there is a reasonable prospect that another court of too much tea on a Friday evening, which is of course always would come to a different conclusion. The judge delayed when one drinks tea - driving a judicial Jaguar through a wall hearing the matter. He thought he would obstruct us. So we of a surprised householder in Hurlingham. There will always then had to go straight to the Supreme Court of Appeal, to say be problems. But then you act against those judges; it must very simply that not to say “yes” for an unreasonable period be a judicial body that does so, and it must act swiftly. We of time is tacitly to say “no”. So actually, judges, we are here do not see that. We see the can kicked down the road until with leave to appeal having been refused. Of course it was a retirement. That is a very bad thing. Everyone must know there risk. We took it and we won there, and we won again, very is a limit to their power, and not see an effective impunity. narrowly (six to five) in the Constitutional Court. But the Although you may have ushers who treat you with medieval judicial conduct we had to overcome to get on appeal is an deference, and even junior practitioners who do that kind illustration of the tie-breaker not acting as it should. of thing, you must know that the power has its limits not to There are other ones. There has been a recent adjudication be abused. in the matter of closing of schools in the Western Cape. On a lighter note, the extent to which people can believe A particular judge made it clear at an early stage of the in the mystique of judges is wonderfully brought out by Jan argument, in a fit of irritation, that he would never close a Morris (writing the Pax Britannica, a history of the British school. Perhaps counsel in that matter should then and there Empire). She wrote of the discovery of a hill tribe in India, have said, “Well Judge, if you will never do that which I am sacrificing a goat, to propitiate a distant but omnipotent deity: asking you to do and you are telling me that in advance, that “We know nothing of him but that he is a good god, and that is bias, and I must ask you to go”. But that also puts a strain his name is the Judicial Committee of the Privy Council.” on practitioners who have children to feed and lives to live. The integrity of judges is secured not only by the integrity That is one of the difficulties. That is why that Fourth Tempter of the system of appointing them, and the effective application on the road is a very dangerous one. It is only as you get a of codes of conduct. There is also their own discipline as little older and grizzled and you feel you have less to lose that public servants. There are worrying signs of failure in this you can take on peccant judges, judges who are effectively regard. These examples are taken, one from Zimbabwe and abusing their power. two recent ones from Namibia. I argued a case on 25 June You may find it strange that I focus on the vulnerability 2009 in Zimbabwe. An activist called Justina Mokoko had of the tie-breaking mechanism under constitutional been abducted, tortured and beaten by agents of the army. It democracies. Normally when people talk about the rule was admitted in an affidavit quite brazenly, by Mr Johannes of law it is a quick one-two of saying, well, the legislature Tomana, the Attorney-General of Zimbabwe, himself. We and executive must be curbed, so obviously the third arm were successful in the Supreme Court in reversing an absurd of State must be trusted. As Lord Denning put it: “let it be order of the High Court which had been made dismissing the judges”. But then absolutely pivotal to the rule of law is her application. how you control the judges. Their power has to be controlled But you do appreciate that every judge in the Supreme through the most delicate constitutional mechanism. First of Court of Zimbabwe, bar one who has just retired - and his all, the appointment of judges has to be a rigorous process name should be mentioned because he is a credit to all untainted by considerations, which I am afraid do creep in judges, Wilson Sandura - has accepted at least one confiscated because of the extent of the power wielded. You would know farm. And because of the wear-and-tear on judicial Mercedes that in Germany, there is quite a gentlemanly ritual, that last Benzes on farm roads they then had the impertinence to assert time it was a Social Democrat candidate, now it is a Christian the need for 4x4 vehicles. They go out to their farms on a Democrat candidate. There is a sort of a rotation. In America, Thursday, so you struggle to have a case heard on a Friday.

Uniting Behind the Constitution 23 The Rule of Law

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa They will return, if you are fortunate, on Monday night. on judges in civil cases to give their judgements, or 90 days Now, in this particular case the judges had to actually in civil cases and 60 days in any appeal. In some states in overturn the High Court order because of the one judge America they are simply more robust: you cannot go on leave prepared to confront what was a clear abuse of power. He if you have not delivered your judgement, which concentrates posed just three or four adept questions to the government the mind wonderfully, as Dr Johnson might like to say. counsel. When she gave unresisting answers, he swiftly put To conclude: for me the critical thing about the rule of law a follow-up question, “So that is the end of your case, is it is distinguishing it from those three other states of society not?” Which she embraced. The Chief Justice leant forward we have considered by constant vigilance for that simple and said, “When you said it is the end of your case you just preposition. Not a society without rule, nor one with rule but meant the end of your case on that point, did you not?” And no law, nor rule by law, but rule under law. The division of she said rather abjectly, no, she meant the end of the whole powers is a cornerstone of achieving it. But, as has been said case. So the Chief Justice was furious because he had thrown in earlier times, actually it is all about eternal vigilance. And her a lifebelt and hit her on the head with it. And that was the in that regard the judges too, have to be held to account. They end of the case. should be criticised, they should be criticised in the right way, The point of my story is, the order was made, the judgement they need to be accountable under a system of discipline - but which would reveal the operation of these effective death one which is entrenched in accountability to the Constitution, squads has not been handed down in the usual written form not subservience to the Executive. Judges have to walk a line, required by the rule of law, giving reasons for the decision. It which is to know that there are no no-go areas in the law will not be handed down in that form. More than two years anymore, whether it is the budgeting process or anything later, the court simply convened and an oral ruling - hardly else. If it is found, for instance, that it is tainted by fraudulent more than a reiteration of the order - was delivered. So there acts, some extreme situation like that, the duty of the court is no record of reasons, no legal precedent. would be to intervene. The judges must patrol the boundaries From a meeting I was at this morning of Freedom Under of power. They must not shrink obviously from blowing a Law, I know from our Zimbabwean colleague that the courts whistle when they see that there is a transgression. They are have taken across the board to delivering oral oral orders watchdogs, not lapdogs. that brief judgements. The law does not get made - this is the It is a very fine line because some bad judges sometimes, Supreme Court - it just does not get made anymore. That way through an excess of well-meaningness, will want to interfere it is quicker for the judges, you get to the farm faster, and you in what is a policy exercise. Yes, they must do so if the policy keep out of trouble with government. Now, that illustrates the is one that is susceptible to constitutional challenge. Take the big problem for the Fourth Tempter, and that is finding the famous case involving anti-retrovirals, the TAC, Treatment road to a quiet life with the Executive. Action Campaign litigation. There was a policy in place, Another couple of brief examples. In Namibia a judge in reflected also in legislation, which would not discharge the the Supreme Court - a full-time court, although it actually government’s constitutional duty. The Constitutional Court convenes and sits in court 15 days a year - had to confirm a said we know it is a question with budgetary implications but damages award - it was not rocket science - for a young girl you cannot do this. You simply cannot do that. So it is that very who had been raped by a teacher. He took four years and two difficult line, and perhaps in the discussion there will be some months to confirm a damages award. How he could have slept, interesting illustrations of that. one wonders, because somebody who needed the damages, May I then say finally that, really, there are two things, actually to get to psychiatrists and physical operations. which to my mind are the ultimate protectors of the rule of Another example is the Chief Justice of Namibia, who as a law. The one is what Van Wyk Louw wrote in Die Pluimsaad High Court judge reserved a judgement on 18 March 2003. Waai Ver, to the fury of Dr Verwoerd, who was very opposed Now as Chief Justice he descended, as it were, physically to Van Wyk Louw’s migration from loyalist to freethinker. Van and otherwise from the highest court to go to deliver that Wyk Louw wrote that there should not be any generation that judgement on 4 October 2012, nine years later. He held in goes past without protest. his judgement, without any sense of irony, that a 90-day limit Which brings me to the second observation. Walter imposed on ordinary rural litigants to institute a claim against Bagehot, the Victorian constitutionalist, taught us the ultimate the government was constitutional because as a litigant you protection for the rule of law: “The life of a Constitution is in must act without delay. Do not sit around. You must get the spirit and disposition of those who work it”. If that lapses, yourself a taxi and get yourself to a lawyer, sometime in far-off all goes. Windhoek, and put your claim in. It took him nine years to say Thank you. that 90 days is reasonable. He did not see the irony. The good news is that (and this is another example of what can be done as regards the Fourth Tempter) the legal profession in Namibia, with some prodding from one or two outsiders, has had enough and it has drawn up a Judicial Oversight Bill. It has ministerial support for it. It imposes a limit of 60 days

*Transcribed from recording of speech.

Jeremy was a Beit Scholar at the University of Stellenbosch where he obtained the BA degree cum laude in 1971 and the LLB degree cum laude in 1973. In 1976, as a Rhodes Scholar, Jeremy obtained the BCL degree from University of Oxford (New College). He was thereafter awarded a Harvard Graduate Fellowship. Jeremy commenced practice at the Cape Bar in 1977 and took silk in 1989. He has practised throughout Southern Africa: he is a member of Cape and Johannesburg Bars, and a barrister of England and Wales (Brick Court Chambers, London). In 2011 he was made a Bencher of the Middle Temple. Jeremy was President of the Cape Bar for two terms, and Chairman of the General Council of the Bar for three terms. He was also a council member of the International Bar Association (IBA) and founding vice-president of the Bar for the International Criminal Court (ICC). Jeremy served as a Commissioner of the SA Law Reform Commission for 10 years and as a Judge of the Court of Appeal of Lesotho for 14 years.

Uniting Behind the Constitution 24 The Rule of Law

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Salome Teuteberg, Dr Anthea Jeffrey, Prince Mangosuthu Buthelezi, Kabelo Gildenhuys John Kane-Berman Dr Holger Dix

Dr Theuns Eloff, Dave Steward, Elita de Klerk, Mosiuoa Lekota, Paul Graham FW de Klerk Dr Lucky Mathebula

If we lose this Constitution, “ we have nothing. Mosiuoa Leko”ta

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa The question of the choice of who will“ lead South Africa in the next term of government must be decided by the voters of our country. Us, the people. Mosiuoa Leko”ta

Uniting Behind the Constitution 26 Genuine Multi-Party Democracy Uniting Behind the Constitution in Support of Genuine Multi-Party Democracy

Address* by Mosiuoa Lekota, Leader of COPE to the FW de Klerk Foundation Conference on Uniting Behind the Constitution Protea President Hotel, Cape Town 2nd February 2013

Let me just say very briefly that when I was Minister down to 50%, equal, perhaps even, and the atmosphere would of Defence we were on one of those marketing trips, and have been different. We still have that challenge. Sir Charles, one of the British people, told me and others a The one thing that I must add is that of the voters during that story that I think will guide me today. He spoke about how a election, some seven million registered voters did not go and very important military meeting was arranged and speakers vote. In doing that they strengthened the ruling party. I think who spoke and spoke. But there were too many speakers and they did not go and vote and I dare say that the African section then by the time the last one came everybody had consumed would have been the majority in that seven million because so much that people had run out of patience. So as he was in any aggregate Africans are always the majority; it is a very speaking they were talking in very loud voices and nobody big group of people. And if Africans did not go and vote and was listening. But the last speaker was determined that he they are the majority in that group, it must be because they was going to deliver his speech because he had done all had already come to see that there was something seriously this preparation. He says he ground on, and ground on, and wrong with the ruling party. I add to that number the men and ground on, but nobody was listening. And then something women who were supposed to register and go and vote but developed on the main table, tension there exploded and who did not. So the seven million increases. By how much, I actually their voices subsided and they were stretching their do not know. We do not know but there can be no gainsay in necks to check what is happening at the main table. And then the fact that that happened. they heard one of the august people there saying, look I am Then there are those who went to vote, and voted for the tired of this thing. And then the guy with the gavel took it up myriad of small political parties which did not even gain one and brought it down right on the plate of this guy, and then he representative in the House. So if you take then that number started to go down and disappear behind the table, but even again, then the seven million increases also by that number. as he did so he said, “Hit me again”, I can still hear him. So I To get 12% and therefore get to 50% to reduce the majority will avoid a situation like that, I should really avoid a situation of the ruling party has to do with those numbers. And so we like that. have moved on since the last election, we are now like four The question that I have been asked to talk to you about years on. Since then the ruling party has committed so many brought to mind two things that Nelson Mandela said during blunders, so many serious violations, I do not want to detail his term as President. It was a joint sitting, I think, and he them now, most of us know about them, that that 62% is no reminded the Members of Parliament that there were good longer 62%. men and good women in all the political parties represented And I might say with some measure of certainty, having in the House, and then came round to say that there were evil worked for the movement for freedom in this country all of men and evil women in the ANC and all of the other parties in my life, I never went to Russia or some other country like that. the House. And then he said, the challenge facing our country I was always here in the townships and everywhere, every is to aggregate the good men and women on the one side so part of the country. There is no part of the country I have not that they may guide the fortunes of our country into the future. been in the communities, and I have been doing the rounds I think, in a very significant way, what we are trying to do again to see what is going on. The only time I left South Africa here is to grapple with that question: How at this time do we is when I went overseas on Robben Island, otherwise I was aggregate good South Africans on the one side so that they are always here. So I think it may be accepted that there are things able to direct the affairs of our nation so that we can achieve I can say with a measure of absolute certainty and a measure those outcomes that the CODESA process gave us? That really of accuracy. is the question. And I think that we must realise that we have So now the mood in our community - I am talking about to start like young people, we must have the energy to grapple African communities - is very angry, it is very upset with the with this problem. It is not extremely difficult. It does sound like ruling party. I was in the Eastern Cape a few weeks back and that, but it is not. In the last elections the ruling party got 62% I reminded our people there - I was in Adelaide, at Bedford, of the votes, opposition parties put together 38%. If it was then, Cookhouse, having started in Port Elizabeth the night before - I would say we need to get 12% so that we can bring the ANC so I reminded the meeting there that in 1993, Nelson Mandela,

Uniting Behind the Constitution 27 Genuine Multi-Party Democracy

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa speaking to the Cosatu Congress in June, July that year, said intended to ensure that nobody’s rights can be protected. So it to the workers, “If the ANC does to you what the apartheid is a vital thing that we make it very clear, and we need to move. government did to you, then you must do to the ANC what The advantage is that we do not need to go for armed struggle you did to the apartheid government.” No less an authority, as in the old days. We do not need that. Democratising the not me - Nelson Mandela - says this to the Cosatu Congress country, CODESA and the Constitution, that Constitution has in 1993. And I am going to remind our communities, I said given each one of us a right to vote. And if we go back to the to my colleagues in the opposition, and all of that, we must figures that I started with, the way to rally, the way to ensure go and remind the people of our country that this is what that the Constitution does not go, is that every South African Nelson Mandela said, if the ANC does this to you, then do of all walks of life, whatever their differences may be, must what you did. go and vote. And we must get everybody to understand that The people have no services anywhere. It is the same message. Please go and vote, but vote on the opposition side. issues we complained about. The people go and complain, Go and vote. “We want water” in Ficksburg. Their leader is shot and killed. When you sit at home with your vote you have no right The workers go and complain about wages, they got shot and to open your mouth afterwards and say that this thing is not killed, and so on. But things are worse. We used to complain right, that thing is what, because you have given power to about the quality of Bantu education, but under the old order those who are doing these wrong things. Go and only be you had to pass with 50% plus. That was expected. Now, in counted because we have the handle to deal with that thing, order to bolster the numbers of matric passes in Gauteng, we go there and we vote. We must go and make those Xs. We which is ruled by the ruling party, they now pass children must get our friends, we must get our neighbours, we must there with 33%. Which means they do not know 67% of what get the co-workers, fellow travellers in the aeroplanes, in the they are supposed to know. You would never dream of a pass trains. If we can get everybody just to understand this singular like that under apartheid. thing, that we have now an instrument, that we can solve the But, you see, they have to do that so that they show the DA problem without spilling blood. and Mrs Helen Zille and others to have lower passes. Now, I And we have already been talking to the people of Sasolburg, think we have to compete with the international community, do not destroy your infrastructure. You do not need to do that. with the Japanese, with the Germans, with the English, and all We did that under apartheid because we did not have an of them. They come to us with the geniuses - not just geniuses, instrument other than to attract attention by destruction. Now highly trained and qualified geniuses. And then we want to we do not need that. We need to build on what we inherited come with some 33% pass. Most of the children do not even to take the country forward. So this is perhaps easier said than know how to count. The country is going down. Now, those done. The opposition parties have been discussing intensively kind of things are what we shall be talking to the people about. working together. We must work together. So the situation in this country has deteriorated terribly. But I am glad I can say this afternoon that on this issue There are no working traffic lights. The communities in of working together, in the last meeting that we had in which we grew up, where we never drank water smelling of Johannesburg, we were at one, at least definitely the parties sewerage, are now in that situation. So that deterioration calls that were there, we were completely at one. We go, in for men and women, all of us, to rise to this challenge. So Parliament all of us are agreed on that issue. We are working we must rally behind the Constitution. The Mandela De Klerk towards what you might call a coalition of the voters. You see, leadership, in spite of their differences, got to CODESA I heard some other talk, but I want to say this, we need every and brought everybody together and said, let us discuss the South African to go and vote for the party of their choice. problems of our country. That legacy we have to claim. They must go and vote. Because you cannot change people The ruling party has made it quite clear that they see this overnight, no. You cannot do something, and then say now Constitution, negotiated at CODESA, as an instrument of the come here and vote for that and that. There are habits, there enemies of South Africa. We are now on record having said are commitments people already have, and so we need to get if that is your view, we want to make it quite clear we are everybody to go and vote, and vote as they choose. committed to that Constitution. It is a perfect Constitution. It But we must guide the people. When they vote - we have is the only framework within which our nation can develop looked through the parties and we are looking at that process, into a stable, united, non-racial, and all of the things we are we are about to finalise it - what are the issues that are talking about, it is the only one. If we lose this Constitution, common amongst all of us? On the issue of the Constitution we have nothing. And in order to ensure that this Constitution there is no debate, so please go and vote for the retention of is held in place we need to be dealing with the battle of the Constitution. You can go and vote for the IFP, the IFP is protecting and ensuring that we have a judiciary that is reliable for the Constitution. You can go and vote for COPE, it is for and independent. Because this drive to attack the judiciary is the Constitution. You can go and vote for the DA, it is for the Constitution. So when you do that, once you have done that, all of those votes cast have already been cast in defence of the People now need Constitution. “ We want to do something about service delivery to the services. People now people. These parties, all of these opposition parties, are at one on that issue. Please vote for whatever party you vote for. need quality life. Children Because if I am going to say you must leave that party and come and vote for COPE, it is not going to happen, in fact, need education. We need we are going to alienate each other. Go and vote. But we can select that issue and identify it as an issue on which we are a government that knows one. We want good service delivery for the people. We want quality education for all the children of this country, in all how to manage the the provinces. And these opposition parties are at one on that issue. Go and vote, you are voting for this. resources of the nation.” We want to do something about the electoral system,

Uniting Behind the Constitution 28 Genuine Multi-Party Democracy

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr because at the present time power is not in the hands of the people, power is in the hands of the political party. So you put the emblem of the party, and people vote for that party. And then a group goes to Mangaung and set their court by itself, and then they decide, okay, you are my cousin, you will take this position. You are my uncle, you will do that, and you will be the DG so that you can get all the tenders, go there, and so on. But where are the people to decide who must go and represent? They are not there. So we need to do something about the electoral system. We need some portion of the representatives in the National Assembly who must go and stand before the voters and say, vote for me, I will do this, I will do that, I commit to that. And when there is no water, or something, the people can say, come here and explain. If the sewerage is all over stinking, please come and explain this thing and do something about it. Until we get political power into the hands of the people we will always have these uprisings. Sasolburg, Balfour, Ficksburg, you count them. Because just now I feel like I felt under apartheid. I do not The Mandela De Klerk have anybody in Parliament who represents me. I can not “ go to Parliament and say, look at my vote, look, what is this. leadership, in spite of There is nobody I can punish. Even the President, the Head of State, said do not ask me. Do not ask me, ask the ANC, or their differences, got to ask this and the other. Then you wonder, when the President stands before the nation and says, do not ask me, who then CODESA and brought is supposed to know? So you ask me how much money did you spend on Nkandla, and all of that. Do not ask me, ask everybody together and the minister, I do not know. So who knows? Who is the Head of State? said, let us discuss the We need to do something about this. We need to be able to place before the nation some programme. We have to look at problems of our country. the economy, look at the National Development Plan (NDP). ” We must look at that. We must decide, what are the things in the NDP that we will commit to? If there are things that great thing about it, now the children of members of the we will not commit to, we must be able to say to the voters, opposition parties, certainly in the Congress of the People I unfortunately we do not think we can do that, certainly not know, it does not matter how many of us struggled for freedom, in the first year, first term, or something like that. But then the our children have got wrong surnames so they can not apply people know these are the things that can be done and that for jobs in government offices. Oh, yes! Even Frank Chikane, we can expect will be done for us when and if these people he has got a wrong surname now. He can also not apply for were voted by us. a job without government interfering. We are faced with men When you read the newspapers there is an assumption that and women who are determined to make life impossible for many people are making. They say we are now going to be anyone who wants governance with excellence. And this stuck with Zuma for the next seven years. I would like to add we must underline again my dear friends. The Stone Age did this point. Mangaung was a meeting of the ANC. Mangaung not end because there were no more stones. Stones are still elected who of the fraudsters and who not, will lead the ANC plenty around. But the Stone Age ended because people had for the next seven years. The question of the choice of who discovered a new instrument. They took steel out of stone and will lead South Africa in the next term of government must made pots with it. And that was a more efficient instrument be decided by the voters of our country. Us, the people. We with which to cook. They took steel out of there and they must go in numbers to the voting stations. We must go there made spears and therefore the Stone Age passed. and vote, and the outcome there will either put the forum The ANC was formed to democratise South Africa. That of opposition parties ahead of the ruling party or the African was its historic mission. It was not formed to govern. In order National Congress. to liberate the country and all of that, you recruit the skills I want to suggest this, I have a picture, this picture I see in you need for that purpose. But, sadly, the day after you got my mind that President Zuma will continue to lead a coterie that democracy or you got that freedom, you need a different of all those fraudsters, and all of that, leave him there with instrument. You need a formation of men and women with the them. Let us vote for these opposition parties, put in a new necessary skills to govern. And what South Africa needs today leadership. And then you will see the difference. There is is not how many dishes of boiled mielies I ate on Robben Mangaung and here is South Africa. So it is the only way in Island, that is history. People now need services. People which we can save the Constitution, and save the promises now need quality life. Children need education. We need a of democracy made as we were going to freedom, and made government that knows how to manage the resources of the when we concluded the negotiations at CODESA. nation. And forget the sentimentality that we are black, it has I take great pleasure in the fact that the problem that we got nothing to do with it. You can not dismiss a person from a are faced with in this country now does not choose colour. job, who knows how to do the job, and put somebody there Children who are white-skinned South African children are because they have got the same colour as you when they do being excluded from universities, some of them. When it not know anything about what needs to be done. And then comes to jobs they are being excluded. But you know, the people are sitting there, no food, no this and that. We are

Uniting Behind the Constitution 29 Genuine Multi-Party Democracy

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa heading for a serious catastrophe if we go this way. So now we there and stand in front of the people and talk to the people. must say to the people, if you vote for us we will depoliticise Nobody knows them. They do not belong there. Now, we the public service. must be able to go and appear before the people and say, this Men and women who apply for jobs will be evaluated on is who we are, this is what we can do for you. the basis - can they do it or not, not on the basis are they I am of the view that when we go to the State of the Nation members of COPE or members of DA or members of IFP. address, we need to do something. In our last meeting we Evaluate them on the basis of what they can do. Because if considered the issue and we will finalise our decision in the we are going to deliver quality services to the people we must meeting of the 12th, because we are meeting again on the bring quality men and women who can do these things for the 12th. It cannot be a State of the Nation as usual, there must people. That is what we are confronted with. And we need to be something different. And we must say something to the be practical. There will be prices paid with this thing. nation that is different. And we will do so. The campaign must When Tatane was shot dead in Ficksburg there was a start now. We need to be able to say, that is what you have contingent of young people that were sent there, they had just heard, that is what has been suggested, but we want to tell you been trained. They were trained after President Zuma had said something different. that the police will become a police force, even though the It must begin now so that the people going forward can see Constitution talks about a police service. So there is a force that that is what government says. Now you are promised that there in the townships, maybe you do not know, but in the the ‘willing seller’ - ‘willing buyer’ will go. We have asked townships - those who come from the black communities will the question, if you get rid of it, what are you going to do be aware - now there is a police unit called the Berets. They with the property clause in the Constitution? Are we going are slaughtering people there. The things that they are doing to Zimbabwe, or what? There is no answer. But we cannot are shocking. pretend we do not see or hear. As we sit here, Nkwinti has Now, that the people know. So those here in this country, told parliament that 99% of land that was productive that was those who are seen to oppose these things that the government bought by government or transferred to other communities, is doing, are going to find that they will be on the rough especially the African communities, that that land is lying receiving side. I spoke at the funeral of Tatane in Ficksburg, fallow and unproductive now. That is what he said, 99%. That and I said this is only the beginning, and this thing is going is a serving minister. Which means the food production that on. And then when Marikana happened I was dumbfounded, was on that land has been lost to the nation. Now we are I could not believe it. I talked to some of the mineworkers importing chicken from Brazil, and it must, necessarily, it must in those areas. There are people who are being used there. be more expensive than the chicken that we are producing in And the workers said, but these guys speak languages we do this country. It also means that the workers that used to work not understand. What language is this they speak? We do not on those farms are now unemployed, they are not earning know. So something very, very serious is also happening. anything and they cannot buy food. Crime must shoot up. We can not sit back, we must rally and defend the Because men and women who are hungry and have no jobs, Constitution. We must be ready. Within the opposition they lose their rational thinking. They do strange things. parties, we need men and women who must not only assist People talk about 2019. No! We need this government of the in development and policy options, and all of that, but who ANC out of the way yesterday. We need it out yesterday. I say are also going to be willing. Some of whom, not all, must this, I have no fear in saying this. I am not ashamed of it. I was be willing to go there and assist in implementing strategies a member of the ANC for 31 years of my life, amongst which and tactics and the work that needs to be done to take things 13 ½ years of my life were spent in the prisons of the country forward. It can not be that Nelson Mandela was the last of for freedom, for peace and democracy among the people of the leaders ready to sacrifice for the people. From among us, our country. That is what I was in jail for. When that thing does here, outside, there are many young people - black, white, not happen, I cannot suffer from the fatigue of struggle. I am you name it - ready if they are shown the direction to go, to ready to return if need be because there are men and women I work and ensure that our country becomes what it ought to agreed with, we will fight to get freedom and give our people be and take its rightful place among other nations. So this is the necessary atmosphere to build a decent life. where we are. Some of them lost their lives loyal to that commitment, and Many of the people, by the way, who are sitting in the I cannot now renege on that agreement. And I think we must National Assembly, were not elected by the people, because invite all other South Africans to say in honour of those who most of them, people do not know them. Who is that guy? paid so much - the Bram Fischers, the Joe Slovos and all of They do not know. And therefore we need to know that we these people, Helen Josephs, and Albertina Sisulus, and all can never go and stand before the people and speak because who died - there must be a peaceful country. We owe it to the people will say, who are you? We do not know you. That them, not only to go and vote but if there is a higher price to is why Sasolburg happened because none of them could go be paid, we must be ready for it.

*Transcribed from recording of speech.

Mosiuoa Lekota matriculated at St. Francis College in Marianhill in 1969 (KwaZulu Natal). In 1972, while at University of the North, he was expelled due to his involvement in the Student Representative Council (SRC) and Black Consciousness Movement (BCM), which was aligned to the South African Students’ Organisation (SASO). He was later elected Permanent Organiser for SASO. He was imprisoned at Robben Island Prison in 1974 while with SASO. In 1983, after his release, he was elected publicity secretary of the United Democratic Front (UDF). In 1985, he was one of the defendants in the Delmas Treason Trial. He was once again imprisoned from 1985-1989. In 1990, Lekota served as convenor of the ANC in Southern Natal as well as a member of ANC’s National Executive Committee (NEC) and its National Working Committee (NWC). In 1991 he was the ANC’s Chief of Intelligence. In 1994 he was elected as premier of the Free State province. From 1997 to 1999 he was the chairperson of the National Council of Provinces. Thereafter he was appointed Minister of Defense and also elected as National Chairperson of the ANC. Following the resignation of President Thabo Mbeki in September 2008, Lekota was one of 10 ministers who submitted their resignations on September 23. Mosiuoa Lekota is currently serving as the President and Leader of the Congress of the People, COPE, launched on 16 December 2008.

Uniting Behind the Constitution 30 Genuine Multi-Party Democracy

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Dr Theuns Eloff, Marit Arnold, Moeletsi Mbeki, Dr Lucky Mathebula, Judge Johan Kruger, Herman Bailey Dr Wilmot James Hester Kruger

Dr Anthea Jeffrey, Casper Venter, Brenda Steyn, Sipho Pityana, Adv Johan Kruger FW de Klerk Dr Holger Dix,

We can not sit back, we must rally “ and defend the Constitution. Mosiuoa Leko”ta

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa Closing Remarks* by Former President FW de Klerk to the FW de Klerk Foundation Conference on Uniting Behind the Constitution Protea President Hotel, Cape Town 2nd February 2013

I would like to thank all speakers, all panellists and very would disagree with its overall vision - or with its identification importantly, all attendees for being here today, for enriching of the challenges confronting South Africa. In particular, most the debate about the importance of our Constitution. I am sure people would agree that the two main priorities are education we are all going home with a better understanding and are and unemployment. The NDP makes proposals to address inspired about the need to support the Constitution. these and the other serious challenges confronting our society. Three general remarks before I come to my prepared speech. These proposals at least provide a pragmatic, inclusive and Firstly, some of you who are not English-speaking might find rational basis for discussions about our future. That was the one it strange that everything was conducted in English, but we road that we could take. The other road was the increasingly have quite a few guests. We had the High Commissioner ideological and racially divisive path that had been set out in from Great Britain, the Consul-General of England and other the ANC’s “second phase” policy proposals. They included diplomatic people here, and we have our partners - who I • increasing the role of government in the economy through think might be more proficient in English than in Afrikaans, the introduction of a “developmental state”; although Afrikaans is a Germanic language. So for that reason • greater state involvement in mining, falling short of outright we decided to conduct the conference in English. nationalisation, but including increased taxes on mines; Secondly, I would like to underline that we at the FW de • accelerated land reform that “must represent a radical and Klerk Foundation are apolitical. We do not hesitate to invite rapid break from the past, without significantly disrupting political leaders to speak to us. At the previous conference in agricultural production and food security” and that would July Premier Zille addressed us, and we have also regularly abandon the principle of ‘willing buyer, willing seller’; and invited the ANC to participate. So far they have, generally • the idea that the government should be able to use the speaking, shunned our invitations to come and put forward assets of insurance and pension funds for state developmental their case in open debate and open discussion. projects; and Thirdly, I am not going to comment on all the subjects we • a proposal that a Presidential Commission should be have dealt with today. They have all been adequately dealt appointed to consider the future of the provinces. with. But on the issue of the Rule of Law, I am sorry that somehow or another, because of a lack of time, one important As we now know both roads received support at Mangaung. issue did not come to the fore. And that is the importance, apart On 12 January, in the first major policy statement after the from having independent courts, of having an independent Conference, President Zuma appeared to support both options: National Prosecuting Authority (NPA). On the one hand, his statement was a particularly harsh As important as independent courts are, there is also the articulation of the second phase NDR line. It opened with need for an independent prosecuting authority, as required by repeated and inflammatory references to the depredations the Constitution. And if we analyse what has happened with of apartheid which appeared to be consciously aimed at the NPA in the past years, it is clear that there are problems. stirring up racial grievances and more insistent demands for It goes hand in hand with disbandment of the Scorpions, with “restitution”. In short, there was nothing in the statement that the firing of Pikoli, with decisions not to prosecute Mdluli, not promoted reconciliation or national unity, which to my mind to produce documentation about why charges were dropped is the primary task of any president of South Africa. We should against President Zuma. A whole conglomeration of things also take note of the underlying theme that, in President Zuma’s have happened which have hurt the independence of the view, the “racist legacy” - and not the policies and actions NPA. And I think in future debates we must also give that a of the past 18 years - was responsible for “persistent poverty, prominent place in our discussions. inequality and unemployment” in the country. According to Now, ladies and gentlemen, we decided to dedicate this President Zuma, “Monopoly domination of the economy” conference to the theme of “Uniting Behind the Constitution” (whatever that means) and the “skewed patterns of ownership because we believe that the future success of South Africa and production” were responsible for the “inequality, dualism and all its citizens is closely linked to us being able to do and marginalization” that characterise the economy. All so. This is particularly the case at this present volatile stage this was completely in line with the NDR. At the same time, in the development of our young democracy. Last July the gratefully I say, there were clearly some pragmatic influences Foundation convened a conference in Johannesburg on the on the formulation of President Zuma’s statement: theme “South Africa at the Crossroads.” At that time I said that • It called on “ANC members and citizens to celebrate, South Africa stood at the crossroads: We could either take the promote and defend the country’s Constitution at all times”. road to economic growth and social justice that is indicated • It urged “all South Africans to unite behind the NDP…” by the National Planning Commission (NPC) in its National • It referred to the infrastructure development plan and Development Plan (NDP) - or we could take the “second called on government “to hasten the implementation of all 18 phase” road toward the goals of the National Democratic strategic infrastructure projects…” Revolution (NDR). I also said that although some of the NPC’s • It stated that the implementation of land reform measures analysis was open to debate, few reasonable South Africans would “take into account the principles contained in the

Uniting Behind the Constitution 32 Closing Remarks

Celebrating Diversity and Working for National Unity in South Africa

Africa South in Unity National for orking W and ersity v Di ating Celebr Constitution in relation to land expropriation”. people. But I firmly believe that we cannot stop here, with the • It called on workers “not to undermine the right to strike conference of today. I listened very carefully and it dawned or to protest by engaging in violent action which undermines on me to what extent - while we all say we unite behind the their cause”. Constitution - there is a tendency to overemphasise those • At the same time, it asked employers “to enable workers parts of the Constitution which are near to one’s heart and to exercise their labour rights freely, while exercising their to underestimate other parts of the Constitution. A few times own rights as employers which are also enshrined in the I felt that I disagreed with two speakers who both addressed Constitution”. the same subject because I felt there was a lack of balance. • It called on teachers “to be in school, in class, on time, I believe the Constitution is more than just regulating the teaching for at least seven hours a day” and on “learners to division of powers and all the important things it does. I want dedicate themselves to their studies so that they become to remind all of you, the Constitution is a pact. It was a political productive members of society”. deal. It ended a threatening civil war. It brought us back from • It also appealed “to ANC members and society in general a precipice. And that pact should be upheld. But, because it to remain vigilant and support the fight against corruption.” was a pact - and it has been emphasised that it encapsulates compromises - it is an ‘and-and’ Constitution. The choice is Most importantly, the ANC’s National Conference strongly not between - let me give one example - continuing with endorsed the NDP as the primary blueprint for the future. So affirmative action and black economic empowerment (BEE), where do we stand? Are we still at the tipping point? I think or abolishing it. It is an ‘and-and’ Constitution. we are still at the crossroads. Time will tell which of these It says and creates room and space for policies focused tendencies will win out in the end. Time will tell which of on restitution, focused on affirmative action, focused on BEE. these two conflicting approaches will prevail in the internal There is a need for that I believe. And I support the fact that debate within the ANC. Until then it is fair criticism to ask something meaningful needs to be done continuously and for a which is the real voice of the ANC? One thing is, however, long time. On the other hand, the Constitution does not allow certain - and that is that any successful future will depend unfair discrimination. And if affirmative action and BEE are on our ability as a nation to unite behind the Constitution. I implemented in a way which constitutes unfair discrimination, believe that the Constitution contains the remedies for all of then it is wrong, it is unconstitutional. It should be ‘and-and’. the serious challenges that confront us. The solutions to our Yes for transformation, but also yes for protection of vested problems are encapsulated in its founding values of human interests, also yes for preventing the abuse of power, also yes dignity, the achievement of equality and the advancement of for upholding the pillars on which this Constitution is built. human rights and freedoms. I therefore feel that we need to consider cooperation and • The Constitution calls on us to heal the divisions of the past - partnership with others, to maybe have a bosberaad where we and not to exacerbate them with inflammatory rhetoric; bring together important interpreters and spokespeople and • It calls on all of us to improve the quality of life of all citizens advocates for the Constitution. We should sort these differences and free the potential of each person. This will not happen in emphasis out between us. We should broaden the consensus while management and labour continue to regard one another about how we can balance the seemingly conflicting provisions as class enemies and fail to achieve fair outcomes based on which are contained in the Constitution. I will therefore ask my equity and the acknowledgment of economic reality; Board of Trustees and Dave to take the lead in thinking about • The Constitution calls on us to lay the foundations of a taking the discussions which we have had further, with a view to democratic and open society in which government is based shortening the list of things where we differ in our interpretation on the will of the people and every citizen is equally protected of the Constitution, and with a view to lengthening the list by law. This will not happen if we continue to question the role to which we can put our signatures at the bottom and say, of the courts; if we continue to erode democratic institutions; on this we agree. When we talk about “Uniting Behind the if we continue to allow the erosion of the independence of the Constitution”, we need to have a clearer vision and a clearer NPA; and if we do not stop attempts to undermine freedom of understanding of what our Constitution really means, within expression. the framework of the pact which encapsulates the compromises • The Constitution proclaims that everyone has a right to which we reached. There is at the moment a tendency to elevate education and declares that the child’s best interests are of some aspects of the Constitution as the absolute or primary, paramount importance. This means that none of us should rest and to relegate other aspects in the Constitution as if they are until we have dramatically improved education outcomes and secondary. The challenge is that the Constitution as it is - with the conditions in which many of our children still live. every clause - should be our prime concern, as one entity. It should be interpreted as it stands and not out of context. We believe that the Constitution provides the blueprint that Thank you once again for attending. I wish all of you well. we need to promote human rights; equality; the Rule of We at the Foundation highly appreciate the participation of Law and genuine multiparty democracy. We hope that our so many opinion formers and hope that the message from this conference today has helped to illustrate the essential role conference will be, “Let us unite behind the Constitution”. that it can and must play to achieve a better future for all our Thank you.

*Transcribed from recording of speech.

During his presidency from September 1989 until May 1994, FW de Klerk dismantled apartheid and initiated and presided over the inclusive negotiations that led to the adoption of South Africa’s first fully democratic Constitution in December 1993. Also in 1993, he was awarded the Nobel Peace Prize, together with Nelson Mandela. After the election on 27 April 1994, Mr De Klerk served as one of South Africa’s two Execu- tive Deputy Presidents until 1996, when his party withdrew from the Government of National Unity. He retired from active politics in September 1997. In 1999 he published his autobiography, The Last Trek - A New Beginning and established the FW de Klerk Foundation. The Foundation upholds the Constitution through the work of its Centre for Constitutional Rights and works for positive relations in multi-cultural societies. Mr De Klerk is also the Chairman of the Global Leadership Foundation, established in 2004, whose panel of former presidents, prime ministers and statesmen provides discreet advice to heads of government on issues that concern them.

Uniting Behind the Constitution 33 Closing Remarks

Celebrating Diversity and Working for National Unity in South Africa

Celebrating Diversity and Working for National Unity in South Africa Upholding South Africa’s National Accord

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Celebrating Diversity and Working for National Unity in South Africa