Heads we win, tails you lose (V)

Koos Malan writes on how transformationism always triumphs in the ConCourt

Heads we win, tails you lose (V)

22 April 2020 

This is the fifth in a series of articles on South Africa’s constitutional dispensation, the previous one can be read here.

In the previous article it was shown that the judiciary – especially the Constitutional Court – contrary to the tenets of the constitutional gospel, is in fact not as independent and impartial and that it is not a significant check on and balance for the legislature, executive and the ruling party. It was explained that the courts are ordinarily an intimate leg of the ruling elite and that in that capacity in contributes towards the practical achievement of the ideology of transformationism.

We concluded the discussion with a question: There is set of carefully defined guaranteed constitutional rights in the Constitution. So, can we not at least place our trust in the Constitutional Court to protect these rights? The courts, after all are the supreme guardian of our rights.

To answer this question, we need to understand what really happens when the courts interpret, especially when the interpret constitutional rights.

The belief in the objectivity and consistency of the meanings of constitutional rights

There is a fairly general conception that language in the form of words, phrases, sentences, etc has objective, certain, consistent and predictable meaning. The very notion of constitutional supremacy and stability is in fact premised on this conception about language. Precisely on that score it is believed that constitutional-rights formulations can be trusted in as genuinely guaranteed. Moreover, constitutional provisions, specifically formulations on constitutional rights have been defined very carefully. In this case we can therefore invest even more faith in the objectivity and certainty of their meaning.

Thus viewed, when the Constitutional Courts interprets, so the belief goes, it cannot do as it pleases. On the contrary, it is believed that when the court interprets, it essentially only informing us of the content of the objective meanings that have been there from the outset, and then simply proceeds to apply these meanings to the concrete scenario of the case it adjudicates.

Hence, if we are of the view that government or the state administration has violated our rights, we can rest assured that the court will agree with us on the objective meaning of the rights concerned and will deliver a favourable judgment. Why is that? Simply because, as we have said, that the meanings are after all fixed, certain and objective - not only for us but for all, including also the court.

This conception of the objectivity of language and the predictability of formulations, specifically formulations of constitutional rights, is very reassuring. It is on that basis that constitutional rights are hailed as entrenched and guaranteed.

However, this view is totally incorrect.

Meanings change, are not objective and are unpredictable

Meaning, especially the meaning of constitutional rights are anything but objective and consistent. And interpretation is far distant from the mere application of the already objective meaning of constitutional provisions to concrete situations.

Moreover, formulations of constitutional rights of the kind that we come across in the bill of rights, are ordinarily wide and open-ended. Notions such as reasonableness, fairness, justifiability, democratic society, human dignity, freedom, equality, and many more, are by their very nature vague, lending themselves to conflicting views and interpretations.

Furthermore many of these notions are clearly conflicting, constituting the bases for profoundly divergent ideological positions. The (conflicting) ideas of freedom and equality for example testify to that. Many more examples may be cited.

The crux of the matter – and this is crucial to understanding this – is that no constitutional provisions really have an inherent and objectively predictable meaning, especially not provisions on constitutional rights. These provisions are invested with meaning only once they are interpreted in the concrete situation of litigation, when the court decides what it means within that scenario.

Moreover, these meanings are also not fixed. On the contrary, in the next scenario the same or another court may ascribe a different, even opposite meaning to the very same provision. The court therefore does not find or discover a meaning that has been there all along. On the contrary, it is rather a question of the courts from case to case creating new meaning. They devise and construct (rather than construe) meaning, all under the cloak that inherent meanings are simply enfolding.

Undoubtedly, this description of what occurs through interpretation is unsettling, because it dislodges the very notion of guaranteed rights. It shows that the idea of guaranteed and entrenched rights has been unfounded all along; that we have all the time been deceived by a fallacious, soothing fiction of objective meanings and guaranteed rights.

This insight is not at all new. On the contrary, over many decades several analysts of the interpretation process demonstrated that interpretation precisely involves the unpredictable creation of new meanings, thus revealing that rights are far from guaranteed and enduring. However, in the midst of the cheerful clamour aroused by the constitutional gospel which gripped the minds of many since the 1990’s, the actual truth surrounding interpretation was unfortunately ignored.

The inherent ideological interpretation – and meaning – of the Constitution

This, however, does not mean that interpretation is an unbridled subjective matter, allowing every individual interpreter to do as he pleases. No, interpreters belong to interpretation communities, each with its own common world of experiences, views and goals, which in South Africa is quite often highly ideologically charged.

The leading members of the interpretation community engaged in interpreting the law and the Constitution are judges, legal practitioners and legal academics. Public servants, politicians, and “ordinary” members of society also participate in the activities of interpretation communities.

When an interpretation community has to interpret the Constitution, it embarks upon its task expecting to find in the Constitution meanings that conform with their ideological persuasions – and they do in fact find those meanings. Hence they interpret the Constitution in keeping with their ideological beliefs.

There are in fact a number of interpretation communities, each interpreting the Constitution in conformity with their own ideological expectations and prejudices. On close analysis there is not a single Constitution; there is a variety, each having the meanings that the various interpretation communities ascribe to it.

Transformative interpretation

Precisely this is also playing out in South Africa. Here we also have a variety of interpretation communities engaged in interpreting the law and the Constitution. Most prominent among these, is the interpretation community that subscribes to the ideology of transformationism – the transformationist interpretation community. This interpretation community regards the Constitution as the primary instrument for achieving and defending the goals the ideology of transformationism led by the ANC-centred ruling elite. 

According to them the primary goals of the Constitution are to establish substantive equality; a single homogenous and unilingual nation, and a culturally decolonised non- (or rather specifically anti-) Western, African culture and then to fend off and suppress all perceived counter-forces.

The present Chief Justice (and his predecessors) together with most of his colleagues represent the leading echelons of the transformationism interpretation community. By interpreting the Constitution in a transformationist way, they discharge their responsibility, together with (and as part of) the rest of the governing elite to promote and defend transformationism.

In his public addresses Chief Justice MogoengMogoeng is quite outspoken about this. However, he is part of an established pattern among senior judges who actively promote transformationism. Former Deputy Chief Justice Moseneke, former Chief Justice Langa and various others did exactly the same.

Mosenekein particular was adamant that each citizen was bearing responsibility to contribute towards the achievement of the goals of transformationism. Organs of state, the courts, civic institutions, the professions – everybody – was enlisted to invest their energies into the achievement of transformationism. What Moseneke advocated represents the textbook example of the urge for a totalitarian state. This is highly deplorable. He nevertheless embraced this totalitarianism clearly because he, like his colleagues, does not realistically view transformationism as a partisan ideology, but rather as something with an almost sacred – religious – character. Precisely that affords him as a senior judge the self-confidence, perhaps more correctly, the audacity, to enlist everybody to the cause of transformationism.

Judges, however, do not in the first place serve transformationism through public speeches. They discharge that duty primarily through their judgments. And the Constitutional Court unfailingly does precisely this. Whenever there is litigation that somehow involves an aspect of transformationism the Constitutional emphatically serves the cause of transformationism.

There are many judgments in which he Constitutional Court did precisely that. Some of these are discussed in some deal in chapter 7 of the book. I mention some of them here.

In Agri South Africa v Minister for Minerals and Energy the Constitutional Court held constitutionally legitimate legislation that provides for the deprivation of mineral rights without due compensation to the holders of these rights, thus justifying the state’s violation of these property rights. In Mogoeng’s argumentation the commitment to transformationism was one of the crucial considerations for the court’s finding;

In South African Police Service v Solidarity abo Barnard the Constitutional Court endorsed the police’s refusal to promote a highly performing white female police officer, who repeatedly came out as the top candidate for promotion to the position in question. One of the main grounds for the Court’s finding was the pursuit of racial representivity, which is one of the central elements of transformationism;

In Glenister v President of the RSA the Constitutional Court using the specious pretences of rules of the law of evidence defended the dominant elite’s portrayal of South African history, namely one that depicts them (the dominant elite) as the heroic saviours of South Africa; and brusquely rejected an alternative narrative, particularly relevant in this case - namely one of a failing state marked by rampant corruption and maladministration, which is the making of this elite.

In FEDSAS v MEC for Education, Gauteng the Court endorsed the centralisation of powers relating to placing of learners in Gauteng schools in the hands of the MEC for education who is notorious for his blunt hostility towards Afrikaans schools.

In City of Tshwane Metropolitan Municipality v Afriforum (the so-called street name case) the majority of the Constitutional Court aligned itself with the goal of cultural homogenisation and forcefully rejected the recognition of cultural diversity and Afrikaner cultural heritage. In the majority judgment Mogoeng, supported by eight of his colleagues unequivocally sided himself with the (other segments of) ruling elite in its grossly anti-Afrikaner outlook on South African history, accompanied by a drive for a majoritarian-inspired homogenous South African culture. In doing so the Court went back on its previously articulated commitment to diversity in cases dealing with the rights of gay persons and same sex marriages.

In Afriforum and Another v University of the Free State, and in spite of constitutional provisions suggesting the exact opposite of its finding (section 29(2)), the Constitutional Court held that the continued use of Afrikaans alongside English as a language of instruction at the University was incompatible with the transformative vision of the Constitution. The Court reached this conclusion on the basis of what it described as the transformative approach towards the interpretation of this provision. The recent judgment of the Court in the GelykeKanse case about the dismantling of Afrikaans as a language of instruction at the University of Stellenbosch confirmed this trend.

By law none of these judgments had a single predetermined outcome. In each case based on an alternative interpretation of the Constitution, the Court could have decided these cases differently – reaching an opposite conclusion. It was not that the Constitution, as it were, that commanded these outcomes. Another factor, to which the Court in fact referred each time, was the decisive consideration for these outcomes. That consideration was the ideology of transformationism.

The Court constantly enlisted the Constitution as an instrument for transformationism. In each case the Court anticipated a transformationist meaning and every time it in fact found that transformative meaning and decided accordingly.

In this way the Court, as part of the governing elite, unfailingly discharged its responsibilities towards the goals of transformationism and fended off perceived assaults on it. In doing so the court was a fully-fledged participant in the bout in the political ring. Yet all this might not have been conspicuous, because everything was hidden away behind the cloak of legal, more specifically constitutional jargon used by the courts.

Many people, including the most erudite jurists often criticise these judgments as unfounded and wrong. These jurists do not belong to the transformationist interpretation community and they view the Constitution differently. They expect to find meanings in the Constitution different from those of the transformationists – and they do in fact find those meanings. They are able to advance cogent arguments for that. In practical terms, however, that counts for nothing, because these jurists, in contrast to the transformationists, are not in positions of power. They are not part of the governing elite. They simply have to accept their loser status, regardless of how sound their arguments might be.

Supremacy? The court truly the protector of our rights?

What is to be gleaned from the exposition of the interpretation of rights about constitutional supremacy? We can learn from it that if there is something like supremacy, such supremacy clearly does not vest in the Constitution itself. It vests in the authoritative interpreters of constitutional formulations. In present-day South Africa these interpreters attach a transformationist meaning to these formulations. In the final analysis authority (call it supreme authority if you like) vests in the ideology of transformationism as articulated from case to case by the authoritative interpreters of the Constitution.

And are the courts, more specifically the Constitutional Court, truly the trustworthy supreme guardian of our rights? The answer depends on whether you are advantaged or disadvantaged by transformationism. In each of the cases referred to above, the losers stood on the wrong side of transformationism. Thus the Court held that they in fact never had the rights, they thought the Constitution guaranteed. To these people the Constitutional Court proved not to be the supreme guardian of their rights. On the contrary, the Courts was the supreme and final depriver - that is, not the protector but the constitutionally legitimised violator of their rights.

When the present constitutional order took effect about a quarter of a century ago, this truth was not disclosed. On the contrary it was proclaimed that rights were guaranteed and that the Constitutional Court would vouch for these guarantees. The reason for that was that the advocates of these beliefs were clueless about the nature of interpretation and also failed to understand that the Constitutional Court was together with the ruling party, part of the ruling elite and shared in the commitment towards the achievement of transformationism.

Other cases?

The defenders of the gospel of constitutional supremacy and the independent and impartial judiciary wager one last escape route. They cite judgments in which the state administration, government and senior figures in the ruling party were stringently censured by the court: for example the Nkandla judgment against Jacob Zuma and the (ANC caucus in the) National Assembly or the SASSA judgment delivered after the minister and department of social development seriously mismanaged the payment of social grants.

One must be realistic, however, about the nature of these judgments. None of them involved any aspect of transformationism. On the contrary, these judgments were delivered within the parameters of the ideological assumptions of the governing elite. In the Nkandla case the court on close analysis delivered judgment in favour of one and against another faction in the ANC (the Ramaphosa faction which emerged victorious after Ramaphosa’s election as ANC leader in December 2017). And in the SASSA judgment the court contributed towards ensuring the payment of millions of social grants. In this way the court created new coherence in the ruling elite (and its policies), because the payment of these grants is an indispensable manifestation the ANC’s ideology of transformationism.

These judgments therefore do not rebut the truth about the court’s intimate participation in promoting the goals of the ruling elite. On the contrary, they show that whenever the ruling elite is subject to pressures as a result of internal strife and instability, it – the court – comes to its rescue, helping to restore balance in the elite, thus allowing the elite to pursue its goals with renewed energy.

What the six judgments referred to above show, is that the court after all has never been the check on and balance against the governing party in the legislature and the executive as it was avowed to be. The highest court is in fact the opposite of that. It is the specialised juridical branch of the governing elite – the defender and promoter of the ideology of transformationism.

When we seek to protect rights and consider suitably effective checks and balances against a rights-infringing government, the answer, contrary of the terms of the constitutional gospel, is finally not to be found in the courts. We have to look for those answers elsewhere - in an improved constitutional dispensation.

The book on which this series is based is published by African Sun Media and is available, amongst others, in Protea Book Shop stores. It may be ordered directly from the publisher or from TakealotGoogle BooksITSIFacebook ShopAmazon Kindle: or Pinterest.