What if the Constitution is not all it's cracked up to be?

Jeremy Gordin says many of our current problems lie downstream from flaws in our founding document

Just to clear up any misconceptions, because I don’t want to be confused with the DA’s Natasha Mazzone (attractive as she is!), I must put it on record that I don’t have a BA LLB. I have only a BA (Hons) in Ancient Languages and Cultures [1].

But though I don’t have a law degree, I did spend six months covering the courts when I was a cadet journalist on the Rand Daily Mail, then months and months covering the various court appearances of former president Jacob G Zuma [2].

More importantly I have friends and acquaintances who are silks (senior counsel). All are very smart and tell me everything I need to know. (“I get by with a little help from my friends”.) Equally important is that, following months of legal threats (against me), I have a TV licence [3].

So, on April 20, I watched an episode on eNCA of Judge Dennis Davis’ new programme, Judge for Yourself (a sort of reprise of Future Imperfect), featuring himself (vu den?); Trevor Manuel, our Minister of Finance from 1996 to 2009, and subsequently Minister in the Presidency for the National Planning Commission from 2009 to 2014 during the reign of the forementioned Zuma; and Lawson Naidoo, Executive Secretary of the Council for the Advancement of the South African Constitution (CASAC).

You too can watch this show here. The subject to be debated or the question to be answered was “Who must step up when the constitution is under attack?” However, the subject was in fact, as Davis himself said, “Where to the Constitution, given the attacks recently being made on it?”

Before continuing. let’s bear in mind that the programme has been given a half-an-hour slot only, presumably because it’s believed that viewers can’t bear more than roughly 30 minutes of eggheads talking about “serious” subjects. In fact, the actual duration of the programme, excluding ad breaks, etc., is 26 minutes only, a short time in which to discuss such a subject.

Now, given that I don’t want you (or me) to fall off my train of thought, I have set out below, in a long endnote (here [4]), a summary of what was said on the programme, in which I have tried to put down the main “arguments” and to be as fair as possible to the participants and Davis – and I’d ask you, if you have the patience, to read it.

Okay, if you’ve watched the programme, or read the summary below, let’s move on. First off, let me say that I have always been respectful of our Constitution. What’s not to respect? Many fine words and ideals – a fragrant flower grown indigenously by the Rainbow Nation and admired by the rest of the world. Secondly, I am not without respect for Davis (even if he’s a Manchester United supporter), Manuel, or Naidoo.

But I did find it odd that when Manuel punched below the belt (presumably it was calculated) by introducing the matter of Cape Judge-President John Hlophe – found guilty of misconduct and who ought right now to be suspended by the JSC, and under whom Davis worked (if I have this right) for some 20 years – I was somewhat taken aback that Davis didn’t make it clear that he is on the side of the good guys (i.e., not Hlophe). Maybe Hlophe took care never to hassle him, maybe Davis is ultra-discreet, who knows?

Regarding Manuel, maybe I am growing wiser (though that seems unlikely), or maybe I simply never noticed before, but during the programme he often seemed to be in a kind of dwaal. His well-rounded RP pronunciation and delivery were as finely modulated as ever. But he seemed to stare bemusedly at Davis and the surroundings and wander off topic a great deal.

Oh well, what do you do when everyone knows that the elephant in the room is the incapable and disastrous ANC? I guess, as Skipper the penguin famously advised, you just smile and wave, boys, smile and wave.

But my real source of wonder, even though I don’t have a BA LLB, was that Davis held a programme on the Constitution being under attack – but neither he nor his guests bothered to consider what the shortcomings of the Constitution and its shaping might have been. Surely, if even I think that might have some relevance, the idea can’t be that arcane.

My argument, Judge Davis, with respect, is that, if you check things out carefully (especially by comparing the interim 1993 constitution versus the final 1996 one), it could well be said that the Constitution itself bears a smidgen or two of blame for the muddy puddle we’ve landed up in.

The destruction of the public service for one – through the practice of cadre deployment – went largely unchecked by the Constitution. The 1996 Constitution removed the two most important pillars of any capable state: namely, that an independent public service commission should oversee the appointment and promotion of civil servants (not politicians), and that this should be done on the basis of merit even if (in the post-apartheid South African context) one eye also had to be kept on the need to promote “broad representivity”.

But since I’m already about 900 words in (excluding a frighteningly long endnote), and since we’re discussing a “legal” sort of TV programme, let’s proceed on to just a few legal issues. Within months of the ANC coming to power in 1994, the then new Minister of Justice, Dullah Omar, mooted the appointment of a politician to the (to be created) position of “super attorney-general” (see here). And the final constitution, adopted in 1996, gave the ANC something close to just this, the National Prosecuting Authority (NPA). Section 179 provided for a “single prosecuting authority in the Republic” headed by a National Director of Public Prosecutions (NDPP).

This person would be entitled to “intervene in the prosecution process” and could review any “decision to prosecute or not to prosecute” by one of his subordinates. Once the relevant legislation was in place the ANC immediately appointed one of their own MPs (or "cadres") to head it.

I don’t have to tell Davis what’s happened as a result. Okay, one clue: remember when the NPA announced that it had decided to prosecute then Deputy President Jacob Zuma? Everyone in the ANC interpreted the decision to prosecute Zuma as a deeply political one – because it was one, because the NDPP was clearly understood to be a political appointee and because Zuma and his supporters believed that those “more guilty" of arms deal corruption were being shielded.

Okay, one more clue: “Nomgcobo Jiba”. En kyk hoe lyk ons nou.

Or how about the Constitutional Court itself? Designed to sit above the old (white) judiciary, the ANC has steadily filled it with its preferred judges, via the JSC, which was also expanded by the final constitution to allow for ever-greater ANC control.

The constitution sets out no formal requirements for someone to be appointed a judge (there is just the nebulous requirement that they be “appropriately qualified”) and while there is the obligatory reference to “broad representivity” there is no mention of individual merit being a factor (let alone the deciding one) in appointments or promotions.

One would have to be hard of hearing and sight not to have noticed the embarrassing circus that ensued at the most recent vetting of potential ConCourt judges, at the end of which two superb white candidates (Judge David Unterhalter for the ConCourt and Owen Rogers for the SCA) were simply sent packing.

All of these “legal” occurrences, which have given us an incapable state, and which are not far from foisting an incapable judiciary on us as well, all these lie downstream from a Constitution which, it appears, is by no means as watertight and wise a document as it’s purported to be.

So, Judge Davis, while, as you say, the judiciary might have done “a pretty reasonable” job up to now, it has often had its hands tied behind its back – by certain provisions of the Constitution itself.

Ah yes, those early, heady days when the final Constitution was put together and the days thereafter. Many thought that the ANC was removing a number of awkward checks and balances so that it could rule "unfettered by constraints" on behalf of "the people"; that the ANC could not be motivated by more nefarious considerations. 

Perhaps. But look at what we see around us now. And, I was wondering, are dreams considered to be permissible evidence? I ask because the other night I dreamed for some reason about Prussian field marshal, Gebhard Leberecht von Blücher (1742–1819), the fellow who, with Wellington, whupped Napoleon’s ass at Waterloo in 1815.

Remember him? At the invitation of the British government, he was invited to England to be thanked formally for his and his army’s role in the Waterloo Campaign. When his carriage stopped on a hill overlooking London, in all its magnificence, he is said to have exclaimed, “What a city to plunder!”

Alas, I suspect many who helped put together the Constitution had similar dreams, albeit in languages different to mine or yours.

Judge for yourself.


[1] With the greatest respect to the fine scholars who taught me, “Ancient Languages and Cultures” is what I think of as a lazy person’s version of a “real” Classics degree. I.e., you can earn the degree without having to sit through years of nightmarish exams in classical Greek, Latin – or Hebrew. I believe, however, the tousle-haired prime minister of the United Kingdom has one of the “realer” degrees in this field – so either way such a degree doesn’t seem to help much.

[2] It seems Zuma recently “lost” his legal representatives. As Lady Bracknell remarked in The Importance of Being Earnest, “To lose one parent, Mr Worthing, may be regarded as a misfortune; to lose both looks like carelessness.” Or, in the case of Zuma, perhaps a last-ditch legal stratagem?

It was suggested to me by an SC that I therefore offer my services. In the SC’s view, I could probably do a better job than some of Zuma’s recent legal representatives and, the SC further noted, things are in such a mess in the courts at present, that it wouldn’t matter that I don’t have a law degree. I considered this carefully but realised that I probably would have to work extremely hard but not get paid, so I decided against it. During a time of Covid and cashlessness, my altruistic, Socialist beliefs and affection for Zuma only stretch so far ...

[3] Personally, I think OUTA (Organisation Undoing Tax Abuse) should add TV licences to its remit. Why do we have to pay for these things given the state of national TV (SABC, etc.)? I caved in only because I desperately need to watch rugby on the weekend (not on the SABC) and I feared the sheriff or Red Ants might come round, obviously on a Saturday, to grab my TV set before kickoff.

[4] Manuel said inter alia that “we” must take responsibility for not “socializing” the Constitution, for not making sure the words in the Constitution were made “real” to all South Africans as “they went about their difficult lives”. Davis then asks Naidoo whether CASAC shouldn’t rather be called the Council for the Defence of the Constitution because that is what things have come to. Naidoo agrees that the country has not been sufficiently “transformed” to have reached the stage for which the Constitution offers a blueprint.

Davis then moves the debate on and asks whether the present attack on the Constitution isn’t coming from what he calls “the rent-seekers” – those concerned only about their own bank balances – and not, for example, from folk living in Khayelitsha. Naidoo says Yes, the problem is the attacks on the rule of law and the denigration of the judiciary, including specific judges, now surfacing big-time. Davis also suggests to Manuel that the folk in power at the time never used the Constitution as a basis for their economic policies but went a different way (read: instead of favouring the poor, etc., those in power chose a sort of neo-Capitalism). [Davis is politely putting the so-called RET (Radical Economic Transformation) argument to Manuel.]

Manuel says No – decisions had to be taken in terms of the then facts on the ground – and in fact, good decisions were made (increasing spending on children, social welfare grants, growth of education spending, etc.). Manuel then explains why the RDP was scrapped – he seems to be saying that it needs to be understood that RDP aims were subsumed into everyday duties of departments, rather than being something “external”.

Davis says the problem is however that hindsight is 20/20 – and that what’s playing into the hands of the rent-seekers is that the Constitution says you should have a right to clean water, but the people say Look, we don’t. So, what’s the point of this Constitution?

Davis then asks whether the problem is surely that there is no “capable state” – and people have no confidence in the state anymore. So, what’s the point of litigation – litigation (as in numerous Concourt judgments) doesn’t help. Judges don’t run the state, after all.

Then Manuel says there is a problem with the “separation of powers” [sic]. Manuel explains this by introducing the issue of Judge John Hlophe, noting that for Hlophe to be impeached there has to be a two-thirds majority in favour of impeachment in parliament. But if it doesn’t happen, then the courts aren’t much of a check, are they? His point, as it emerges (or is brought out by Davis), is that the legislature hasn’t held the executive responsible for many a long year, and so on. Manuel runs with this ball – and says, well, yeah, but this “separation” of powers goes down to the lowest level of government in SA, and so no one holds the municipalities to account ...

It’s not quite clear (at least to me) where Manuel is going with this. But Davis says to him that the socio-economic disaster we now face is said by many to be the fault of all our governments for the last 27 years – and that people like Manuel are responsible. Manuel says the problem is “communication” – that people have to know that many goals were not scientifically propounded – and that there were all kinds of problems, such as trying to fix for example the “built environment” but no one acted on anything. They move onto the “tragedy” of District Six – and how nothing happened.

Davis asks Naidoo why this is so? Naidoo says everything could be done per the Constitution – there’s no need, for example, to amend section 25 of the Constitution (“the expropriation of land without compensation). Manuel adds that the problem is not section 25 but that nothing is happening on “redistributed” lands – and the state should be seeing to this. Naidoo says Yes, but the minister of agriculture has admitted her department doesn’t have the “capacity” to do anything.

Ah, says Davis, but if the state has no capacity, what’s the use of judgments from the Concourt – and Davis says he believes the judiciary has done a pretty reasonable job. But what’s going to change, asks Davis imploringly.

Well, says Naidoo, the Constitution does hold out “hope” – if only the government would focus on it properly. Then Manuel launches into an attack on Didiza and on public servants ...

The programme has to end but Davis says the Constitution is a valuable document and, without it, we’d be in serious trouble – and we have to close the gap between the reality and what the Constitution proclaims, or we’re in profoundly serious trouble.