Our great constitutional divergence (III)

Koos Malan analyses the difference between the constitution as written, and the constitution in practice

In the previous article I promised to explain that the South African Constitution, in spite of its high claims to supremacy and stability, is in fact changing all the time. The evidence to that effect is overwhelming. To deal with all of it will take many pages. Hence, I deal with but a few selected instances in this already quite long article. This gives rise to conclusions made at the end that I believe to be of considerable significance to the South African public.


Scrutinise the Constitution in search for the term, transformation. Nothing is forthcoming. Yet, even though the term is nowhere to be found, the ANC leadership, the Constitutional Court and the entire public sector consistently act consonant with the ideology of transformationism. For all of them the Constitution is essentially transformative; the Constitution is an instrument in the service of transformationism and everything is measured against the yardstick of transformationism.

Transformationism, as will be explained in the fourth article on the partiality of the Constitutional Court, is an ideology of cultural (and linguistic) homogenisation and economic egalitarianism, enforced by the present dominant elite under the centralised leadership of the ANC.

Transformationism has grown so dominant that it is now not only one of the constitutional values, but the decisive value and lodestar of the constitutional order.

What we are confronted with here is a fundamental change in the constitution – the actual constitution – without the wording of any provision of the written Constitution having been amended. The Constitution was not amended to the effect that there are now new wordings of constitutional provisions. Neither is it only a matter of judicial interpretation.

What we are witnessing here is substituting law as explained in the previous article. Hence the constitution simply changed through sustained practice: government, the Constitutional Court and the public sector consistently acts in pursuance of an ideology in terms of which they side-lined the value basis of section 1 of the Constitution and replaced it with a new value basis, namely the one encapsulated in the ideology of transformationism.

There has never been a parliamentary debate about the desirability or otherwise of such change. Never was there a parliamentary vote about it and never has there been parliamentary approval. The question of a two thirds parliamentary majority never came up. Yet this profound constitutional changed has occurred through sustained practice.

In this way a profound constitutional change occurred without it having been noticed by the vast majority of the public. In the final analysis it happened in consequence of a potent political factor, namely the ANC-led political elite who brought into force their political programme which they succeeded in achieving because there were no political counter forces capable of thwarting it.


In a number of places the Constitution requires that the representivity principle to be taken into account in appointment scenarios. Hence, the national population profile in terms of race and gender must be considered when appointments are to be made in the public service, in the judiciary and in Chapter 9 bodies. This, however, is only one of various criteria. It is not a decisive principle.

In consequence of the ANC’s ideological drive, racial representivity has however become an absolute requirement in appointment scenarios, trumping all other considerations. According to the principle of racial representivity the national population profile in terms of race is required to be reflected in all institutions and all work places in all occupational levels.

The effect of racial representivity is that all institutions would primarily be black and under black control, thus disallowing any institutions for minorities or under the control of any minority community.

In order to be functional under the representivity principle all institutions will also have to be English language institutions, since English is the only language that everyone is more or less conversant with. In view of this, representivity proves to be a crucial strategy for the transformationist objective: to forge a single homogenous society devoid of any notable tolerance for diversity, especially diversity in the public sphere.

Inspired by the dominant elite, representivity was also established by general practice. The Employment Equity Act and the Broad Based Black Empowerment Act are the two encompassing legislative instruments premised on the basis of representivity. These two Acts are complemented with a large collection of legislation which is also predicated on the principle of racial representivity.

However, the principle of represenativity goes far beyond legislative measures. It has been inculcated in the public discourse as an idea that can hardly be resisted. Already more than a decade ago, retired justice Johann Kriegler indignantly, but no doubt justifiably, lamented that representivity has become a be all, end all principle.

What happened here, just as in the case of transformation is that the actual constitution has once again changed in the absence of textual amendment. Once again there is new - substituting - law that has been established through consistent practice, bolstered by ANC inspired political ideology. The Constitution was not amended. It was simply superseded by the new law of the actual constitution.

Cadre deployment and the patrimonial state

A reading of various relevant provisions of the Constitution clearly shows that it does not countenance the deployment of incompetent party cadres in the public service. The Constitution does not allow a patrimonial state. This is patently clear from section 195 which outlines the general principles pertaining to the state administration. According to this provision representivity is one of a large variety of factors to consider in relation to appointments in the public service. However, for inept supporters of the governing party there is clearly no place. Various other constitutional provisions affirm this.

That is what the formulations of the Constitution say. However, the actual constitution is way different because shortly after it came to power the ANC began with a sustained programme of appointing its own party loyalists – cadres – all over in the public service and elsewhere in the public sector (police, armed forces, etc). Competence hardly played any part in this. Owing to tens of thousands of incompetent and otherwise inept appointments, the public sector soon started its long trajectory of deterioration. In consequence an incompetent public sector has become one of the salient characteristics of South Africa’s constitutional order.

If the ANC knows this, it cannot be bothered, because cadre deployment carries on relentlessly. Moreover, the governing party has over the years repeatedly affirmed its commitment to cadre deployment. Gwede Mantashe, former Secretary General and currently the national chairman of the ANC on several occasions reaffirmed the ANC inexorable commitment to cadre deployment.

Mantashe’s assertion should not strike one as odd. On the contrary, it is perfectly in keeping with the strategy of the ANC over many years that it is working towards gaining power over all levers of power and influence – the public service, armed forces, police, judiciary, organised economy – everything. Cadre deployment is the chief strategy to achieve this goal.

There is no prospect of the ANC abandoning its totalitarian goal of controlling all centres of power in society. On the contrary, new legislation establishes state control of the once largely self-regulating legal profession; and one of the goals of the grandiose scheme of national health insurance is to state-departmentalise the medical profession, thus placing it under ANC control.

Almost nothing has materialised of the Constitution’s commitment to a professional public service, sensitive to the needs of the public. That commitment is in the final analysis barely more than stillborn constitutional law. It has a nominal existence in formulations, but is hardly manifesting in the actual conduct of the public service. In actual practice there is a different constitution in place – the constitution of cadre deployment and the constitution of ANC control of a bloated and asset-squandering public service, far distanced from the handsome constitutional provisions on the public service. Once again the actual constitution is vastly different from the Constitution Act purports to entrench.

Public safety

The maintenance of public safety is the core responsibility of the state. Accordingly, the state ought to be vested with the monopoly to lawful violence. That is the very first requirement for an entity to qualify as a state. If the state to a substantive extent shares the capacity to engage in legitimate violence with other formations, the very existence of the state is jeopardised.

Accordingly, the Constitution also provides that the South African Police Service safeguards public safety and has the responsibility to combat crime. At the same time there is another provision, namely section 12(1)(c), which elevates the right to be free from violence to a constitutional right. The assumption is that the state in essence constitutes a peaceful public order. It is the duty of the police service as a core institution of the state to effectively guarantee the public peace and to restore order in the exceptional cases where crime is committed. That is also what the Constitution envisages.

The actual situation in South Africa is vastly different.

Large portions of the public are hectored by crime, especially violent crime. Notwithstanding consecutive programmes over many years to combat violent crime, it remains an unabated scourge.

Since the Mbeki era the country’s borders have been left porous allowing major currents of uncontrolled illegal immigration. Now we are suffering from the bad fruits of this folly with sustained tension between locals and foreigners, thus contributing to the already bad crime situation.

The deterioration of public services, particularly on municipal level has produced the wide- ranging phenomenon of so-called service delivery protests, which to such an extent exhausts the capacity of the police service, so that it cannot sufficiently attend to ordinary rime. This assumed such bad proportions that a previous national police commissioner stated that the police are in fact not able to discharge their constitutional responsibilities.

Owing, amongst other things to cadre deployment, the police are ineffectual and have descended into a corrupt institution. Several senior police officers perpetrated serious crime; Successive previous national commissioners of police had to vacate their positions due to a mixture of ineptitude and corruption. At present the police are widely viewed as ineffective and corrupt.

The void left by ineffective police service services is increasingly filled by a collection of private and civic initiatives. There are more than 9 000 private security firms in the country and private security officers outnumber police officers by a ratio of three to one. There are numerous neighbourhood watches and members receive increasingly improved training. Generally – and that is really the crux of the matter – the constitutional provisions on the maintenance of public safety have been dislodged. The responsibility for securing public safety has devolved away from police who now share this seemingly core state responsibility with a raft of non-state institutions.

Hence, quietly the Constitution’s provisions on public safety have been superseded by a new actual constitution. Accordingly, the responsibility for public safety is now also the responsibility of organised sectors of the public. The provisions of the Constriction do not reflect this development. If one therefore relies solely on the provisions of the Constitution for establishing what the actual constitution entails, one is bound to serious self-deceit.


According to section 1 of the Constitution nonracialism is one of the founding values of the Constitution. To the extent that it is not already established as a value, it is to be strived for.

Nonracialism should be distinguished from multiracialism. Multiracialism recognises the existence of races, even though the demarcation is often vague and inexact. Multiracialism accounts for races in the legal order. Nonracialism, by contrast rejects race/s as a fiction – a fallacious ideological construct. Hence, viewed from the perspective of nonracialism there are no races (racial groups) and distinctions.

There are only individuals. To the extent that race might be accounted for in the constitutional order (for example in the case of affirmative action) the nonracialist view says that that should not be viewed as an implicit recognition that races do in fact exist. No, it is nothing more than a temporary measure needed for the restoration of the (actually primordial) truth namely the individually-based non-racial dispensation.

Being a value of section 1, nonracialism may be removed or replaced only with the support of a two thirds majority of members of the National Assembly.

What has actually happen?

Commencing with the Employment Equity Act a large collection of race-based legislation was passed by the South African parliament. is. There is no indication that these are but temporary measures. This legislation therefore once again entrenched race as a core factor in South Africa’s constitutional dispensation.

As described above, representivity is one of the ANC’s crucial strategies for achieving the goals of the ideology of transformationism. This is firmly based on race – racial distinctions and racial definitions, once again affirming the racial basis of the present order.

This, however, is but the beginning. Over the past decades a nasty racial discourse, primarily aimed at the country’s minorities has accumulated considerable momentum. Whites (often more specifically Afrikaners) coloureds, Indian and foreigners (especially from elsewhere in Africa) are continuously the target of this.

It is significant that the most powerful and influential politicians are often the primary actors in inciting inflammatory racial rhetoric. The EFF leadership is prominently involved in inciting hate against whites and Indian people. Of even more significance is that the leadership of the ANC and the country also actively take part in this.

Former president Zuma is on record stating that Jan van Riebeeck, began all the troubles of South Africa. President Ramaphosa also joined in accusing whites of the primeval sin of land theft. In December 2019, notably on the Day of Reconciliation Ramaphosa denounced Afrikaners (the Voortrekkers) as invaders. The parliamentary debate of 27 February 2018 preceding the decision to confiscate white owned land without compensation represented a dreadful crescendo of anti-white odium in the country’s primary public forum. There are many more examples.

Political commentator Ferial Haffajee writes that the erstwhile blissful rhetoric of nonracialism has made place for the opposite – what she describes as a race war. Most prominent in this, she notes, is a new generation among black people who views the present order to have failed to make good its promises to them. Whites have to bear the blame for that.

Evidence of the disappearance of nonracialism and its replacement with a nasty multiracialism is overwhelming. There are no grounds for perceiving nonracialism as a value of the present constitutional order or that there is a drive towards achieving it. Moreover, constitutional bodies such as the Human Rights Commission have repeatedly countenanced outbursts of utmost hatred against whites (for example by Julius Malema), on the basis of the flimsy excuse that whites have been and are still enjoying a distinctive privileged position. In contrast, notably much lesser slights against blacks by whites with no public influence are damned as major examples of hate rhetoric.

The nett effect of this is that the legal regime on hate speech of section 16(2) of the Constitution has also been superseded. Outrageous hate speech and incitement of violence against whites are treated as constitutionally largely legitimate, in contrast to much less nocuous speech against black people which is doomed as severely reproachable and unconstitutional.

In consequence of political practice and despite its seemingly heavy constitutional entrenchment the value of nonracialism has withered away. Yes, section 1 of the Constitution is still the same formulation of two decades ago. However, it is not more than that: merely a formulation. No more is it part of the actual constitution, because it lacks conforming conduct required for an actual legal norm. On the contrary, the practices strongly slant to the direct opposite. Precisely these practices have rendered nonracialism to dead letter thus eventually causing it to lapse.

Official multilingualism

The Constitution is apparently very strongly committed to official multilingualism. There are eleven official languages. The Constitution requires them to enjoy equal esteem and to be treated equitably. The use of specifically the indigenous languages must be promoted and their status enhanced. So provides section 6. Various other provisions also appear to strengthen the commitment of the Constitution to official multilingualism. The prohibition of unfair discrimination for example also forbids discrimination on grounds of language. On its part section 35(3)(k) affords the right of an accused to preferably use his / her own language in a criminal trial.

The Constitution’s formulations about official multilingualism were in fact so progressive that various commentators praised the Constitution’s language regime as internationally exemplary. Judged by the formulations of the Constitution it was in fact not unreasonable to hold this view. Yet, in the final analysis these constitutional provisions suggesting official multilingualism proved to be hardly more than mere formulations. It was clear almost from the outset that the actual practices would differ vastly from the formulations.

Legislation is constantly available only in English; the state’s language of record (documentation) is almost exclusively English; the courts have anglicised completely whilst education has anglicised almost on all levels. Today it is an established fact that the South African state has but one real official language, namely English.

As shown above, representivity has played an important part to bring about Anglicisation, because institutions reflecting the national population profile, have to be English, being the only language in that everyone is more or less conversant with.

If the formulations of the Constitution were to reliably reflect the actual linguistic situation in South Africa, it would read that English is the state’s sole official language. Still, the Constitution’s language provisions remain unchanged. That being then case these provisions create a major misrepresentation of the actual situation, because in practical reality these provisions have long ago been superseded by a new constitutional reality – new substituting constitutional law – namely that of official English monolingualism in the place of lapsed multilingualism.

The migration and dispersion of governmental power

The Constitution has detailed provisions carefully setting out the organs of state vested with various forms of governmental authority and also how this authority is to be exercised. Governmental authority (legislative, executive, judicial, administrative, police, prosecution, etc.) may be executed by no other body that the designated ones.

In practical reality, however, a different reality has been playing out. Three matters are relevant in this context, each one a fascinating topic, calling for thorough investigation. In these columns we can only touch on each.

First, according to the way in which governmental authority is allocated to the national, provincial and local spheres of government, it is a quasi-federal state. However, owing to the operation of a collection of political forces, it has morphed into a centralised state, even without any corresponding textual amendment having been made.

Some of the most important forces in the context are: First, the ANC is the governing party in eight of the nine provinces. That goes a long way in undermining the very prerequisite for sustaining federalism, namely that provinces / states must possess distinctive identities which they seek to preserve, thus distinguishing themselves from the other provinces and from the national government.

Secondly, the ANC it itself a distinctive centralised body, making policy in its centralised organs – the national executive committee, the national working committee and the so-called big six (the six primary national leaders); thirdly, the ANC has a strict ideological programme – that of transformationism – allowing no tolerance for variation and diversity; the quality of administration on provincial and municipal levels is ordinarily (even) more dismal than on national level. In consequence administration that ordinarily would have been done by local and provincial government has to be shouldered by national government. National government repeatedly had to intervene on national level.

The cumulative effect of all these forces is that provincial powers have dwindled considerably in favour of an increasingly dominant national government. Without an amendment to the relevant constitutional provisions, the actual constitution morphed into a centralised dispensation.

Secondly, we face an even more drastic transmutation of the way in which the authority is allocated by the Constitution. That relates to the migration of authority away from the legislative and executive organs of state designated by the Constitution to an array of shady non-state institutions.

This played out specifically in the last years of the Zuma presidency. A mixture of kitchen cabinets, consisting of factions within the ANC, often in close co-operation with sinister business interests connected to the Gupta business empire, effectively replaced the relevant organs of state as public decision-makers. They determined policy, made decisions about senior appointments in organs of state and determined the terms of lucrative contracts with state institutions.

We have come to know this phenomenon with the graphic South Africanism, state capture. This described precisely what has been happening. State functions have been usurped and executed by non-state institutions. In this way, what political scientists often describe as a hybrid regime established itself. This is a scenario in which political authority is shared by constitutional and non-constitutional institutions instead of versing exclusively in the relevant state institutions as envisaged in the formulations of the Constitution.

It is important to grasp the constitutional implications of state capture. State capture and the accompanying hybrid dispensation for a period substituted the Constitution’s dispensation relating to the designation of political authority. This did not result from amendment of any provisions of the Constitution, but from murky political machinations which caused this constitutional change from taking place. On close analysis this took the form of a coup.

After Cyril Ramaphosa took over the leadership of the ANC there are attempts to turn around this hybrid state. However, the ANC remains an agglomerate of factions vying for political power and the accompanying patrimonial benefits. Whether or not the hybrid state is being replaced rather merely undergoing a change of character, remains to be seen. There is evidence that only the nature of the hybrid state has changed.

Moreover, the ANC itself is committed to a hybrid governmental dispensation. This is attested to by its participation in a three party alliance with the Cosatu and the South African Communist Party. The two allies which together with the ANC form the ruling alliance, constitutes a hybrid form of government for as long as the ANC enjoys a parliamentary majority. Together they exercise governmental power without them (the SA Communist Party and Cosatu) being exposed to formal mechanisms of accountability such as parliamentary control and the kind of control ordinarily exercised over organs of state.

Thirdly – and once again a drastic deviation from what the Constitution envisions – a diffusion of governmental power is playing out in South Africa. Constitutional institutions are increasingly losing governmental power in favour of a collection of local and corporate private, civic and business institutions.

Owing to state failure (nationally, provincially and locally) the state (administration) has simply lapsed in many places especially in rural areas. That also occurs in metropolitan areas, mainly because the state administration voluntarily withdraws in order to attend to more pressing issues.

The vacuums thus left are filled by an array of laudable and less laudable initiatives and institutions which execute state functions in the place of the retreating state. Included in this are demarcated private security suburbs with own electricity and a series of autonomous amenities, as well as largely autonomous towns, and also less laudable vigilante organisations.

The growing degree in which private and civic institutions fill the void, left by the state’s diminishing ability to provide for public safety, is crucially important in this context. Many other factors are, however, also contributing. Increasing alternative power generation and supply to fill the void left by the malfunctioning of Eskom is a very important factor. In consequence private and civic formations are gaining increasing independence from the state and the accompanying ability to take care for themselves and to develop the power of self-government.

In the final analysis this growing autonomy has profound political, more specifically constitutional implications. Public power, which ordinarily would be vesting exclusively in the bodies designated by the Constitution, is quietly transferred to diverse private, civic and business institutions. This implies a constitutional change of the first order since it pertains to the execution of public responsibilities ordinarily associated with the state.


This explanation with reference to the South African situation brings to light that the Constitution is by far not a fixed, stable and unchangeable given. On the contrary, alongside the Constitution with its imposing pretences of supremacy, stability and finality, there is also another – the actual – constitution. This is the constitution actuated and changed by political forces. This is the constitution existing in the actual events and practices.

Ordinarily this constitution is less visible than the pretentious and seemingly supreme Constitution. However, it is the real and actual constitution in contrast the so-called supreme Constitution, which is often nothing more than a collection of formulations, way out of kilter with the actual constitution – the constitution of the actual practices, the actual events and the actual political forces.

Hence, be careful to believe that the formulations of the Constitution necessarily represent the actual constitution. Such formulations are often passé and misleading – superseded by the actual decisive forces and accompanying practices, which constitute the actual constitution.

Some people might justifiably find this explanation unsettling. Some will reject it with indignation, because it goes against the grain of the doctrine of constitutional supremacy.  Against the trite – and fallacious - doctrine, it surely is. However, the explanation is imperative because it brings us back to actual reality.

The doctrine of constitutional supremacy has a distinctive religious flavour. It preaches a soothing gospel. That is the gospel that we may count on the formations of the Constitution as the permanent guarantee of a worldly salvation – for our security, the protection of our interests and of our happiness. In view of this, the present and previous articles rebutting the doctrine of constitutional supremacy might be experienced by some as even more distressing.

It is important, however, to go beyond this distress. Even more important, it is not waste energy in an attempt to blow life into a fallacious doctrine. Our attention should be directed into another direction.

First, we have to gain clarity on the prerequisites for a balanced and properly functioning constitutional dispensation. The second, as shown in the above explanation, is that we have to understand that constitutional change, either favourable or unfavourable, is effected by potent political forces. Several of the examples touched on above, were the product of the ANC’s ideology of transformationism.

That, however, is clearly not the only mighty political force. On the contrary, any well-organised and well-focussed community and formation of civil society is capable of effecting constitutional change. This is specifically achievable in the context of a malfunctioning state such as present-day South Africa. Moreover, such changes are in fact happening. Precisely that will be the focus of the sixth and last article: how favourable constitutional change can be brought about by well-organised communities.

First, however we have to cast light on the other main article of faith of the constitutional order, namely the firm religious-like belief in the independent and impartial judiciary as the guardian of our interests.

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 Takealot: Google BooksITSIFacebook ShopAmazon Kindle: or Pinterest.