SOUTH AFRICA’S MOST COMPREHENSIVE CONSTITUTIONAL REARRANGEMENT SINCE UNIFICATION IN 1910

South Africa is experiencing a comprehensive constitutional rearrangement that is overthrowing not only the constitutional arrangements of the 1996 Constitution but also the basic tenets of the Union that came into being in 1910.

1.  Three pillars

A state’s (continued) existence is dependent on a variety of factors. Three of these – the pillars on which the state structure is founded – are of particular importance, namely:

-  A dominant state ideology that all key elite groupings identify themselves with or at least resign themselves to.

-   Through its security forces, the state must exercise the monopoly on lawful violence so that no non-state formation will be nearly strong enough to confront the state.

-  The state must have a countrywide infrastructure which forms the basis for an integrated national economy, which all key economic sectors buy into voluntarily.

An assessment of South Africa with reference to the three pillars from 1910 to 1994 (and in the subsequent number of transitional years) gives an illuminating comparative view of the condition of the state at present. All three pillars of the South African unitary state are currently collapsing and are making way for a completely different dispensation of fragmented orders, together with growing areas of state absence and varying degrees of disorder.

2. South Africa 1910 to 1994

2.1. Ideology

The dominant initial ideology in 1910 was that of British-English imperialism with significant concessions to the Afrikaners. The South African state was a dominium within the British Empire, with the interests of the Empire enjoying priority. The economic system was capitalist with a preference for English money, often with British connections, particularly in the mining industry, while labour – white and especially black – was getting the worst of it.

However, important concessions were made to Afrikaner demands, particularly with regard to equal language rights. In accordance with a general consensus in the two white components, South Africa was a white state from which blacks were excluded politically.

Soon however Afrikaner nationalism replaced British imperialism as dominant, culminating in the Pact government in 1924 with Afrikaner nationalism collaborating with the leftist Labour Party. This fairly moderate nationalism gave way to a much more forceful Afrikaner nationalism of the DF Malan’s National Party which took over the reign of government in 1948.

The white state henceforth gained an Afrikaner character, and the interests of the lower socio-economic strata in the white segment of the population received special attention. However, big capital was carefully protected, amongst other things, through safeguarding the steady supply of cheap black labour.

This ideological domination started crumbling only in the late 1970s, eventually to capitulate formally to a black majority government in 1994.

It was then replaced by a new dominant ideology, that of constitutional rainbowism.

2.2. Monopoly on violence

During the period from 1910 to 1994 the state’s monopoly on violence was impregnable. Neither the Rebellion of 1914, the Mining Strike of 1922, the Ossewa Brandwag in the 1940s, the ANC/PAC’s armed struggle of the 1980-1990s nor anything any form of (organised) could come near to challenging the state’s monopoly on violence.

2.3.  Countrywide infrastructure

Stimulated by growth in the agricultural and mining sectors during the last decades of the nineteenth century, a strong countrywide infrastructure was established in a fairly short time. By the end of the nineteenth century, 70 per cent of the country’s rail network had been completed and it was rapidly expanded after the end of the Anglo-Boer War. The first steps for generating and distributing electricity were taken thanks to the mining industry and urban municipalities.

While the territory that would form the Union in 1910 was still divided in republics and colonies by the end of the century, a national economy, supported by a national infrastructure was already taking shape to a considerable extent a decade or more prior to this.

Unification can in fact be seen as a political unity that was established as fitting superstructure on top of the already well-established substructure of the countrywide economy.

Thanks to energetic further expansion of economic infrastructure the countrywide economic unit was rounded off in the twentieth centuty: railway lines to the remotest areas; roads – since the 1970s a world-class network of highways; a network of dams, canal systems and tunnels; Escom (now Eskom) that was established in 1923 as countrywide supplier of electricity and as recently as 2000 still was generating a huge surplus of electricity and was highly regarded internationally; the countrywide postal and telecommunication systems; and ports, airports, pipelines and refineries, everything of world-class standard.

The establishment of a comprehensive countrywide infrastructure served as driving force for a national economy. From Richards Bay to Port Nolloth and from Musina to Simon’s Town, people were linked to one another and could do business – entering into and comfortably performing contracts. The countrywide economy was the material base for a material – economic – South Africa, which supported the political South Africanism.

3. What now – post-1994?

3.1.  State ideology

The state ideology post 1994 is contained in rainbowism – the so-called rainbow nation as articulated in the Preamble to the 1996 Constitution and in sections 1 and 2, as well as the Bill of Rights. In terms of this, South Africa henceforth would be a neutral state where equal rights for all would be enshrined in a so-called supreme constitution.

In October 1997, however, there was an alarming omen when Samuel Huntington, shortly after publication of his famous Clash of Civilizations and the Remaking of World Order, received an honorary doctorate from the then Rand Afrikaans University, where after he delivered a public lecture. I also attended the delivery of this lecture.

In his Huntington reiterated the thesis of his book: The world is divided into a number of civilisations and where they meet, there are profound and protracted confrontations. Occasionally these deep dividing lines meet in specific states, so-called cleft states. South Africa, where the West and Sub-Saharan Africa meet, is precisely such a state.

Huntington was emphatic with reference to his basic thesis, but he spoke indirectly with regard to the South African cleft state. The tactful and patrician professor obviously did not want to upset his South African audience, still gleefully basking in the glory of rainbowism. The implication, however, was crystal clear – and alarming. There were people among the audience who felt that this could not go unanswered.

And so Justice Johan Kriegler, then a serving judge of the Constitutional Court, in thanking Huntington essentially repudiated Huntington. Huntington might be correct with regard to the rest of the world, but regarding South Africa he was wrong, because, as Kriegler explained, he – Kriegler – had his own “little theory”.

In presenting his little theory, Kriegler was speaking not only on behalf of himself, but also on behalf of everyone who at that stage was still revelling our vaunted constitutional miracle. In a nutshell, the “little theory” entails precisely the ideology of the new neutral state of constitutionally guaranteed equal rights and the miracle of rainbowism, effectively refuting Huntington’s analyses of clashes of civilisations and cleft states.

Since then, however, Huntington has been decisively proven correct. In fact, the writing was on the wall already at that stage, because the undercurrents of apprehension about the new constitutional dispensation were already gaining momentum.

Some Afrikaners mistrusted what essentially was a one-party dominant system centralising basically all power in the ANC, and Africanists were up in arms because constitutional rainbowism had thwarted the genuine Africa dispensation they had been pursuing.

As Huntington foresaw, a new Africanist elite has come to the fore, disdainfully rejecting constitutional rainbowism and striving for a complete economic revolution apart from a political one. As far back as 2015, Feriel Haffajee in What if there were no whites in South Africa analysed this new fighting elite.

This elite is prominent at several South African universities. They argue that while the black majority have been in office in the form of the ANC since 1994, they were cheated during the negotiations. Constitutional rainbowism has left the black majority still powerless and poor and is perpetuating the evil capitalistic, white power of the preceding centuries in an underhand way. Therefore, the constitutional dispensation as a whole has to be abolished.

It is not clear what should replace it. What is needed, however, is an entirely new dispensation that truly breathes the spirit of Africa – more particularly Azania – where all levers of power and wealth are vested in the (leadership of) the black majority.

Lindiwe Sisulu’s attacks on the loathsome constitution earlier this year should be seen against this backdrop. It forms part of a broad rejection of the constitutional dispensation by a growing body of Azanianist intellectuals and politicians.

Rainbowism – the state ideology since 1994 – therefore has forfeited its dominant position. This means that the first pillar of the constitutional dispensation, namely the dominant post-1994 state ideology, has collapsed.

3.2. Monopoly on legal violence

One of the most distinctive characteristics distinguishing the current situation from the pre-1994 dispensation is that the present state has relinquished its monopoly on lawful violence. The present state therefore is extremely vulnerable to violent attacks. This was graphically demonstrated by the KZN uprising in July 2021, as was the vulnerability to organised extortion by several criminal mafias, such as the construction mafia, the attacks on the road transport industry, coupled with the obstruction of major traffic routes and so forth.

Excessively violent crime, once again recorded in the recently crime statistics, is characteristic of the South African state, while the police and the defence force are unable to control this owing to poor leadership and loss of infrastructure, manpower skill and proper anti-crime strategy.

The void left by the state is being filled by private structures and formations: private security, fenced-in suburbs, neighbourhood watches and so forth. With approximately half a million private security officers, South Africa currently ranks fourth in the world for private security services on a pro rata basis.

But this void is also being filled by crime with impunity, by organised crime syndicates and in general by areas where the system of law is retreating before a dystopic nature state of disorder and violence.

Whereas no formation on its own can overthrow the government, the relevant organs of state are totally unable to exercise their power everywhere. In numerous instances the state has yielded to formal and less formal enclaves of private systems of law, and elsewhere to crime, i.e. to lawlessness and statelessness.

This process means that the second pillar of the constitutional dispensation is also collapsing.

3.3. Decay of the national infrastructure

In contrast with the former excellent countrywide infrastructure there currently is constant deterioration. The overall cause is the ideology of transformationism as it finds expression in cadre deployment and a total lack of understanding of the demands of a modern-day state and economy.

In recent times the deterioration of infrastructure has been accelerated because of looting, including large scale plundering of basic infrastructure, which in turn is facilitated by the weakening of the state’s security services.

The decay is comprehensive and on a large scale. Eskom is nothing but a shadow of its former self. While the centralist ANC has been doing its level best to maintain exclusive state control over the electricity industry, it ultimately had to yield to pressure to allow independent operators to generate significant amounts of power. The constitutional implications are far-reaching, because this means that local communities now are able to disentangle themselves from dependence on the state and to become self-reliant and ultimately self-governing.

Disintegration and localisation are further accelerated by the deterioration of the railway system.

Roads have to take over the burden of the decayed railway system but are unable to do so. Road transport is much more costly, apart from the fact that roads everywhere are being neglected and are often dangerous. Private initiative has to make up for the absent state.

The effect of this is that the integrated countrywide economy is declining owing to the decaying infrastructure all over the country. Consequently, economic activity increasingly is becoming geographically fragmented and a national economy is more and more becoming an abstraction instead of an actual reality.

4. Extent

All three pillars of the South African unitary state are disintegrating.

The state simply does not any longer have the monopoly on lawful violence. Lawful and unlawful non-state structures and formations with a capacity for violence are appearing everywhere, resulting in the criminal and security profile of the South African state increasingly becoming more fragmented and localised, with non-state structures taking over the function of maintaining safety and order to an ever increasing extent.

While the national infrastructure for an integrated countrywide economy has not disintegrated completely, it is in a state of decline. As a result, the idea of a countrywide South African economy is receding, with ever more local economies functioning increasingly more autonomously.

The state ideology of rainbowism currently is to be found only in the formulations of the Constitution, but it no more forms part of actual constitutional law. There is no new ideological thinking in support of South Africa as a unitary state.

Substituting ideologies giving expression to the new reality of disintegration, localisation and communities looking after themselves, still are poorly articulated but are taking the form of ideas for community and local autonomy and self-government, and also in the notion of the self-governing communities cooperating on a federal basis.

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Koos Malan is professor emeritus of constitutional law at the University of Pretoria and a fellow of the Centre of Constitutional Dynamics of Sakeliga (Business League). Malan is the author of, amongst others, Politocracy – A critique of the coercive logic of the territorial state and ideas around a response to it, Pretoria Univ Law Press (2012) and There is no supreme constitution – a critique of statist-individualist constitutionalism, African SUN Media (2019). Malan also co-authored with Prof Ilze Grobbelaar-Du Plessis the very recently published Studente-handboek in die konstitusionele reg.