Does the Constitution really require "radical transformation"?
In his announcement on television at the end of last month that the Constitution would be amended to allow for expropriation of land without compensation, Cyril Ramaphosa claimed that the Constitution "is a mandate for radical transformation both of society and the economy".
This is a claim by a politician and it has no legal impact. Of much greater legal import is what the Constitutional Court has had to say on the matter of "transformation". The issue is of vital importance given the link that Mr Ramaphosa – and many others – have drawn between expropriation and the Constitution's "mandate" for transformation.
In the AgriSA case dealing with the expropriation by the state of a mineral right, the court held that "an overly liberal interpretation" of constitutional provisions regarding property rights "could undermine the constitutional imperative to transform our economy". The judgement, handed down in 2013, was written by the chief justice, Mogoeng Mogoeng.
The following year, Dikgang Moseneke, as acting chief justice, said of the Constitution that "plainly, it has a transformative mission". This was when the court found against Renate Barnard in her claim that the South African Police Service had been guilty of unfair racial discrimination when it failed to promote her.
Two years after that, in 2016, Justice Mogoeng said in the case of Tshwane v Afriforum that "through the preamble and the entire Constitution we imposed on ourselves the duty to transform". As a result, Afriforum lost its bid to retain various street names in Pretoria. In a separate judgement, concurring with the main one, Chris Jafta held that "an unquestionably transformative Constitution" could not be expected "to recognise cultural traditions rooted in the racist past".
In 2017, in another case brought by Afriforum (along with the Solidarity trade union), the chief justice referred to "a constitutionally-inspired transformational agenda". This, he said, was the reason why the University of the Free State was entitled to phase out Afrikaans as a medium of instruction. Justice Mogoeng also cited an earlier decision in which the court had held that the Constitution "ardently demands...a radical transformation of society as a whole and of public education in particular".
Accordingly, the Constitutional Court is clearly of the opinion that "transformation" is a constitutional "imperative" that must be "ardently" pursued. The "transformative mission" also has a very wide ambit: it stretches from property rights to the economy to employment rights to cultural rights to language rights to public education and to "society as a whole".
The Constitution itself, however, says none of this. The word "transformation" does not appear, still less is transformation declared to be an "imperative" requiring "ardent" pursuit.
The Constitution does, however, guarantee the right to equality and various other rights incorporated in the bill of rights (Chapter 2). It licenses derogations from the right to equality in the name of promoting disadvantaged persons. It speaks of "healing the divisions of the past" and of promoting equality. It also contains clauses specifying when the rights enshrined in the bill of rights may be limited (Section 36). In addition, it specifies (Section 39) how courts should interpret these rights.
But "transformation" is not one of the "factors" listed in section 36 according to which rights may be limited. The courts are told in section 39 that in interpreting the bill of rights they "must promote the values that underlie an open and democratic society based on human dignity, equality, and freedom". They "must" consider international law and "may" consider foreign law. Nowhere are they told that they "must" consider "transformation imperatives", or even that they "may" do so.
In repeatedly claiming that the Constitution contains a transformation imperative, the Constitutional Court is putting words into the mouth of that document. This is ominous.
If property rights, which the Constitution entrenches, can be attenuated on the grounds that "overly liberal" interpretations "undermine transformation", then the contrived transformation imperative could be used to override other rights as well.
Whereas the Constitution proclaims itself to be the "supreme law of the Republic", the Constitutional Court seems to be saying that the "transformation imperative" as adopted and interpreted by itself from time to time is an even higher law. This undermines legal certainty. It also undermines the rule of law.
* John Kane-Berman is a policy fellow at the IRR, a think-tank that promotes political and economic freedom. If you agree with what you have just read then click here or SMS your name to 32823.