In his treatise on 'The Future of Roman-Dutch Law...', and as cited by Meierhenrich, Albie Sachs submits that '
"when Mandela made his famous
denunciation of South African justice at his first trial after his capture, he
did so with an elegance that enriched the patrimony of English usage in South
Africa and, utilizing the principles and procedures of South African law to the
full, he turned Roman-Dutch Law into a weapon of attack. His basic critique of
the legal system was not that it was Roman-Dutch Law but that it was racist.
Thus he did not object to having courts with trained judges, to written laws,
to defense and prosecution of lawyers doing battle with each other according to
defined procedures, but the fact that he felt he was a black person in a white
person's court; the laws were made by the whites and administered by the whites
in a courtroom that breathed the atmosphere of white domination, and this
should not be so".
Mandela was reflecting on a legal system that has as a towering
feature 'the absolute supremacy of the law', a feature out of which the
conception of the 'rule of law' in South Africa, and arguably so,
originates.
Whilst the basis of South Africa's
constitutionalism is the principle of the rule of law, as an idea, it does not
seem to have found practical expression in the daily lives and experiences of
all South Africans. The normative demands of the 'rule of law' in a political
economy context whose operating system and grammar is still etched in a 'rule
by law' for the majority who are only political citizens of the country, and 'non-to-under-naturalisation-process'
economic citizens, have for a while been grappling with how they co-exist with
a profoundly extractive economic system. Law has in South Africa always served
to 'create, regularise, and authorize power over the economically and
culturally dominated, rather than regulate or limit it. Historically,
in South Africa 'law reflected the discriminatory expectations of the least
enlightened sections of (the dominant in society) and translated popular
prejudice into legal norms, most of whom undergird the legacies of our 'law'.
As a consequence, such law would provide authoritative support for the
socio-economic dominance templating attitudes of those determined not to relent
in their devotion to the maintenance of established supremacies in society.
Until recently, its continuity, and purely because of its difficulty to
dislodge with its legacies, law has also had the role of restraining those who
would otherwise question the prevailing (social or otherwise) order by
threatening them with ostracism and/or prosecution forms.
In similar parlance, South Africa's
Tourism Minister, Lindiwe Sisulu, raises the congealed injustices that the
co-existence of poverty, unemployment, and inequality with the 'rule of law'
principle foregrounds in a constitutional democracy whose promise is 'a better
life for all'. Contrary to an emerging consensus that she is questioning the
Constitution she has taken an oath to 'protect, defend, and uphold', she comes
across as interrogating the transformational thrust of 'the law' in the 'rule
of law'. Her article raises questions about the structure of the
'post-Apartheid law' as a 'successor in law' of 'Apartheid law', which is
'administered' by a judiciary whose claim to 'existence' is etched in
jurisprudence that had lady justice who saw 'the racial makeup' of the public
as part of a changing continuum not easily dislodgeable from its source.
Writing in the Stellenbosch Law Review on
transformative constitutionalism Justice Pius Langa raises the matter of the
goal of the South African Constitution in respect of dealing with our past and
guiding society to a better future. He cites the Epilogue of the 1993
Constitution, by the way, one of the last pieces of legislation to come out of
a whites-only political mandate given to FW de Klerk's National Party in 1989, which
characterizes the Constitution as some form of bridge. In fact, the Epilogue
describes the Constitution as providing
"a historic bridge between the past of a deeply divided society
characterized by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy, and peaceful co-existence
and development opportunities for all South Africans, irrespective of colour,
race, class, belief or sex".
The bridge metaphor, as the judge further
argues, suggests that being on the Constitution will make its relevance of
transitioning society, through transformative constitutionalist acts of policymaking and implementation, including adjudicating on the reconciliation of the
diverse interests in society, a whole of State Affair, of course with
government as the predominant and active agency of the State. Having
characterized our past as one end that society should be pulled away from, and the
future as a dynamic destination to arrive at, the metaphor is not ruling out
the possibility of some in society being on the bridge only to keep the entire
past intact and unchangeable to the extent that is sustains accrued benefits.
The strength and authoritative power of the Constitution to be interpreted as
you are on it is what the 'rule of law' and 'the supremacy of the
Constitution as foundational values of our constitutional democracy is all
about, and therein lies the impeccability of our democratic order,
notwithstanding the inequalities that propel access to its transformative
interpretation. This underscores what Albertyn and Goldblatt suggested that it
would
"require a complete reconstruction of the state and society,
including a redistribution of power and resources along egalitarian lines. The
challenge of achieving equality within this transformation project involves the
eradication of systemic forms of domination and material disadvantage based on
race, gender, class, and other grounds of inequality. It also entails the
development of opportunities which allow people to realize their full human
potential within positive social relationships."
to move our society from one end to the other.
These assertions locate the issues that
Lindiwe Sisulu raises about the Constitution. What thinkers should preoccupy
themselves with is to what extent will the inertia of transformation, once on
the bridge, will create irreversibilities that would not bring the role and
sacrosanctity of the Constitution into disrepute because it allows
anti-momentum acts to delay transformation to the other side. If, and as Judge
Langa writes, transformation is a social and economic revolution, then
transformative constitutionalism will ring hollow if the current templates of
economic domination are out of its reach or are insulated to its impact by
actions of those in the judiciary as constructs of the social milieu that
produced them. The reconstruction of jurisprudence to move away from a 'culture
of authority, or simply being dependent of the interpretation of the legality
of actions as provided for in law, to a 'culture of justification', which is
simply one that focuses on the extent to which the exercise of power is
expected to be justified, thus recreating society to be built on persuasion
rather than coercion. The rights and values that the Constitution enshrines have
firmly become the basis upon which all decisions that wield both public power
and impact will be substantively defended. Transformative constitutionalism has
to date expanded the, as Judge Langa posited in his article, scope of
responsibility to justify their decisions to move beyond a reliance on
authority but to include reference to their ideas and values.
It is in the ideas and values realm that
Lindiwe Sisulu's article might have touched the raw nerve of the basis and
politics of the 'law' that our democracy is supposed to be about. She might be
opening a debate on the coloniality of 'the ideas and values' the justices
empowered to interpret our transformative constitutional journey are
referencing to come to a decision. She might be interrogating the politics and
political economy fundamentals that instruct the adjudication edifice of South
Africa, given the power relations that emanate from unresolved spoils of wars
of conquest that define property and power relations in society.
Yes, the timing of the article might
elicit a succession debate discourse more than the substantive issues Lindiwe
Sisulu is raising. The succession debate is the mud outside the pot, inside the
dirty-looking pot is a well-cooked delicacy of socio-economic engagement that
pulls into our South Africanness the transformative constitutional deficits the
dominant in society have ensured we do not convert into liberation promise
surpluses. CUT!!!
🤷🏿♂️A ndzo ti vulavulela
🤷🏿♂️Leswi, a swi helelanga ti ha ta vuya
🤷🏿♂️Be ngisho nje
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