In this opinion piece I share my perspective about the state of South Africa’s constitutional democracy as an advocate who practises in all the higher courts of South Africa. Indeed, I thank the avalanche of turgid reaction to Minister Lindiwe Sisulu’s take on the same issue this past week.

While I shan’t engage with the content or even merits of what strikes me as Minister Sisulu’s political manifesto, and the cacophony of squeals and meandering political rhetoric that followed it, I think an opportunity has arisen for practising lawyers to express their views, individually and from personal experience, on the state of South Africa’s fabled constitutional democracy. In a constitutional democracy, lawyers should be free to express their views on this issue free from fear of victimisation by those who control the purse strings of legal work in government and elsewhere. After all, those of us who practise in the courts experience the impact of the Constitution directly at the level that matters most: the judicial adjudication of contesting rights.

I accept that Minister Sisulu has been part of the executive that has failed to deliver her party’s promise of “A Better Life for All”. However, my focus is not the messenger and her track record; it is an aspect of her message.

I accept also that there are some heart-warming good stories to tell about the successful invocation of some provisions of the Constitution in the highest court. But these should not be allowed to drown out the shrill cry of probably hundreds of thousands, if not millions, of South Africans who still, despite the Constitution, suffer the indignities of race and gender unfair discrimination. They are my focus in this opinion, as hardly anyone ever genuinely speak for them without exerting some mileage – whether political or economic – for themselves.

My thesis is this: The Constitution is a document with lofty ideals and aspirational virtues. It is not a panacea to all societal ills. For example, equal protection and benefit of the law (s 9) is a virtue to which we all aspire, not one we all possess. One need only look at how selective the application of the law has been, and continues to be. Some people are persecuted by organs of state and publicly pilloried on mere allegations of wrongdoing. Examples include Mr Matshela Koko (former Acting Chief Executive at Eskom) who is being relentlessly pursued under the guise of “state capture” but in truth seemingly for doing his job at Eskom which, to the chagrin of people in positions of power and their benefactors, meant lost opportunities for pilfering at the state power utility. Admissible evidence of criminality against him I am yet to see. Whether it will come is anyone’s guess.

Others seem protected even after a forensic investigation points to possible defalcation. Examples in this category include former Minister of Health.

The President himself has been implicated at the State Capture Commission in facilitating “state capture”. Yet, not so long ago, the President officially received (and is scheduled to continue receiving) the State Capture Commission Report in tranches as President. He will decide what recommendations made in the Report to accept and which to ignore or reject. But what of the allegations that the President may have facilitated the very conduct that the State Capture Commission was established by the former President to investigate?

Let’s remind ourselves:

The evidence was that Mr Ramaphosa was chairman of the board of directors of Optimum Coal Holdings (OCH) from 26 March 2012 until 22 May 2014. He held a 9.64% shareholding (via the Lexshell company) in OCH and through its subsidiaries, including Optimum Coal Mines (OCM). OCH had provided a parent company guarantee to Eskom to step in if OCM was not able to perform its obligations in terms of the OCM Coal Supply Agreement (CSA). Mr Ephron, OCH and OCM CEO at the time, told the State Capture Commission that Mr Ramaphosa divested his entire interest in OCH on 22 May 2014. At that stage, the Eskom penalties claims against OCM for the supply of sub-optimal coal in breach of terms of the CSA amounted to over R1.4 billion. Mr Ramaphosa had an association with Glencore and its public representatives for a number of years. In his statement to the Commission, he referred to it as a long-standing relationship that started in 2005.

Between March 2012 and May 2014 OCM failed to pay to Eskom the coal penalty claims of over R1,4 billion. The President (still Mr Ramaphosa then) resigned as a director and Chairman of OCH in May 2014 to take up Deputy-Presidency of the country under President Zuma on 25 May 2014.

Between June 2014 and May 2015 the coal penalty claims that were not paid to Eskom by Glencore’s Optimum Mine increased by R740,000 000 to R2.17 billion from R1 431 429 719.

In July 2015 Eskom served Combined Summons on OCM and OCH, claiming payment of the R2,17 billion coal penalties. OCM and OCH elected to go into business rescue rather than deal with the summons in court. They also avoided going through the arbitration proceedings as provided for in the CSA. They demanded that Eskom scrap the R2.17 billion. Eskom refused. The Business Rescue Practitioners elected to sell the business to Tegeta. Glencore claimed that Eskom pressured them to sell by refusing to scrap the R2.17 billion penalties that were rightfully due to Eskom.

In January 2018, Mr Ramaphosa (who had been Chairman of OCH just over 3 years previously and held a substantial shareholding in the company) was now head of government business and Deputy President of the country and of the ruling party. In that capacity, so the evidence goes, he sent an instruction to the Department of Public Enterprises to appoint a new Eskom board and for the new board that was yet to meet to dismiss Mr Koko and other executives. The Labour Court set aside that decision. Mr Koko remained dismissed nonetheless.

That, in my view, is the state of our constitutional democracy.

There is more. The President told the State Capture Commission, under oath, that the ruling party’s deployment committee did not discuss recommending candidates for judicial appointment. It has now reportedly emerged from minutes of the ruling party’s deployment committee that it did. That, by definition, would ordinarily constitute perjury and a serious violation of the law and the Constitution by a sitting President. But, will the President be hauled before Parliament to account to us on pain of a vote of no confidence or, possibly, impeachment? Will the State Capture Commission Report make any recommendation about what appears to be Presidential mendacity under oath? In light of this revelation, will the Acting Chief Justice (and, indeed, the Judiciary and the organised legal profession) still find it appropriate that a President seemingly compromised in this way should still receive the Commission’s Report and be the one who decides which recommendations to accept or reject?

The answers to these questions will further reflect the state of South Africa’s constitutional democracy. It is not the Constitution that is to be judged. Rather, it is to the institutions that have been put in place to give effect to its lofty ideals that we should look: Parliament. The Judiciary. The Executive (Cabinet). Will they fail South Africans once again?

People wax lyrical about a Constitution that guarantees the right to human dignity (s 10), yet we see black graduates at traffic intersections begging for work, any form of work, to make ends meet, alongside decent ordinary South Africans begging for food with toddlers in tow. Whose dignity is contemplated in s 10 if not that of the most vulnerable among us? We extol the virtues of a Constitution that guarantees the right not to be detained without trial [s 12(1)(b)], yet countless numbers of black people who cannot afford bail or effective legal representation for “poverty crimes” like theft of food, or items intended for sale in order to buy food, languish in South Africa’s gaols. Is the right not to be detained without trial guaranteed only for those who can afford a lawyer, or for those lucky enough to be assisted by Legal Aid SA?

We have a Constitution that guarantees freedom of association (s 18), yet “cancel culture” forces people out of business and employment merely for being perceived as being associated with persons of whom the establishment does not approve. Is this freedom reserved only for pre-approved association?

That is the state of South Africa’s constitutional democracy.

We have a right, in theory, to freedom of thought, conscience, belief and opinion [s 15(1)], yet the legal profession seems unperturbed by a provision in the covid-19 regulations that criminalises the expression of a view on covid-19 that contradicts the government’s official position, subject only to the cynical caveat that the view expressed must be intended to mislead. But “intention” can only be determined by the criminal court after criminal prosecution has already been instituted; and so the caveat is open to abuse.

That is the state of South Africa’s constitutional democracy.

The President is talking of plans to force (euphemistically termed “mandate”) people to take injections of what some experts regard as experimental, in order to, apparently, “save lives”, yet there is no evidence that vaccination prevents transmission of the covid-19 virus, or that it prevents death from covid-19 complications, or that vaccination prevents hospitalisation from severe covid-19 effects. We are now told that vaccination “reduces” chances of infection, or hospitalisation or death. If one dares ask basic commonsense questions about the rational connection between compulsory vaccination and so-called “vaccine passports”, on the one hand, and the information that is available as regards the provenance and purpose for which these things are intended, one tends to be “cancelled” and labelled “anti-vaxxer” or “flat-earther” or “anti-science” or “covidiot” and more.

This is the state of South Africa’s constitutional democracy.

The former Chief Justice spoke out, outside the courtroom, on matters of corruption involving the state and private sector. He also expressed religious and other views on matters of state involving Israel. For that he was pilloried and, for the latter, ultimately censured by the Judicial Conduct Committee for “becom[ing] involved in political controversy or activity, in breach of Article 12 (1) (b) of the Code [of Judicial Conduct]”. The former Chief Justice appealed against the censure. Contrastingly, the Acting Chief Justice speaks out, outside the courtroom, in response to a politician’s tirade about matters of state involving the role played by a demographic of the judiciary as she sees it. He is commended, including by a retired Justice of the Constitutional Court. There is no complaint to the JSC of which I am aware that the Acting Chief Justice has “become involved in political controversy or activity in breach of Article 12 (1) (b) of the Code”. How can there be, when a retired Justice of the Constitutional Court and an association of advocates have already lent credibility to what some consider a political intervention by the Acting Chief Justice?

That is the state of South Africa’s constitutional democracy.

There is another serious consideration. Before his public excoriation of a politician for doing what politicians generally do (namely, shoot from the hip for political mileage), did the Acting Chief Justice stop to consider his position (and that of the Judiciary he leads) if Minister Sisulu’s political outburst against a demographic of the Judiciary were to give rise to litigation which engages the politician’s right to freedom of thought, belief, conscience and opinion (s 15) and her right to freedom of expression (s 16), which ultimately ends up in the higher courts, including the Constitutional Court? How impartial can ordinary South Africans expect the courts to be in their determination of a case when the leader of the Judiciary, publicly supported by a retired Constitutional Court Justice and an association of advocates, has already publicly pronounced his aversion on behalf of the Judiciary?

That is the state of South Africa’s constitutional democracy.

Not so long ago, another politician (the Minister of Transport) referred to the State Capture Commission on which the Acting Chief Justice presides as “the place where people go to urinate”. Yet another politician (leader of the third largest party in Parliament) launched an extraordinary broadside at the entire judiciary when he said: “There is gross incompetence at the highest level of the judiciary, starting with the incompetent Acting Chief Justice, Zondo … We are not going to be afraid to talk about incompetent judges of the Constitutional Court who take four months to resolve an urgent matter”.  He made this statement seemingly oblivious of how the Constitutional Court goes about its business of judgment consideration and writing. (Clearly he had not watched an episode of this publication under “Judicial Voices” where Justices of the Constitutional Court explain the process). I am not aware of scarcely the sort of outrage we are now witnessing against Minister Sisulu’s tirade from the Acting Chief Justice in defence of the Judiciary.

That, in my view, is reflective of the state of South Africa’s constitutional democracy.

Some large white firms win tenders from state-owned enterprises with the assistance of small black firms and then, on the award of the contract, either terminate the partnership or (playing one black firm against another in their pursuit of bread crumbs falling from the master’s table) replace the original black firm with another small black firm to which it pays lesser revenues than those agreed with the original black firm. On the rare occasion when the termination is challenged in court, all manner of technical points are often raised with the specific purpose of draining the financial resources of the small black firm and, with that, its resolve to fight. In cases of this kind – economic transformation cases – our courts have tended in my experience rather to go with form over substance, technical niceties over justice. Having ruled that former Chief Executive of Vodacom lied when he claimed to have invented a technological application that had in fact been invented by a young black man, why did the Constitutional Court not make a finding in favour of the young black man and award him his claim instead of sending the matter for determination of the amount of damages to be paid back to the Chief Executive of the very company with which the young black man is in dispute? Although this had been the contractual bargain made by the parties themselves, the manner in which Vodacom litigated this case, as lamented by the Constitutional Court itself in its judgment, called for a measure of judicial activism in the interests of justice and in pursuit of a goal higher than a common law sanctity of contract: equity and constitutional redress. An opportunity was lost to develop the common law in a case that cried out for it.

The court’s concluding remarks in Makate v Vodacom are worth reproducing to demonstrate the opportunity lost:

“The stance taken by Vodacom in this litigation is unfortunate. It is not consistent with what was expected of a company that heaped praises on the applicant for his brilliant idea on which its “Please Call Me” service was constructed.  The service had become so popular and profitable that revenue in huge sums of money was generated, for Vodacom to smile all the way to the bank.  Yet it did not compensate the applicant even with a penny for his idea.  No smile was brought to his face for his innovation.  This is besides the fact that Vodacom may have been entitled to raise the legal defences it advanced.  As a party, it was entitled to have its day in court and have those defences adjudicated.  This is guaranteed by section 34 of the Constitution.  However, it is ironic that in pursuit of its constitutional right, Vodacom invoked legislation from the height of the apartheid era, to prevent the applicant from exercising the same right.

In not compensating the applicant and persisting in advancing the legal defences even after the trial Court had emphatically found that an agreement was concluded, Vodacom associated itself with the dishonourable conduct of its former CEO, Mr Knott-Craig and his colleague, Mr Geissler. This leaves a sour taste in the mouth.  It is not the kind of conduct to be expected from an ethical corporate entity.”

An opportunity was, indeed, lost to develop the common law for the sake of justice, equity and the pursuit of equal protection and benefit of the law as enshrined in the Constitution that we so lavishly celebrate. What is the point of all these lofty constitutional values if our courts are not prepared to stretch their imagination in pursuit of them in cases that cry out for such intervention against a litigant of the kind the Constitutional Court describes in this passage?

That is the state of South Africa’s constitutional democracy.

We have a provision in the Constitution that demands that organs of state implement a procurement policy that favours the advancement and protection of persons disadvantaged by unfair discrimination and the procurement of goods and services from categories of persons disadvantaged by unfair discrimination. Yet the legislation that Parliament enacted in order to give effect to that constitutional provision forces black and women owned firms to compete on equal footing with established white firms on price, knowing full well the impossibility of that competition. In the result, the preferential procurement constitutional provision is an empty promise.

That is the state of South Africa’s constitutional democracy.

In order to give effect to broad-based black economic empowerment as provided for in s 217(2) of the Constitution, Parliament enacted the Broad-Based Black Economic Empowerment Act. But in reality, black people buy shares in existing white companies through new companies with huge loans obtained from banks and other finance institutions to be repaid over time from the appreciation of the share price. The shares are used as guarantees for the repayment of the loan and if the share price should fail to appreciate sufficiently to cover the amount of the loan within the period of the loan, the shares are forfeited to the bank or finance institution that provided the loan. And our courts have ruled that the white company, even though the shares are no longer in black people’s hands, remains “empowered”.

That is the state of South Africa’s constitutional democracy.

In a case where a woman raped by 3 on-duty policemen sought damages against the Minister of Safety and Security, both the High Court and the Supreme Court of Appeal dismissed her claim saying the Minister was not vicariously liable for the conduct of the 3 policemen. The woman had accepted a lift from the 3 policemen after she had found herself stranded in the early hours of the morning. Instead of chaperoning her to safety, the 3 policemen took turns to rape her, and the High Court and Supreme Court of Appeal denied her damages against their boss. Had it not been for Justice Maya’s lone voice on that SCA bench, the case would likely not have attracted the attention of the Constitutional Court and reversed. Had the woman no funds, or her legal team discouraged by the loss in 2 courts, our judiciary would have failed her. How many similar incidents of unresourced women go unreported almost everyday?

That is the state of South Africa’s constitutional democracy.

The controversy surrounding Minister Sisulu’s political assessment of South Africa’s constitutional democracy provides an opportunity for us all in the country – especially lawyers – to take stock of our constitutional democracy, assess how far we have come with it, subject it to stringent review of its shortcomings through public dialogue, come to grips with the failures of implementation of its lofty ideals, and chart a new path if our review should reveal that the fortunes of a more prosperous, egalitarian South African society lie elsewhere.

That begins with discouraging “thought policing” and censorship of socio-political views that do not find favour with some powerful forces in society. No one should have monopoly of thought or conscience or thought leadership in a constitutional democracy. Everyone should be free to express an opinion about the state of South Africa’s constitutional democracy, however unpalatable or even outrageous it may appear to some of us, subject only to the strictures provided for in the Constitution itself: incitement of violence, propaganda for war and advocacy of hatred. Absent any of these, there should be no censorship of free speech whether by a politician, a Judge, a vagrant, a civil servant, a practising lawyer, or any ordinary citizen concerned about the direction his or her country is taking.

That is what the state of South Africa’s constitutional democracy should be.