A better South Africa cannot be realized if we continue to be blind to inequality and poverty implications of our day to day decisions. This includes legal and policy making processes, incorporating litigation and judgements. In other words, if we continue making decisions, laws and policies that are social justice impact unconscious, ending inherited race, gender, disability and other forms of structural inequality will remain a pipe dream
By Prof Thuli Madonsela; Law Trust Chair in Social Justice, Stellenbosch University. Founder: Thuma Foundation and Social Justice M-Plan
A key question asked at a recent NADEL conference themed “Poverty, Inequalities and Corruption, Symptoms of a State in Gradual Collapse”, was whether South Africa’s inherited legal system is fit for purpose or a hindrance to advancement of South Africa’s Constitutional vision.
Underlying a session I participated in was a theme that principally explored whether the South African legal framework had the capacity to effectively advance the social justice promised in the Constitution, given its ideological orientation.
Key questions included the capacity of received common law precepts developed in times of slavery and legalised discrimination on grounds such as gender, race, and disability. Were these fit for purpose regarding the achievement of equality and freedom for all. Issues raised included the ability of the legal framework to embrace the humanity of all, particularly by ensuring access to justice for all and fair treatment of all both in terms of judicial processes and outcomes. To achieve fairness, the justice system had to breach the chasm between law and justice, which was part of the inherited legal architecture.
The essence of the discourse was whether there can be a better South Africa without social justice.
Loosely defined, social justice is about recognising the humanity of all regardless of difference and legacies of historical injustice. Ultimately, social justice entails just and fair access to all opportunities, resources, and privileges in society and an equally fair and just distribution of burdens. In other words, a socially just system should not make it easier for some and more onerous for others to bloom.
My view was and still is that today is better than yesterday. But a better South Africa for all is not attainable if we continue approaching the design and implementation of laws, policies and plans the way we’ve done in the first 25 years of democracy and before then.
A better South Africa cannot be realized if we continue to be blind to inequality and poverty implications of our day to day decisions. This includes legal and policy making processes, incorporating litigation and judgements. In other words, if we continue making decisions, laws and policies that are social justice impact unconscious, ending inherited race, gender, disability and other forms of structural inequality will remain a pipe dream. In the legal system, this includes rethinking the inherited common law principles and rules, among others, deployed to win cases in a manner that feeds on and reinforces historical disparities.
In a world where people are unequal or different, treating them the same or applying a one size fits all approach may end up being not only unjust, but cruel.
Let us take the case of Mr and Mrs G, real people, who sought refuge in the courts and later the Public Protector after their small construction business was ruined by a municipality’s refusal to pay on the ground of a legal technicality. Thinking about it, how many cases are won on legal technicalities? Is this just, asked High Court Judge, Nelisa Mali, during a Human Rights Democracy Dialogue (referred to as a #Demologue) and Social Justice M-Plan Café co-hosted by Thuma-Foundation and University of Stellenbosch’s Social Justice Research Chair, on Human Rights Day, March 21, 2019.
Mr and Mrs G got the wrong end of the stick because of unconscious use of old skins to hold the new wine that is the new Constitution. Half way through constructing RDP houses for a municipality in the capacity of a subcontractor, a local government representative advised that project monies had dried out but authorised completion of the project on agreement that payment for the outstanding top structure (roofing for me and you), would be made at the beginning of the next fiscal year.
On project completion, the Municipality refused to pay arguing that the instruction to proceed was not given in writing as the contract prescribed. The court upheld the municipality’s argument and the technicality that the Gs company had no locus standi, as they were a subcontractor thus had no legal relationship with the Municipality. With the court having upheld what I believe was unjust, unfair and unethical, the Gs came to the Public Protector for protection. After the Eastern Cape Team sent them back on the ground that a court had spoken, my Deputy and I heard the G’s appeal during the outreach programme I had initiated to take Public Protector Services to remote communities to enhance access services.
Avoiding second-guessing the courts, which would have been unconstitutional, the Public Protector investigation canvassed a previously uncanvassed issue of proper conduct in state affairs as per the Public Protector’s mandate under section 182 of the Constitution. After asking the standard questions of what happened, what should have happened, is there a discrepancy between the two and if so, is such discrepancy justifiable and if not, was someone harmed and if someone or a group was harmed, how do we place them as close as possible to where they would have been if the state had acted properly as envisaged in section 182 read with section 195 of the Constitution?
The finding was that the state acted improperly by misusing funds meant for the RDP project and by not issuing instructions in writing and ultimately by using a technicality based on its own maladministration to refuse to pay for work done. The remedial action was an order that the Municipality should pay the capital debt with interest. After writing a letter to the Public Protector accepting the findings and undertaking to pay, the Municipality changed when the Mayor changed and refused to pay. When the report was taken on review, the court found in favour of government, which I’ve been told was with the Public Protector’s support. Was the decision that a small business should lose out on the money it spent, just, fair and in line with values underpinning our Constitution? You be the judge.
After hearing the story of the Gs, how many would take the risk of going to court. This brings me to the question of access to justice. Justice Minister Dullar Omar was very clear in Justice Vision 2000, that access to justice transcends physical access. Executive minded decisions have long been regarded as unjust. But injustice is not always due to executive mindedness. In many cases, injustice is perpetrated when those dispensing justice worship at the altar of rules and not justice and lose the person in blind focus on the system.
But sometimes the system is too tight even for a quintessentially liberal judge. After all, the rule of law requires a certain amount of predictability of litigation outcomes. In such cases, the creativity of judges requires them to revisit the rules, question the ideological underpinnings of underlying assumptions and check such against the social justice and other human rights imperatives in the constitution. This is what Judge President Mlambo stated. He refused to be Pontius Pilate, in the face of soul breaking injustice in the auctioning of people’s homes and other immovable properties in bank foreclosures against mortgage defaulters.
What drove Justice Mlambo was an understanding that the law should serve justice and not injustice. He understood that the blind application of facially neutral rules and practices without looking at different circumstances of those impact can cause gross injustice. He noted that the majority of lenders were historically advantaged financial institutions while the majority of defaulters were historically disadvantaged black people. He also noted that auctioning without a reserve then asking the defaulter to pay the difference was grossly unfair and unjust. He also observed that the auctioneering process was irrationally stuck in the 19th century when the city was a single street small town and the disputants being a handful of merchants who regularly visited the auction notices obscurely placed in court.
He surmised that the practice did no justice to anyone accept the few bargain hunters who thrive on the opacity that surrounds auctions. His conclusions on the disparate impact of the foreclosure rules and related practices, was equally reached by the Thuma Foundation, which had then teamed up with the Stellenbosch Social Justice Chair and Law Clinic to approach Standard Bank about the problem. One of the issues discussed and agreed on was the irrationality of losing homes and land for small loans only to find that those who buy at auctions are already landed or foreigners thus exacerbating pre-existing land, other property and housing disparities in subversion of the constitutional injunction in section 25, to advance equitable distribution of land. To spot and address the injustice, Justice Mlambo needed a social justice centric ideological leaning. The question is are his colleagues cut from the same cloth? What about the law makers?
Beyond the ideological leanings or proclivities of individual lawyers and judges, is the legal system as a whole grounded on an ideological orientation that is aligned with the constitutional vision. Is it a tool that embraces the social justice dimension of the constitutional promise? Does the law expand the frontiers of freedom and equal enjoyment of all human rights for all as declared in the Vienna Declaration of 1993?
As someone who grew up as a Marxist-Leninist, my glib answer would be that the ideological orientation of South Africa’s dispensation is capitalist and because of such it cannot be a midwife for social justice. But knowing what I now know as a social justice practitioner that would be a lazy answer. My current work focuses on combatting poverty and structural inequality by using the SDG and NDG opportunities to mobilize academic and civil society, including business resources, to design and review policies to improve their social justice impact. Support activities include funding an ambitious social justice agenda.
I’m also involved in the Thuma Foundation, a social movement vehicle that fosters democracy literacy and leadership to ensure democracy works for all. One of Thuma’s game changing projects is the Thuma Enterprising Communities initiative which empowers communities to translate global and national goals into community and personal goals while facilitating partnerships with business and government to end poverty and reduce structural inequality by 2030( SDG 1, 5 and 10).
My work is undergirded by the belief that the law is both a mirror of and shaper of societal values. I further believe that the shadow of the law transcends the courtroom. I’ve also learned that the law principally reflects the vision, values, hopes, fears and interests of the drafters.
For example the Promotion of Equality and Prevention of Unfair Discrimination Act No4 of 2000 (Equality Act), was drafted by human rights activists, such as Dr Barney Pitjana, who subscribe to the notion of justice as transcending just us and is essentially about justice for all. The Equality Act, which includes chapter 5 seeks to proactively eradicate inherited structural and systemic racial, gender, disability and related disparities as a legacy of the past. The paradigm influencing the drafters was that the antidiscrimination provisions of the Act, could not address the inherited accumulated advantages and disadvantages that keep some on higher socio-economic ground and some in the valley regarding the same.
The thinking further included an understanding that socio-economic inclusion efforts should leave no one behind in all facets of the economy and life
The inclusion of Chapter 5 in the Equality Act was resisted by those that believed that by the stroke of the new progressive constitution all were now equal and that the free market meant there was now fair competition between the historically advantaged and disadvantaged. Once the bill was passed the resistance shifted to Treasury where officials inherited from the old system resisted the implementation of chapter 5.
A Regulatory Impact Assessment was later conducted by a Department of Justice official also from the old system, who found the Act to impose burdens on business that pose a regulatory risk. A telling factor is that the RIA regulatory burdens were not raised about the Broad Based Black Economic Empowerment Act, which was piloted in out of the blue without the rigorous public process of the Equality Act. Notable is the regulatory burden of BEE on small businesses and its assimilationist approach to economic inclusion.
There is no gainsaying that each group of actors, both the drafters and those that resisted the implementation of the Equality Act, were informed by their ideological leanings. But one thing for sure, both appear to have assumed that the breed of capitalism that South Africa inherited had a capacity to allow racial and gender restructuring. Of course some may have felt that such was unnecessary. At the NADEL conference, a question was asked whether the economic model itself is fit for the purpose of enabling the unmaking of the colonial and apartheid legacy of social stratification.
The answer from all sides was no. While a few said the answer lies in the pursuit of socialism, many accepted that socialism pilots had also succumbed to the iron law of oligarchy or its inevitability. Those who argued for socialism to even challenge the ideological underpinnings of the Constitution, including its framing of the property clause in section 25, which they said was fundamentally pro the inherited status quo.
Many argued for jettisoning the fundamentals of the current legal framework and replacing it with one that fosters some form of social democracy, which in turn would foster conscious capitalism. Embedded in the argument was the need to decolonise and depatriachize the ideological underpinnings of the law and its institutions. The judges present, among them Mlambo, JP, and Constitutional Court Justice Madlanga, reminded us though, that a lot can be done through liberal interpretation of current laws and judges using their rule making power to effect change in favour of social justice.
My view was that we need to do both liberal interpretation of existing legal rules in a manner that reduces inequality and poverty and also consider an equivalent of the Roman Twelve Tables exercise. The Roman Twelve Tables exercise came about as the result of a continued struggle between the upper and lower classes, resulting in a board of ten men appointed to draw up a set of laws in 451 BC. A similar exercise would seek to review everything through the prism of the society we want to become as envisaged in the Constitution.
That structural and systemic inequality is a threat to sustainable democracy can no longer be denied. The relative success of the racially divisive Bell Pottinger White Monopoly Capital Campaign during the Public Protector state capture investigation is an example of the potency of extreme poverty and inequality as a polarising tool. As long as there is injustice somewhere there can’t be sustainable peace. The Catherine Viner: Editor of the Guardian Weekly says: “Extreme inequality is one of the biggest drivers behind the political shocks we have seen in the last few years….” Recent scholarship also suggests that Rome fell not only because of corruption but primarily because of the fight back of the poor.
The World Bank and International Monetary Fund (IMF) further see socio-economic inclusion as essential for sustainable economic growth and development. Socioeconomic exclusion is an impediment to economic growth primarily because it fosters structural inefficiency in the economy and innovation spaces. With many locked in historical social exclusion regarding education, health, wealth and property distribution, income, innovation, enterprise development, a significant portion of the population that could add to the nation’s deployable human capital, is not optimally deployed.
Promoting equality and more comprehensively, social justice, therefore is not an act of altruism but an act of self-preservation for society and the world. This was the view that informed the adoption of the Universal Declaration of Human Rights by the United Nations. It is the driving factor behind the UN Sustainable Development Goals and the slogan “Leave No One Behind”.
Additionally, structural inequality and poverty are also at odds with our constitution and international human rights obligations. Our Constitution enjoins us to journey towards the achievement of equality. It further promises all that the society we are building is one where everyone’s potential shall be freed and life improved. It tops this up with basic entitlements for all citizens and others, including basic rights such as access to water, food, health services and education and supports this vision of society with a carefully designed state architecture, diffused state power anchored in cooperative governance, transparency, participation, accountability and putting the people and the constitution first.
Is a better life not possible without equality? In other words is a better life possible when some are left behind? There is no doubt in my mind that today is better than yesterday for all. This is true even if in minuscule ways such as the right not to be called names and to vote for some. But we must admit that for many a significant better life is currently a case of a dream deferred. I must say that for those enjoying the fruits of democracy, their better life is not sustainable. In Zulu we say “Indlala Ibanga ulaka”. Another African proverb saying “A hungry Child burns the village down” has similar connotations. We saw such hunger and anger (hanger) during fees must fall. There’s far too many hard working people that are poor, hungry, malnourished and trapped in social immobility.
Of the 64.2% person’s classified by law as Africans who are poor, this translates into poor access to education, health and nutrition, justice, social security, the economy and other opportunities and privileges in society. More heart-breaking is that the next generation and that which follows are likely to be trapped in poverty unless a disruption occurs. This is because poverty and inequality operate exponentially.
What has gone wrong? Despite some of its ambivalences, the constitution provides a framework with enormous potency for transformation in favour of social justice and shared prosperity. However, its implementation has been hamstrung by a thinking that old skins are fit to hold new wine when it comes to generic laws not designed to advance equality. Even with equality laws, there’s insufficient systems thinking. For example, BEE and Employment Equity Laws assume that work place inequality can be entirely fixed through economic laws. That’s not true because everything in society impacts on everything elsewhere. Incidentally, apartheid architects such as Verwoerd were excellent systems thinking thinkers who understood societal complexities. They tinkered everywhere to support their preferred societal structure. Corruption has played its role in exacerbating the situation and so has maladministration and constrained access to justice for many.
Ultimately, a sustainable better South Africa is not possible without significant advancement in ending poverty and inequality. Realigning our pathways with the society we want to become, should start with interpreting current laws and policies with a socially conscious mind while considering a Twelve Tables like exercise that seeks to ensure full alignment between the future we want and the legal and policy pathways we choose. Each generation has an opportunity and privilege to improve its life and that of future generations. It’s our turn to make a new dawn a sustainable reality for all.