Judge Dennis Davis
The Constitution

Judge Dennis Davis - The Constitution

- I need to start my talk this evening by repeating what I said on Sunday night. It’s extremely difficult, I think, to be thinking rationally about anything else at this particular moment, than our brothers, sisters, relations and friends in Israel. I was struck by the fact that Deborah Lipstadt, that quite outstanding chronicler of the Holocaust said, I think I saw it on Monday morning, that, “Saturday was unquestionably the worst in Jewish history since the Holocaust.” Indeed, she’s correct. And the only thing I can hold onto is strange enough, last night, seeing a clip of the British Prime Minister, Sunak, talking at a schule in London, and when he basically referred to “Hatikvah.” Does seem to me that the fact that we have a national anthem called the “Hatikvah,” which essentially encapsulates the notion of hope, is perhaps the best that we can hold onto that better times may come as much as this is not going to be better times for so many people who’ve lost not just their lives, but families have lost, brothers, sisters, friends, parents, children. It’s unspeakable. However, we’ve been continuing with these lectures and I will do so faithfully myself by talking to you about the South African Constitution. Now, in a way, this talk of mine follows on from Colin Bundy’s talks, as he described for you the development of how South Africa got into a constitutional democracy. And my talk is to talk about that. Let me just explain. I’m of course talking as a constitutional lawyer. I’m talking as somebody who was actually at the negotiations for what was called the interim constitution I’ll explain that a moment. My brief was with three others to draught the first electoral act for a Democratic South Africa.

But we were all there together trying to craft a constitution to lead South Africa into a democratic country. So my take on this to a large degree is from somebody apart from writing extensively about it, was fortunate enough to actually be there at the birth of the South African constitution. But I need to go back a little bit, if I may. Constitutions in a sense, have been part of South African discourse for a very long time. And I suspect that Professor Bundy would’ve referred in many instances to a series of documents that were emanated from the ANC, including the Africa claims, the Freedom Charter, etc. All of which in many ways, represented an attempt to have some entrenched set of rights as part of the South African legal fabric. Of course, they all became, as it were, banners against under which people marched for a Democratic South Africa stemming into the 1980s. By the 1980s, it was clear that the sustained opposition in the main Black South Africans, but let us not only, just be clear that many white South Africans were part of this, not a majority, but there were significant amounts so that it was essentially in many ways, a non-racial struggle. Obviously led in the main by Black South Africans. As it became clear that the National Party was not being able to quell the unrest and it was going to continue a pace, a series of events start to occur. And some of that no doubt would’ve been spoken by Professor Bundy. Some of it is also alluded to in my talk with Johnny Steinberg and his extraordinary book on Winnie and Nelson, in which people started talking across the lines as were National Party and the African National Congress about settling this dispute which had gone on for so long, couple of centuries, really.

And what is interesting about it was that both sides, for entirely different reasons, came not to a dissimilar point, namely that what was required was some form of written constitution, which would essentially allow South Africa to move into a different form of society to that which characterised apartheid. The South African government at the time, under the chairpersonship of Judge Olivier, Pierre Olivier, commissioned the Law Commission of South Africa to consider what were called group and individual rights. And you understand what they were on about. They were, although individual rights had to be part of any Bill of Rights and thus any written constitution, there was of course a lot of talk about group rights, which was ultimately designed to secure interests of the Afrikaners in general and in particular the white’s in general. And essentially the blockage mechanism against majoritarian rule. But the point of the story was that they suddenly realised that they had to change the fabric of the South African constitution away from its racist character to something slightly different. And so the law commission, on behalf of the ruling party, began an exploration which culminated in a very thick volume of report about what we called group and individual rights of South Africa. At the same time, the ANC had started to think about Bills of Rights. Now I need to pause here and say there’s a wonderful book called “Dear Mr. President” by the distinguished South African historian Andre Odendaal, which is really worth reading because what Professor Odendaal does in his book is document the journey which the ANC engaged in, in order ultimately to formulate their proposals for a bill of rights and a written constitution. All sorts of people were influential in that, but the thrust of it was that all of a sudden they began to think through the idea of a bill of rights.

The most plausible explanation I can give to that is one which comes from Pallo Jordan, who of course was the leading ANC person at the time,. Mr. Jordan suggested the following, that when the Iron Curtain came down and when Gorbachev actually informed the ANC that the game was up, and that Russia at the time, the Soviet Union to be more accurate, at the time was no longer going to sponsor the ANC in the way it did, they had to look towards the West. And one of the ways that they thought was best look at the West was to sell the idea that South Africa could become a constitutional democracy with all the appurtenances of Western democracy. And so there was a, as Odendaal documents, Tambo, he was obviously a very able leader commissioned the ANC a constitutional legal committee on which all sorts of interesting people was led by Professor Jack Simon, who once upon a time had been a professor at the University of Cape Town before the Sharpeville Crackdown. There was a Professor Kadar Asmal, initially from Ireland, who eventually came to UWC and of course Justice LB Sachs. Of course, he wasn’t a judge then, but he was of course also one of the leading ANC constitutional scholars, and they were burrowing away at exactly the same time as Pierre Olivier was. The point story is that by the time you get to 1990 and De Klerk’s sudden announcement on February the second of 1990, that he was going to unban the ANC and the Communist Party and allow normal politics to take place in South Africa. That began a slow and exhausting process towards this constitution that South Africa finally got. Now the problem, and it was a very significant problem for all sides.

With that in effect, how were you going to draught a constitution before an election? In other words, the ANC’s position was that you couldn’t have a constitution which would’ve been crafted by unrepresented people. In other words, at that point, there was no election, the government was still the National Party government, they were still in charge, and indeed nominally were in charge until 1994 when South Africa had its first democratic elections. And on the other hand, the National Party’s line was perfectly obvious, stemming from the initial ideas of Pierre Olivier, albeit that those had changed to jettison group rights to a considerable extent and concentrate far more on the protection of property rights for all, their line was, you get the Constitution first and then we’ll have the Democratic elections. So there was an impasse between the two sides. What should be done, how do you reconcile this? And I have to say, the South African… This took a long time because they all got together at this particular gathering, which was basically gathering to develop a Democratic South African constitution and all sorts of political parties. I mean, everybody with literally their fax machine and the secretary were there, but ultimately the two big players where the National Party and the ANC. And what remarkably occurred, and I think somebody who was absolutely instrumental in this was the man who became the first president of the constitutional court, and later the Chief Justice South Africa, Arthur Chaskalson, crafted the idea that if you could agree on 20 odd constitutional principles, which would be, as it were, non-derogable. They had to be there.

They had to be central to any constitutional document. So what remarkably occurred was we all agreed on these 20 odd principles, which essentially would’ve included all of the standard requirements for a liberal democratic society plus a bit more. They were all there. And the idea was we would now draught a constitution before we had the Democratic election. But then once the Democratic election had taken place, there would then be the democratically elected parliament would ultimately formulate the final Constitution. And that constitution had to be compliant with these 20 odd constitutional principles. And who would enforce those constitutional principles, the Constitutional Court to South Africa, a newly created court. Let me pause. This is quite complicated, and if anybody doesn’t understand, you can let me know in the chat line. But the remarkable feature, and it really is a remarkable feature of the South African constitutional negotiations was, you’re faced with a problem that the one side says, “We want the Constitution now.” The other side says, “It can only be a democratically elected set representatives who should craft a constitution for a democratic society.” What do you do? You therefore have two constitutions. You allow an interim constitution to be drafted, and that constitution will essentially operate through the earlier periods of South African democracy after the first election, until such time as the dually elected representatives can pass a final constitution, which is authenticated by them. So those of you who’ve followed South African constitutional history would’ve known that we had a Republic of South Africa Constitution Act of 1993. And then two years, after the first Democratic elections, we passed the Republic of South Africa Constitution of 1996, which remains our constitution of today. So that was the process in which this occurred. So if I can back up and say we had a number of extraordinary events which occurred during this particular period, I shall only name two. One of course was the murder of Chris Hani, by this Polish person that come to South Africa, Janus, and some absolutely extraordinary right wing member of what was called the Conservative Party, which was to the right of the National Party.

And they conspired to kill Chris Hani. Who was Chris Hani? Chris Hani was the leader of the Communist Party, but he was a very remarkable South African and anyone who knew him knew that he was a very gifted leader of roughly the same age as Thabo Mbeki at the time. And that would’ve been a man in his late 40s, early 50s. When he was killed by these white assassins, and I raise the race question, you can well understand why it would’ve been that there was enormous tension in the air at that particular point. And South Africa was looking down the barrel of a race war. I recall on a personal level, that myself and a man who’s one of our very leading senior council in South Africa today, Gilbert Marcus SC, we had both arrived in New York for various conferences, which we were attending. And as we got into the New York cabbie, who had his radio on, there was a report that Chris Hani had been murdered. And you can just imagine that sense which we had as politically aware South Africans of what the consequences of that were going to be. Remarkably, De Klerk showed quite considerable leadership at that point by seeding the stage to Mandela, even though at that point in time De Klerk was still president of South Africa and was until ‘94. And he, that is De Klerk, seeded into Mandela, who played a remarkable statesmen like role in calming the fervour. And I remember him actually saying that the person who had actually reported the murderers and who had gone to the police was a white woman, indicating that this wasn’t just a racial divide, as such, but just a murderous attack by barbaric people. And the funeral, of course, was a very tenses affair. But we got through that.

There was also a situation where at that time, and you probably would’ve learned about this from Professor Bundy, there were of course these homelands which had been created a sort of “independent states” in which Black South Africans could rule themselves, conveniently leaving the vast majority of South Africa with most of its wealth to be controlled by white South Africans. And in one of these homelands called the Ciskei, there was a series of protests, led by the one and only Ronnie Kasrils, if you want to use a Yiddish word. He is one of . And he became a minister and of course has always taken a particularly populist view about a whole range of matters including Palestine, Israel. Ronnie Kasrils led a charge in the Ciskei. A whole lot of people were killed. And again, this had resulted in serious tension. But we got through that. The third, as we got closer to completing this interim constitution, there were very extreme right-wing groups who were also involved. In particular, there was a man called Eugene Terblanche, the Afrikaaner Resistance Movement. And I should tell you that he actually invaded the building where we were actually drafting the constitution called the World Trade Centre, literally smashed through the doors of it with an armoured car, and was running around trying to beat every everybody else. Him and his hoodlums. An unbelievably tense affair. But yet again, somehow control was restored and we continued negotiating. The other point, I should tell you in the interim, and probably Professor Bundy has spoken about this too, was the conduct of Chief Buthelezi, who just died recently and whose party, the Inkatha Freedom Party, was a sort of Zulu nationalist party.

And Buthelezi and the ANC were in absolute frenzied fighting between each side. Literally 1000’s of people died, both in the Gauteng, Johannesburg area and in the Natal area. And this also was a recipe for destabilisation. But somehow the leadership held firm and we continued drafting and we produced an interim constitution that was a constitution of 1994 in 1993. Essentially much of the text was very similar to that, which finally appears now in the Constitution, which has governed South Africa for the past 27 years, I should just highlight a few key areas. Of course, it included all of the standard civil political rights because one was going to have these rights if one was going to have a fair and free election. But it was interesting that the draught… We were divided into these committees, there was a committee which was basically drafting the Bill of Rights part. There was a committee that was drafting the rest of the Constitution. And the committee, which drafted this document which was supposed to be nothing more than a piece of legislation guaranteeing free elections, decided to go further than that and effectively draught a Bill of Rights. And so by the end of that constitutional experiment, as it were, we had got a constitution, which included what you called social and economic rights, rights in which the state have certain obligations to provide basic services and goods for South Africans. I will come back to that in a moment, if I may. And what would occur was we sat there for literally all hours of the night, passing the various laws, the Constitution at large, the Bill of Rights in particular, and the Electoral Act, which governed that first election. And by 1993, we had passed that. Comes the first election in 1994.

And I’m going through this fairly quickly because otherwise it’ll be here for days. Comes the first election, remarkably not withstanding the earlier violence of Chief Buthelezi et al. the election went extremely, fairly and freely. There was one aspect that I’ll come to in a moment, but I’m sure many of you South Africans, who might well have still been in South Africa in 1994, do remember the remarkable day when we all, Black and white, and men and women, old and young, stood in queues, often in blazing sun, sharing water together and any other refreshments whilst we stood in the queues, slowly trying to get towards the poll so that we could vote for the first time in a democratic election. It was an extraordinary day. The interesting thing about the '94 election was the ANC garnered 62% of the vote. It may have been more, because there was a sort of sudden stopping of the counting of the vote. And then a few days later, an announcement to the final tally, which seemed to give the Inkatha Freedom Party, under Chief Buthelezi, probably more than otherwise would’ve been the case. I think Mandela realised in a statesmanlike way better to have Buthelezi in the tent with a larger percentage of the vote. That now meant we all went back to parliament. We were divided up, the experts were divided up into various groups. I was involved in the drafting of the federal structure, which is not particularly federal, but be that as it may, of the Constitution. And that gave rise to the 1996 Constitution, which I’ll come to in a tick. But by 1994, South Africa was now a constitutional democracy in the sense that it was now governed by this interim constitution. And very significantly that meant that we now had to create a new court. You might ask why did we need to create a new court?

Those of you who know a little bit about South African history, and you don’t have to for this purpose, but just for everybody’s elucidation, we had a court called the Supreme Court, well called the Appellate Division, now called the Supreme Court of Appeal, which was the highest court sitting in that wonderfully… Wonderful town of Bloemfontein, a place that I did actually sit as a judge. And I can tell you it really is, I mean, the most exciting single thing about Bloemfontein is the changing of the traffic lights. But be that as it may, that was the place where the Appellate Division sat. It was the highest court to the land. So you may ask, why was it that we didn’t actually use that court as the fulcrum, as the main court for dealing with the constitutional matters? And the simple answer to that, and some of this I will discuss, I think next week when I discuss with you the absolutely fascinating questions about the Truth and Reconciliation Commission, which is of course not just of South African import, but of international import in all manner of ways. But I won’t go further tonight. But the point about the story is that it was felt that the Appellate division was compromised under apartheid. After all, it was all white men, except for one white woman at a particular point in time, towards the very end, Ismail Mahomed, one of our greatest advocates, had been appointed to the court with the permission of Nelson Mandela. He took the position, but essentially it was a white male court. It looked not dissimilar to the photographs that Francis Gile showed about the White Parliament, where the one woman was Helen Suzman at the time.

So the question that then arose, do you want to put into the hands of this court, which to a large degree, some glorious exceptions to the country, and there were, there definitely were judges who were brave and judges who were principled. But in the main, if you looked at a court that had essentially supported the Apartheid government, had reinforced so many of the laws of the government by interpreting them in a manner which was supported of the government’s intention, rather than trying to soften their repressive character, the answer was, we have to have a new court. And so that meant that in 1994, when the new Constitution came into being, one of the key elements of it, which is now central to our liberations, and again, we could have a whole lecture on this and we’ll come back to it, we decided that we did not want to appoint judges any longer on the way which we inherited from England, where a Minister of Justice would literally tap you on the shoulder and then you become a judge. So if you were his friend, you became a judge. There were famous stories about that, which I’m not going to go into about how some people were appointed 'cause they were connected to the Minister of Justice in circumstances where there was no basis for them to be appointed. We wanted to have a different system. Looked around the world, we looked at places like Germany, et cetera. And we came up with this concept called the Judicial Service Commission. And the Judicial Service Commission was in effect a group chaired by the Chief Justice in which there would be parliamentary representation, actually dependent on how many seats you had in Parliament.

It would also have a professor of law. It would’ve members of the legal profession, both from the bar and the sidebar, and four representatives who were appointed by the president. And of course when Mr. Mandela was the president, he appointed some exceptional people, I think in particular of George Bezos, a very famous South African council who I mentioned the other day. And John Ernstzen, a very distinguished and wonderful trade unionist, who essentially brought different perspectives to the Judicial Service Commission. I myself was interviewed when I were appointed in 1998 as a judge by that very body. And they then held hearings and out of those, the first constitutional court emerged. It was to be presided over by Arthur Chaskalson, was one of our greatest advocates and a very fine lawyer. I should tell you, just coincidentally, for those of you who might have known Arthur, his son Matthew, who’s a senior counsel at the Johannesburg Bar and is one of our most outstanding barristers, advocates, today was appointed as an acting judge of the constitutional court for two terms. I’m sure his late father would’ve been very proud of that. In addition, there were four judges, sitting judges who were appointed, perhaps the most eminent for our purposes being Justice Richard Goldstone and Justice Ismail Mahomed. And then what occurred where there were hearings for the balance of the six member, hearings before the Judicial Service Commission, and the first court was then essentially created, and that was the court that then determined whether the final constitution met those principles to which I referred. And so we then got a constitution, which had certain highlights. It didn’t have a very strong federal system.

There’s no question about that. We have nine provinces, we have premiers at the provinces, but they don’t have very strong powers. We gave far too much power to the president because we adopted the view at the time, an extraordinary view if we think about it, that Mr. Mandela would do no wrong. Maybe that wasn’t so extraordinary at the time, but it meant that all sorts of appointments were made by the president, which came back to haunt us when Jacob Zuma became the president of South Africa. We had various, what you call chapter nine, we call chapter nine institutions, institutions which are guardrails to protect constitutional democracy. In particular an office of the ombit, which we call the Public Protector, to look at public administration and its weaknesses. I should tell you, we had a very fine public protector before Mr Zuma got into power. And thereafter we had somebody who mercifully has now been removed from office for utter incompetence. And more than that. All of that was problematic. We had a commission on human rights, which has not done the greatest amount of work either, but there it is. In relation to the Bill of Rights, we had all the civil liberties that you’re speaking about. What was particularly important was we had a clause in there which allowed for restitution. It’s probably improperly called an affirmative action clause. Because what it really meant was that accounts could be taken, particularly of race, in relation to ensuring equality in the society. In other words, taking account of historical disadvantage in order, as it were, to redress the past. It had a series of cultural rights, entrenching culture, it had labour rights, which means it entrenches the right to strike and to bargain collectively. It included socioeconomic rights, in other words, that the government, the state was obliged to provide housing, education, water, and medical care to the extent that resources were available to do so.

All of that was there in the Constitution. In short, we passed what was called, I think a social democratic constitution. Under Mr. Mandela, there’s no question that the government, to a large degree, abided by that. Two examples. One, very early on the national government found itself the receiving end of the judgement of the constitutional court, which basically found in favour of a province, I think Western Cape and against the national government. Mr. Mandela went on to television and radio, to say he disagreed profoundly with the judgement of the court, but we were now in a constitutional state and he would abide by it because that’s what we had to do. It was a very single and important statement. The second was, for those of you who know about rugby, there was an inquiry into rugby in South Africa set up by the president. Why? Because they were all sorts of problems with a man called Louis Luyt, who had been an Afrikaner businessman who had been involved in the setting up of a newspaper called the Citizen in cahoots with the National Party, et cetera. Leaving aside, Mr. Luyt decided that he was going to challenge the decision of the president to have a commission of inquiry. When the matter went before a very right-wing judge, a judge who had opposed the admission of Black counsel to the Pretoria Bar. Mr. Luyt’s counsel demanded that President Mandela give oral evidence in court to explain his decision. There were all sorts of arguments as to why Mr. Mandela did not have to do that. He insisted in going into the box and he was examined and cross-examined accordingly.

An utterly remarkable event, which vindicated constitutional democracy. And to a large degree, at that particular time, one felt confident of a constitutional court, which is about as good as you could have got anywhere in the world. There was some unbelievably important decisions, some fine judges, all of which probably deserve a significant discussion all on their own. But in an overview lecture like this, that’s probably a little unwise. But the simple proposition was that the court, I’ll give you one example of where I thought the court was quite remarkable. There was a case, just this sort of explains this time. There was a case that was brought by the widow of Steve Biko, who I mentioned in my last lecture. He was of course, this leading Black political figure who had been murdered by the security police in his late 20s. When the Truth and Reconciliation Commission was constituted, there was a sense that if you came before commission and you could show that your crimes were politically motivated, you could get amnesty from prosecution. And so Mrs. Biko and a a number of others, challenged this issue before the constitutional court and to argue that under international law and under even our constitution, it wasn’t in fact proper to give amnesty to people with committed crimes of such a heinous nature. The matter went before the Constitutional court of South Africa. Those judges would’ve known about all of that brutality. Some of them would’ve been involved as counsel, particularly Arthur Chaskalson, Ismail Mahomed and Pius Langa in cases involving security police brutality against opposition politicians. And it would’ve been absolutely heart wrenching for them to have to engage with the rather persuasive arguments brought on behalf of Mrs. Biko and others and AZAPO.

And the answer was that they held firm and said quite frankly that this particular form of truth and reconciliation commission, the granting of amnesty was crucial to a peaceful transition. Because if we’d gone for criminal prosecutions, the old regime still had enough firepower to cause mayhem and that would not have got us into a peaceful democratic solution. And so what I’m suggesting is that was the high point of constitutional democracy in South Africa. As time is moving on rapidly, and I see there are quite a few questions, let me say that the text itself has been a remarkable success. Perhaps I should just allude to one clause, which is very interesting and that is the property clause. Recall that I said to you earlier that in relation to the National Party, they wanted a property clause to be included, 'cause they were worried that the ANC government would expropriate property without compensation. And so there was a massive debate, which took place before the final constitution was agreed upon, as to the manner in which the property clause should be drafted. I should tell you that there are a number of countries that have no property clause, including, for example, Canada in its Bill of Rights. But let’s leave that aside for the moment. The formulation at the end of the day protected private property, but it did allow the government to, as it were, expropriate property and for reasonable compensation. And the formulation was clearly not designed to ensure that each and every case market value compensation would be provided.

It is a particularly significant clause for this reason, because, and it leads me in a segue into what’s happened. The Constitution has come under very significant criticism by those who feel that the government has not delivered on its promises. And one of the arguments for the changing of the Constitution, or indeed more radically for the jettisoning of the South African constitution is the fact that we have property clause. If you look all sorts of land reform, which may well not have given rise to compensation of market value of the property and the government has just been unbelievably inept in doing anything about land reform. And so somehow the Constitution is blamed for that which is not its fault, rather government inaction is its fault, but there lies the problem. So now when we look at this, in the cold light of day, having given you a sort of 40 minute, discussion of the history, where are we today? Well, I think we’re in three or four places which are problematic. In the first place, certainly from the end of the Thabo Mbeki era, he was the second president in South Africa. In the beginning of Jacob Zuma period, a number of things happened. I indicated to you that all sorts of key positions, such as, for example, the Commission of Inland Revenue, the National Director of Public prosecutions, to take by two examples, were in the province of the President. And whilst Mandela was alive, of course you could be sure that he would’ve tried to ensure competence in these positions. Not so with Zuma. What he wanted was his own lackeys. And all of a sudden we woke up to the prospect of a range of key institutions, which were designed to perpetuate constitutional democracy being completely eviscerated by what we call state capture. That is they were captured by a bunch of crooks and rent seekers who merely with intent on enriching themselves at the great expense of 60 million South Africans, most of whom are poor, and most of which money could have gone to ensure far better lives for all.

That has been the first problem. The second problem has unquestionably been, this is in no order of magnitude, the judicial service commission, the appointment of judges. Some of you who are aware of the South African scene will know that just within a short little while ago, probably our most distinguished juror sitting on the bench in South Africa today, Mr. Justice David Unterhalter, was not appointed yet again, this time to the Supreme Court of Appeal. It is an almost incomprehensible decision which one can’t understand and it weakens the judiciary in a very sad way. And why that is is because the Judicial service commission, which appoints judges, is dominated today not by the sort of George Bezos’s and Johnny Aronson of this world, but by politicians and very much influenced by the leader of the Economic Freedom Front, Julius Malema, who doubtless has been mentioned before in lectures. So the result of which is we are not getting the judges Black, white, women or men, that we actually should be getting in order to strengthen the judiciary. And that creates a second problem in relation to the judiciary. The third problem, which I wanted to allude to, and I think this is a broader problem which we’ve spoken about on these lectures before, and those of you who live in America and other parts of the world where constitutional democracy is under attack will of course know that one of the difficulties is can you have a viable constitutional democracy, an island thereof, in a sea of poverty and inequality?

Of course in The States it’s less about poverty and much more about inequality. With us, the poverty is grinding and it’s widespread. And the problem has been that the non-delivery by government of all those socioeconomic rights to which I made mention, the fact that there is a complete lack of housing, the fact that millions of children go to bed every night starving, for example, has created a condition for populism, populated to a large degree by the Economic Freedom Fighters to some considerably extent, but other populists who argue that the constitution is a western document, which is alien to African traditions and should be completely repealed. How strong are they? I would say that the populists, the sort of intellectual populists which you crop up all the time, including within the legal community, not so. The Economic Freedom Fighters, definitely so. And you have to worry therefore for the future of constitutional democracy if an ANC/EFF coalition takes place after the 2024 election, because then I’m not entirely sure whether the resolute commitment to constitutionalism, which has been exhibited over the last couple of decades will continue.

And that’s the real problem. That’s where, so in a sense, the story ends for me, or should I say my story in so far as this lecture is concerned, ends with those questions. Questions about the relationship between politics and constitutionalism, EFF/ANC, the ability to develop economic policy, which ensures that people do not starve and therefore do not see the Constitution as some document that is absolutely no relevance to their lives. And then our ability, which has certainly been resurrected to an extent, under President Ramaphosa, with regard to institutions such as the National prosecuting authority and the commission of Inland Revenue, but in which certainly when it comes to things like the Judicial Service Commission, the jury is still out in relation there too. I suppose the point that Mr. Mandela wrote his book, “Long Walk to Freedom”, I don’t think constitutional democracy is a short walk. My, dear friend, one of the greatest I think academic lawyers, South Africa produced professor who tragically died prematurely, once said that the South African constitution readily represented a bridge from racist authoritarianism to democratic accountability and justification. And I think the gap between, as it were, length which that bridges, that we haven’t completed that and it’s still in doubt as to whether we will, and I’ll leave it there and answer the questions. I can just get my glasses on.

Q&A and Comments:

Q: Michael, what does the speaker say about reverse discrimination?

A: I think what you mean by that is I said, forms of affirmative action, Michael, which of course has been controversial. I think that in some instances it’s been absolutely essential. It’s been essential that if you’ve got competent people, race has to be a factor that has taken into account an important one and gender could not have continued as we were. I think when it’s come to things like Black economic empowerment, vitally important that in fact Black South Africans have a fair crack at the economic whip. But I think what has happened there has been the use of it to enrich some at the expense of many. And I also think, and I can show you that I’ve been in a number of difficult cases dealing with these issues of race preferences. They very tricky and I suppose they always would’ve been in the South African context. We haven’t got it perfectly, no. Let me just, sorry, I suddenly slipped down.

Q: Monty, “Is the South African constitution taught in schools and university?”

A: We teach it in universities, Monty. It’s a great question. Far too little in schools, far too little in relation to the media. I myself am in the unusual position as a retired judge of actually having a programme called Judge for Yourself on national television, which tries to deal with constitutional issues, but in fact it’s a very fine… The American kids know much more about their constitution than ours does.

“That’s interesting that my mother was Chris Hani’s secretary at the time of his tragic assassination.” Wow, it’s amazing who one meets on lockdown. And of course it was absolutely tragic and he was somebody who certainly was not a rent seeker, who was certainly somebody who had real principle. You could agree or disagree about his politics. But it seemed to me, from everything I knew about him, that he was a principle non-racial person. And just like Steve Biko, South Africa suffered greatly from his murder.

Ian? Yes, the Bill of Rights was based to some extent on the Canadian Charter. You’re dead right, not entirely. The Bill of Rights took the structure of the Canadian… Of rights and limitation where government could justify why your rights would be limited. We were also influenced to some extent by the Germans and by the European conventional human rights to a less extent from the Americans. Americans for example, were much more influential I suppose, when it came to this issue I’ve just spoken about with regard to race issues because we were worried about, the Bakkie Case, which we regarded then as a problem. Little did we know what was going to happen. We had to deal with that. But in the main you’re dead right, Canadian jurisprudence was massively important. And if you look at the earlier cases of the constitutional court, you’ll find them replete with references to Canadian cases. Jeremy. “In 1994, owned a business and employed an African secretary. She went to South African embassy to vote and joined a queue, she would not vote for Mandela, but knew he would win.” It was amazing time, whether they voted for Mandela or not. It was an amazing time. And unfortunately it was the time of the election, it was the time of the World Cup. We were so re replete with hope at that particular point in time, that in a way when I look at South Africa today, it really is, I mean, I don’t mean to be depressed given what I said at the beginning about Israel. But South Africa has been a continuing source of depression for me, precisely because we’ve come off those highs in such a dramatic way.

Yes, you’re right, Monty. Bram Fischer had a very strong connection to Bloemfontein, one of the redeeming features of Bloemfontein. That’s where he came from, from the Freestate, dead right.

Q: “What went wrong?” says Barry, “is there any hope for the future?”

A: The solution, Barry? I think twofold, and I don’t really want to get into this as a retired judge, but I do think we probably need a reconfiguration of the politics South Africa in general. I do think that non-governmental institutions, civil society, which played a very important role during the apartheid era, need to resurrect themselves to some extent they did in getting rid of Jacob Zuma. What went wrong was to a large degree a government that I’m not sure, despite the fact that it was essential to the drafting of the Constitution. As I say, the Andre Odendaal book shows that. I’m not sure that all of them where as committed to constitutional enterprises as there should have been. And that went wrong too. And then I think the absolute failure, through government and through more, probably admittedly the legacy of apartheid was heavy here. But we have failed to develop an economic policy, which is why decent standard of living for probably 45 million in South Africans. And that’s what went wrong, in my view. But we can actually have a whole discussion on that and perhaps we should. It was Richard Goldstone wrote the report on Israel. I’m not going to say more. Yes, but he was in South African context, a very distinguished judge.

David says, “I can remember London in the high commission of persons who had been held in solitary confinement under apartheid, the supervising the electoral rules. What position? Albie Sachs a former pupil of your father. That’s very interesting. Albie became a judge on the constitutional court. He was on the first constitutional court of South Africa, elected in 1994 and served with great distinction for 12 years as the judge of that court. David says, "The victims have written over Russia on the Truth Commission.” I’m going to talk about that on Sunday night, David, and I agree with you entirely, but I won’t say more.

Q: Jill says, “Could you please comment on conflicts between the ConCourt and legislative and executive branches of the government?

A: It, well, it’s a problem for all kinds of constitutional democracies, Jill, the concept of separation of powers. I think where in South Africa it’s created significant problems is that because of the failure of the government to deliver both in relation to social goods, very often to make shocking appointments in particular positions, sometimes in relation to things like the election, a whole range of issues which traditionally would’ve been dealt with by the legislature, but which is, as Judge Zondo said in his report, has utterly failed to hold the executive accountable only the judiciary has. And yes, it has caused tensions in the past, but in the main, I’ll say this, the judiciary has done rather well in holding them accountable. But it’s a great problem because the, as Judge Zondo says, "We need to rethink the idea…” He’s the chief justice of South Africa today, by the way.

“We need to rethink the role of the legislature” and there’s still a debate in South Africa how our elections should be conducted. The proportional representation system we have at present is probably inappropriate in change, but not satisfactorily so. We need to think these things through, because the legislature doesn’t do its job. The judiciary therefore has to do more of the heavy lifting. And that’s a problem asks, it’s a provocative question, but I’ll read, Your description of the current appointment problem is applicable to both South Africa and Israel is a natural outcome when the inmates are put in charge of the asylum. Well, I’m uncertainly on record in relation to both of those, that can’t help but agree with you. But at this particular point, I don’t want to say more.

Thank you very much, Rita. Thank you, Josie.

You say “Re: second generation rights.” I suggested they should have been aspirational. The circumstances insurmountable challenge of urban homelessness and landless into politicians making hopeless promises. I never met a squatter who said, “When does the government bring houses?” They said, “Show me the place, I’ll build my house.” The highest priority, clean water in and dirty water and rubbish out, still not achieved. I myself was in favour of what you call directions of state policy, which would mean that they were aspirational goals. I was persuaded that the socioeconomic rights could have a role in prodding the government. I think the court has not been as good on this as it should have been. I think could have been better. But you’re dead right, all in all, I think people probably have… Poor people have the reaction that you do. And I don’t think that does the Constitution any favours.

Q: Josie says, “Civics was a compulsory course. The current situation makes me wonder, as with holocaust education, what is wrong with education?”

A: Well, I think that’s right. And I mean, of course we don’t need to talk more about the Holocaust education. The profound levels of anti-Semitism, which now seem to exhibit themselves in virulent forms at this moment, are truly disturbing. And I think in South Africa, they have failed to the kind of constitutional education that people already need.

Brian says, “I was in the committee before the Constitution was formed, considering religious rights, which we needed.” We need needed a body which was acceptable. Good point. The white population is decreasing and it is ageing in the sense that it’s smaller than it was before. And that’s probably about 9% of the population. BEE, Joanna, Black Economic Empowerment, broadly means that in relation to procurement of all kinds of government contracts, you have to have a certain level of shareholding in your company of Black shareholders. I’m simplifying enormously. And the whole idea was to empower Blacks the whole shares in companies. The problem has been, and I can say this as a competition lawyer who’s had to deal with this under the competition sphere that it has meant that certain people have being granted shares who are Black, but who have become very wealthy. And the vast majority have absolutely had absolutely no share. So it hasn’t really worked.

Reva says, “Not only South Africa failed in terms of equitable economic outcomes, according to Mackenzie or Western countries, as the differential shows between the haves and have not, have grown exponentially.” Indeed that’s true, Reva, but the problem in South Africa, we started off on an absolutely shocking base. It’s also true… Two statistics that are interesting. One is that we remain probably the highest Gini coefficient in the world, making us the most unequal society in the world, which is really a problem when, particularly that is overlaid in terms of race, Black people in the main being poor. Yet paradoxically, when you look at income inequality, it now appears that intra Black inequality, inequality in Black people, is greater than inequality between Black and white people. Which is a fascinating figure and says a lot about the effect of Black economic empowerment.

I’m sorry, Myrna, that you were depressingly overwhelmed. I’m depressingly overwhelmed every day of my life.

“Professors Kahn and”, David says, “And Simons specialise in the constitutional framework for New South Africa.” You’re dead right, both of them were very important. Jack Simons essentially in dealing with really what I suppose you call today, vernacular law, customary law. Dennis Cowen was one of those people who was very important in the formulation of legal arguments to prevent the coloured vote from actually taking place. That means when the National party sought to disenfranchise coloured voters, he was rather important in that regard.

That seems to be the end of the questions. Thank you very much to everybody for your really insightful questions. I do apologise to have compressed this all into one hour, but at least you’ve got a helicopter view of how we got our constitution and what our problems are. Goodnight to everybody.