Speech by Advocate Mark Oppenheimer to the FW de Klerk Foundation Annual Conference Webinar, 2 February 2021

THE ROLE OF THE JUDICIARY IN PROTECTING OUR CONSTITUTIONAL ORDER

INTRODUCTION

Former President De Klerk, Professors Madonsela and Venter, friends, and colleagues, it is an honour to address you today. Jacques has asked me to talk about the role of the judiciary in protecting our constitutional order. I am going to use this as a framework to discuss three topics.

The first is the pandemic and the lockdown regulations which have infringed on our rights. The second is the threat of expropriation without compensation. The third is the re-racialization of South Africa and our failure to embrace the value of non-racialism in section one of our Constitution.

LOCKDOWN REGULATIONS

The pandemic has posed an enormous challenge to countries all around the world, governments have resorted to extremely strict lockdown measures to save citizens and to protect the healthcare system. All of you will remember President Ramaphosa’s address in March last year, claiming that government would need a three-week lockdown to prepare the healthcare system to save lives. Well, it has been over 300 days, many lives have been lost and many businesses have been shattered. The question is, has there been overreach in some of the regulations that have been put forward?

Well, undoubtedly, many of them were entirely arbitrary, capricious, and served only to enhance the power of the state to the detriment of citizens. When we look back on some of the more obscene regulations this is quite evident.

First, you will remember that there was a ban on business except for essential services. The idea was that this was a way of reducing contact between citizens. Now, of course, one of the things that would be very useful to keep businesses alive, would be allowing people to trade online, but government found it fit to ban this too. All stores that were trading online that were not selling essential services were forbidden from engaging in commerce. Thankfully, civil society pushed back against this and the ban was dropped.

There was also a ban on exercise, people were only allowed to leave their homes for three hours and the types of exercise they were allowed to do was restricted to walking, cycling and jogging. If you wanted to surf or do yoga, you could not do it outside. Through civil society action government retreated on this front.

One of the more horrifying government measures was that anyone who tested positive for COVID could be forcibly quarantined by the state. A case was run in which people were quarantined under horrendous conditions and that quarantine centre was shut down. Through further litigation efforts, government withdrew the regulation which would have allowed it to quarantine people against their will.

The impact on fundamental rights and liberties has been extreme. There have been restrictions on where people were allowed to work, travel, pray, and educate their children.

Some of these measures may have had a rational connection to the notion of protecting lives and the healthcare system, but many of them have been an overreach. The original approach from our courts was to see if one could draw a straight line between the measure taken and the purpose of the measure. The initial approach taken by our courts was extraordinarily deferential. The idea was to trust government, no matter how extreme measures were.

One of the first cases that was brought to challenge the regulations was by a group of religious Muslims, who argued that they had a fundamental religious right to worship together, the courts found that this right could be overridden, on the basis that government claimed that there was a rational connection between limiting public gatherings and protecting lives.

The problem with the low threshold of rationality is that all it requires is for a story to be told between restricting a right or severely limiting it and being able to achieve this noble purpose of saving lives. Government relied on this method to restrict a series of our ordinary rights and liberties.

One of the most notorious measures taken was the ban on cigarettes. The claim was that smokers were more likely to wind up in hospital if they contracted COVID, and therefore, it was rational to ban cigarettes to provide more access to hospital beds for other citizens. The problem with this claim is that while it may be the case that lifelong smokers are more likely to wind up in a hospital bed if they get COVID, it is not clear at all that a multi-month-long restriction on cigarettes would have any effect. It really is the lifelong use of smoking as opposed to a temporary cessation of smoking that makes the difference.

In the British American Tobacco case, the courts considered the question and ultimately held that what must be done is to engage in a balancing exercise. It is not enough to make the claim that there is a rational connection between the goal that you have which may be a noble goal, and the measure that is taken. The rights themselves must be protected. The court relied on section 36 of our Constitution. This limitations clause states that any right in the Bill of Rights can be limited by a law of general application, provided that it is reasonable and justifiable to do so in an open and democratic country, and that the limitations are themselves proportional.

One must consider the importance of the nature of the right, the importance of the purpose of the limitation, whether there is a rational connection between these things, and of course, whether alternative measures could be taken that are less restrictive of the right.

In this case, a number of rights were at play, the right to dignity, the right for people to make choices about their own body, the right to freedom of trade; so that those that in the cigarette business could continue to operate, and the right to privacy that lets people be free to do what they want in their own homes without government restrictions.

The economic consequences were quite severe for those in the cigarette industry. Many farmers had to shut their operations down, which had a knock-on effect for their labourers, who are among some of the most poor and vulnerable members of our society. The court ultimately found that the ban was disproportionate, and that government was not free to make any restriction that it wanted on our rights, merely because it had a noble purpose in mind.

I am not a smoker, and I am sure many of you are not either, but the importance of this case is in providing a framework for evaluation. The pandemic looks like it is going to persist much longer than any of us would like, and government will continue to produce regulations which will intrude upon our basic liberties. The case sends a signal to government that it cannot do what it likes, and civil society can make use of it to challenge any other regulations that are disproportionate and irrational.

We must also remember that government could have declared a state of emergency instead of a state of disaster. Under a state of emergency, the state would have had the power to have derogated from many of the rights in the Bill of Rights. But there also would have been parliamentary oversight. You cannot keep up a state of emergency indefinitely. Government has acted as if the state of disaster allows it to set aside all the rights in the Bill of Rights without any parliamentary oversight - indefinitely. We should be deeply troubled by this.

There is a challenge to the Disaster Management Act on the grounds that it does not provide for parliamentary oversight. The executive should not be able to make decisions by decree without any proper checks and balances. While the legislature is not meeting its obligations, it is open to the courts to play that role of upholding our Constitution.

EXPROPRIATION WITHOUT COMPENSATION

The threat of expropriation, without compensation has been hanging over our heads like a sword of Damocles for several years now. Like government efforts to address the pandemic, the move to change our Constitution to allow for expropriation without compensation purports to be done for good purposes. The claim is that the wrongs of the past can only be addressed by altering our Bill of Rights. It is important that we remedy the wrongs of the past, but we also need to acknowledge what has already been done.

From 1995 to 2014 1.8 million individuals received compensation either in the form of land or money as part of the land claims process, 95% of the claims that were instituted during this period have been resolved. Another striking factor is that when given the choice, most individuals chose the money as opposed to the land. There is a particularly good reason for this; money translates into freedom. Money provides people with choices. It lets them pay off their debts, start a new business, or acquire a piece of land in an area of their choosing.

Government has also spread the idea that there is a burning hunger for land, that it is a top priority issue for many South Africans. However, the Institute for Race Relations survey, finds that South Africans are much more concerned about crime and education than land reform, only a few percent of people are interested in the topic at all.

Furthermore, we know that there are dramatic consequences to implementing a policy of expropriation without compensation. If we look at Venezuela, and Zimbabwe, we see that stripping people of their property rights does not just harm those who own the property, it harms everyone. Both of those countries have had some of the world's worst cases of hyperinflation, and people were driven into poverty, unemployment and despair.

One of the mistakes being made is the notion that South Africa is an exceptional country, that terrible ideas that have been tried in other places will work here without consequence. This is, of course, erroneous.

While many of us agree that it is a disastrous policy; the question is, what can our courts do to protect us from it? The Constitution has not yet been changed, but there is a call to amend it. And what that call does, is allow not only for land to be confiscated, but also for the improvements upon the land to be confiscated without any compensation. This will include residential homes, businesses, farming, infrastructure, crops, you name it. It would be quite far reaching.

The question is, what can be done? Is there any challenge that could be brought? To my mind, there are a couple of options. The first is procedural, there was a large public participation process, South Africans were asked to answer a very narrow question, which is, do you support expropriation of land without compensation, and many individuals and civil society organisations wrote in and expressed their disdain for the idea? In fact, two thirds of people thought it would be a terrible idea. But the point is that they were asked the narrow question only relating to land not to improvements there on and therefore the proposed change goes beyond this mandate.

Another way of thinking about the problem is that there are certain kinds of amendments to the Constitution, that are not amendments at all, but that they fundamentally alter its basic structure. There are certain things that must be in our Constitution, and once you take them out, we no longer have a Constitution at all.

Before our constitution was put in place, there were a series of constitutional principles which the Constitution had to comply with. In the certification judgments, the Constitutional Court initially refused to certify a version of the Constitution on the basis that it did not comply.

The argument is that the right of property is a fundamental right and that if the state confiscates your property, it is a part of natural justice that you receive compensation. If this right were removed, which of course, would be out of accordance with international law, it would also be at odds with the basic structure of our Constitution.

There are two sections of the Constitution that support this notion. The first is in section one, which states that South Africa is a nation founded upon the rule of law. There is case law which holds that the rule of law encompasses fundamental human rights.

The second is, section 36 of the Constitution, the limitations clause. The idea is that any law which would limit the rights in the Bill of Rights must go through a justification process. In international law and in countries all around the world, the consequence of confiscating someone's property is that they are paid compensation, and it must be prompt and adequate. At the moment, the test in our law is just and equitable.

To remove the requirements of just and equitable compensation, would be a violation of the protections in Section 36, since this would not be the kind of limitation that can be put in place in an open and democratic country. Even if the constitution would change through the requisite number of votes, either two thirds because it would be a change to the Bill of Rights, or the heftier amount of 75%, because there will be a change to section one of our constitution by eroding the rule of law, that even then the numbers would not be sufficient, because there's something fundamental baked into our Constitution.

There is good reason for government not to persist in its quest to change the constitution. The pandemic and the subsequent lockdowns have wrought havoc on our economy, and now would be one of the worst times to change one of the most fundamental rights in our Bill of Rights.

If we find ourselves in the precarious situation where government succeeds in changing the Constitution, all is not lost. It will be incumbent upon civil society to take the matter to court and to fight to protect property rights and our Constitution. Judges will have to play an important role in this matter. And some of the arguments that I have given to you today may be important tools in the judgments they deliver to protect our Constitution.

NON-RACIALISM

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. - Marin Luther King Jr

The principle of non-racialism permeates the Freedom Charter: “South Africa belongs to all who live in it, black and white. The rights of the people shall be the same, regardless of race. All laws which discriminate on grounds of race, colour and belief shall be repealed. Restriction of land ownership on a racial basis shall be ended.”

In 1991 the ANC produced a document entitled Constitutional Principles for a Democratic South Africa, which proclaimed that: “A non-racial South Africa means a South Africa in which all the artificial barriers and assumptions which kept people apart and maintained domination, are removed. In its negative sense, non-racial means the elimination of all colour bars. In positive terms it means the affirmation of equal rights for all. It presupposes a South Africa in which every individual has an equal chance, irrespective of his or her birth or colour. It recognises the worth of each individual.”

The value of non-racialism was finally legally crystallised in the first section of our Constitution: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: Human dignity, the achievement of equality and the advancement of human rights and freedoms. Non-racialism and non-sexism.”

Constitutional Court jurisprudence has the following to say about non-racialism: “The long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity.”

“No members of a racial group should be made to feel that they do not deserve equal "concern, respect and consideration" and that the law is likely to be used against them more harshly than others belonging to other race groups.”

“To achieve the magnificent breadth of the Constitution’s promise of full equality and freedom from disadvantage, we must foresee a time when we can look beyond race.”

THREATS TO NON-RACIALISM

In the past few years, the value of non-racialism has come under attack. Race has become the lens through which all of South Africa’s woes are viewed. Redress program have emphasized race over genuine disadvantage, which has led to the poor and vulnerable being sidelined, while the wealthy and connected are prioritized. The obsession with race has led to a range of perverse outcomes. The following cases are merely examples of a wider problem.

Legal Practice Counsel Election

Advocate Ncumisa Thoko Mayosi ran for elected office to represent all legal practioners in the Western Cape. After receiving the fourth highest tally of votes in an election that provided for four seats for advocates, she was disallowed from taking up her position. The sole reason for her disqualification, was that she had been classified by the Legal Practice Counsel (“LPC”) as a “Black” woman. If this election and classification by a state body had happened before 1994 it would be considered a horror of the past, but unsurprising. The fact that it happened last year is an injustice beyond the pale.

The election results were required to follow a rigid race quota, so that there was exactly 1 “White” male, 1 “White” female, 1 “Black” male and 1 “Black” female among the advocates.

Candidates in the election were not required to list their race, which means the LPC engaged in a racial classification process of its own. It is unknown what methods were used to determine the race of the participants, since no current legislation determines how South Africans are to be classified by race. Did officials surmise their race by looking at images of candidates alongside a pantone sheet of colours from light to dark? Was an assessment based on the person’s name?

These questions deserve answers, but it is apparent that participants were burdened and benefited based on their race as determined by some unknown standard and by some unknown process. The Cape Bar brought a challenge to the legality of the election but their application was dismissed.

Department of labour

Beyers Chocolates employs over 400 people and most of their workers are “Black” women. The dept of labour threated to take the company to the Labour Court because it believes only 36.2% of Gauteng residents are “Black” women, which that some of them should be removed to correct their overrepresentation in the business.

Land Allocation Policy

Government has put forward a policy to determine who will qualify as a beneficiary for farmland allocated by the State. The policy defines previously disadvantaged citizens in terms of race as opposed to neutral factors like economic means. The effect is to exclude millions of citizens from receiving benefits because of their race.

Race-Based Covid-19 Relief

Government created financial assistance programs for small and medium sized businesses and for business in the tourism sector that would be negatively affected by Covid-19. One of the deciding factors for receiving relief would be the racial makeup of the businesses. AfriForum and Solidarity challenged the race-based nature of the tourism fund, and the DA brought a challenge to the SMME fund. In both cases the courts held that the use of racial preferencing was lawful. In the Solidarity case, the court explicitly jettisoned the value of non-racialism when it held that “a race neutral response can have the effect of deepening the fault lines in our society.”

In the DA case the court held that: