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ANALYSIS | Politicians fail, then blame the constitution

The simple reason is that there is nothing in the constitution that prevents governments from addressing racism, poverty and inequality. The “barrier to change” that is most often mentioned is Section 25, the right to property. This is said to enable people who used force and law to deprive the majority of their land and wealth to keep their spoils. As we have seen over the past few years, Section 25 is said to prevent the state from expropriating land unless it compensates the owners (enabling them to demand large sums of money in exchange).

But the property right is not unlimited. First, any rights guaranteed by the constitution can, Section 36 says, be limited by “a law of general application” that is “reasonable and justifiable in an open and democratic society based on dignity, freedom and equality”. Second, Section 25 also contains clause 8, which says: “No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, to redress the results of past racial discrimination.” 

So, if a government wanted to override the property clause to address racial unfairness, the constitution already allows for that. This is why the debate over changing it to facilitate expropriation without compensation has been pure political theatre.

All this allows judges to decide if a government can limit the rights of those who own property, and some who want change fear that judges don’t share their hopes. But we have no idea how judges would react if asked to make such a decision. As retired deputy chief justice Dikgang Moseneke often points out, there has been no case since 1994 in which the government has tried to redress poverty or inequality and has been prevented by the courts and their interpretation of the constitution. The claim that judges have stood in the way of change is, therefore, false.

Democracy killer

Some critics of the constitution agree that it has not stopped change. But, they say, it has not made it happen either. They want a constitution that leaves as little as possible to judges and lawyers — it should say very clearly that sweeping changes are needed to right the wrongs of the past and spell out exactly what those changes are. This, they say, would force judges and the courts to endorse change.



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