Transformation über alles

Flip Buys says ConCourt no longer sees its role as impartially adjudicating a text but enforcing a goal

The end of the shared vision on the 1994 settlement

Various events during 2017 highlighted the fact that the shared vision around the (understanding) and interpretation of the historic settlement of 1994, as recorded in the Constitution, has come to an end. The underlying reason for it is to be found in the conflicting opinions on what the wording in the Constitution really means.

The former NP government regarded trading minority protection for majority rule as being the essence of the settlement. For the NP, the Constitution was a negotiated compromise to resolve the conflict in the country and was the end of a process that had created a new democracy in which everyone’s rights would be guaranteed. The pillars of the new democracy were the rule of law and an independent judiciary, the entrenchment of a market economy and of property rights, language protection and cultural freedom, and the Bill of Human Rights to protect all citizens.

The Afrikaners who were concerned that their fundamental rights were not being protected effectively, had been reassured that, given the circumstances, the settlement reached was a miracle with the best constitution in the world as its outcome. Motivation for calling the settlement a miracle was grounded in the argument that Afrikaans would enjoy the status of an official language, that mother tongue education would be protected by providing single-medium education institutions, that constitutional institutions, e.g. Section 9 institutions, would be created to among others, protect linguistic and cultural communities, that workplace equality would be guaranteed and that there would even be recognition for the principle of self-determination for persons belonging to cultural groups.

A negotiated revolution

The ANC, on the other hand, regarded the constitutional settlement as a “negotiated revolution”and a key point of departure- rather than the end of change. Significantly, President [Nelson] Mandela at the time said that freedom had not yet been attained, but the freedom to become free had been gained. Where the NP saw the settlement as the end of political change, the ANC saw it as the beginning of their “National Democratic Revolution”, or after their 2012 Mangaung Congress, the radical second phase of transformation.

For the ANC, the essence of the settlement lay in the fact that they had gained political power to address the large inequalities in society. As a result of the relative balance of forces that had prevailed at the CODESA negotiations, the ANC had to make concessions to gain power. Now, that the balance of forces has shifted, they use the power to enforce their original objectives.

Radical transformation

As the new government established its power countrywide, this power was being used to implement their own interpretation of the Constitution. The former Deputy Chief Justice Dikgang Moseneke already articulated the essence of this constitutional view back in 2009, and in 2019, it was reiterated by Chief Justice Mogoeng Mogoeng that the Constitution openly requires inequality to be addressed ardently through the radical transformation of society as a whole.

This take on comprehensive radical transformation as the essence of the constitutional directive, forms the basis of the broad ideological congruence of the country’s legislative, executive, and judicial powers. Apartheid is regarded as the sole cause of all inequality and according to the majority judgement of the Constitutional Court in the University of Free Sate case, South Africa’s offensive past even offers sufficient justification to take away certain constitutional rights of Afrikaners, like the right of the  Afrikaans community to be taught in their mother tongue.

The shared view of comprehensive radical transformation is embodied in government policy, court rulings and the transformation of society at large. It is further evident in policies pertaining to expropriation without compensation and radical economic transformation, as well as in court rulings on Afrikaans being abolished at public universities and the removal of school governing bodies’ power. It is also apparent in the creation of a socialist welfare system, radical race legislation in business and the workplace, and the expansion of state power across the entire society. In short, radical transformation comes down to the consummation of the ANC’s original revolutionary aims by means of state power.

Cultural freedom

Once again, our country finds itself at a chasm and a crossroads. This time, the ruling ideology of radical transformation and the “national democratic revolution,” jeopardise constitutional spaces and target the Afrikaans language, culture, and institutions. For Afrikaners, it constitutes a breach of the 1994 settlement, but for the ruling power elite, it is the implementation of that agreement. Whereas the changes violate the Constitution and the 1994 agreement as far as many Afrikaners are concerned, the ANC feels that Afrikaners want to hang onto apartheid and privilege.

These conflicting views are exacerbated by the fact that current conditions are not conducive to a new dialogue and the renewal of agreements about the constitutional provisions. As a result, Afrikaners will have to come up with fresh ideas and creative thinking when it comes to finding solutions. For Afrikaners, the only way out of this cul-de-sac of radical transformation is to establish extensive cultural self-management through strong community institutions.

Otherwise, the result will be the growing alienation of Afrikaners of who many believe that the real agenda of radical transformation of the ruling elite is the destruction of Afrikaners as a cultural community.  This perception was very aptly expressed by Judge Albie Sachs, a former member of the Constitutional Court, when he wrote in a 1996 judgment of:

“... a genuinely-held, subjective fear that democratic transformation will lead to the down-grading, suppression and ultimate destruction of the Afrikaans language and the marginalisation and ultimate disintegration of the Afrikaans-speaking community as a vital group in South African society.”

The UN’s Development Programme of 2004 found that democracy and constitutional guarantees for individual rights are not enough for the protection of fundamental community rights. The report concludes by stating that the history of the 20th Century proved that efforts to wish cultural groups away or to assimilate them into the majority, rather lead to a vigorous cultural revival. Democracy without cultural freedom amounts to freedom only for the demographic majority.

Flip Buys is Chairperson of the Solidarity Movement.