Dignity, Equality and Freedom
The Bill of Rights is the cornerstone of the new democratic order in South Africa. What it calls the "democratic values of human dignity, equality and freedom" are affirmed by its provisions. The state is enjoined to "respect, protect, promote and fulfil the rights in the Bill of Rights." Promoting all three of these fundamental values is essential to the success of the nation, united in its diversity, as it strives under its political leadership to heal the divisions of the past and establish a peaceful and harmonious society based on democratic values, social justice and fundamental human rights.The Constitutional Court has placed particular emphasis on the right to human dignity in several of its seminal judgments. The notion that everyone has inherent dignity and the right to have that dignity respected and protected, marks a complete break with the unfairly discriminatory core of the apartheid past. There is no dignity in grinding poverty, in exclusion and in being discriminated against in any way. By promoting human dignity and the full and equal enjoyment of all rights and freedoms in the manner contemplated in the Bill of Right a situation in which all people, irrespective of their race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth can enjoy their place in the sun in our lovely land.
Ngoako Ramatlhodi MP, and former premier of Limpopo, has recently described the progress of the national democratic revolution (NDR) espoused by the governing alliance in 2010, or fifteen years after taking charge:
"…[T]he white nation…have surrendered political management of the country to black people whilst holding on to all other levers of power…look at the ownership of land, the ownership of factories and the banks, the schools and universities that produce the best results…[T]he strategic objectives of the NDR are far from being achieved."
In a South Africa truly united in its diversity there would be no "white nation" and careful political management in accordance with the precepts and prescriptions of the Constitution would render the list of complaints listed by the honourable MP obsolete. A broad South Africanism, as propagated by William Gumede, would replace Ramatlhodi’s duality of a "white" and "black" nation living side by side in different worlds, one characterised by wealth, prosperity and success, the other by poverty, marginalization and failure. The amount of positive energy that would be released by the pro-active promotion of dignity and equality across the board would catapult the nation’s standing in the world back to the glorious status enjoyed in the aftermath of 1994. If negative "them and us" energy is deployed, a less felicitous and unexpectedly revolutionary outcome can be anticipated. There is no need for any revolution, either in the classical sense or otherwise, as the Constitution is both the ally and tool of all who strive to promote dignity, equality and freedom.
One of the rights protected in the Bill of Rights is the right to own property. This right is at the centre of economic success in many prosperous countries around the world. Some say that without it and without respect for the rule of law, the conditions for achieving economic success are unattainable. This has certainly been the case in a lot of countries comparable to South Africa. The collapse of the Zimbabwean economy can be traced back to the failure of the executive there to respect the independence of the judiciary. This led to the undermining of the rule of law and the implosion of the economy of our northern neighbour.
The way in which property is protected in the South African Constitution is expressed in section 25(1) of the Bill of Rights in the following terms:
"No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property"
This stern admonition is somewhat ameliorated by the provisions of section 25(5) which reads:
"The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis."
This provision is akin to the equality clause in the Bill of Rights which, after guaranteeing equality before the law to all, goes on to provide in section 9(2) that:
"To promote the achievement of equality, legislative and other measures designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."
One of the primary sources of unfair discrimination in the apartheid past was the inability of black people to own land in those parts of South Africa which were not made homelands, Bantustans or putatively independent states. Measures to redistribute land or give redress to those dispossessed of their land in the past have met with limited success. The burden of the cost of acquisition of land is one which the developmental state had difficulty bearing in the good economic times; since the world financial meltdown, and in its aftermath, this burden has become heavier. Spectacular failures on recycled farms have also bedevilled progress.
Such steps as have been taken to promote the achievement of equality by way of affirmative action, employment equity and black economic empowerment measures have not produced benefits on a scale affecting any beyond the emergent miniscule elite. Cynics suggest that the big banks, all foreign owned, are the biggest BEE beneficiaries.
About one half of the population still lives in relative poverty. Our gini co-efficient, the measure of disparity in wealth in a group, is the highest in the world. This means we are the most unequal society on earth. This is not what the Bill of Rights demands, by implication the state has failed in its constitutional duty to respect, protect, promote and fulfil the rights to dignity, equality and the various freedoms guaranteed to all in the Bill of Rights.
A means to address these failures needs to be sought. Fresh ways of promoting the achievement of equality and of fostering conditions which enable citizens to gain access to land on an equitable basis need to be found if a dignified, peaceful and prosperous future of a South African nation which is truly united in its diversity is to be found. Better ways of conducting the affairs of state are needed. Stimulation of the economy on a sustainable basis, the creation of decent jobs, the building of sturdy houses, basic education and proper healthcare for all are sorely needed. Stronger measures, both legislative and otherwise, are needed to ensure equality and dignity, two of the most fundamental rights we all have, are brought closer to the front of the stove in the national discourse. "Thinking out of the box" is indicated. The examples of successful nations and economies must be studied, the best for us must be extracted from their experience. In particular, post-colonial success stories need to be emulated and the pitfalls into which others have fallen, a la Zimbabwe, must certainly be avoided. The new carefully considered measures should be introduced diligently and without delay; this is what the Constitution requires of the state. It is for those in charge of the "political management of the country" to rise to the challenge. They are refreshingly alive to the problems, it remains to be seen whether viable solutions will emerge timeously.
Paul Hoffman SC
February 2010
