The following Op-Ed is written by Sherylle Dass, Zimkhitha Mhlahlo & Tsukudu Moroeng of the Legal Resources Centre
In 1994, South Africa transitioned from an undemocratic apartheid state into a constitutional democracy governed by a Constitution which holds basic values and principles such as human dignity and equality. The Preamble of the Constitution of the Republic of South Africa, adopted in 1996, sets out the main goals of our Constitution: to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights, to lay the foundations for a democratic and open society in which government is based on the will of the people, to ensure that every citizen is equally protected by law, to improve the quality of life of all citizens, to free the potential of each person, and to build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.1 The success of any Constitutional Democracy thrives on these democratic values and promises a better life for all through the realisation of not only civil and political rights but socio-economic rights as well.
The Constitutional Court in the Raduvha case stated that “over two decades ago, we adopted our Constitution. In doing so we signalled a decisive break with our past – a ringing rejection of a history of denial of human rights to our people. We started an ambitious and laudable project to develop, nurture and infuse a culture of respect for human rights in all aspects of our lives. We all committed ourselves to a new and egalitarian society founded on values of human dignity, equality and freedom for all”.2
Despite promises by the state to improve the lived realities of our people through advancing a transformative constitution, this “egalitarian society founded on values of human dignity, equality, and freedom for all, remains elusive”. Whilst a constitutional supremacy guarantees civil and political rights, it does little to address structural inequality and economic apartheid. The struggle for the emancipation of black South Africans ended in 1994 and signalled the dawn of a new struggle for the economic emancipation and the realisation of socio-economic rights for all its people. The report card on South Africa’s performance in the last 27 years since the end of the first struggle, however, is abysmal.
The ideological belief that our Constitution is a symbolic bridge between our past and our future can only be truly transformative if there is an effective and accountable government that is committed to addressing structural inequalities, arising out of the underlying systems of oppression, inherited from the apartheid state, which continues to thwart the economic emancipation of historically marginalised groups.
The chasm between the rich and poor in contemporary South Africa is not inevitable. It is a consequence of policy choices, neglectful abrogation, and malignant violations of international and constitutional human rights that successive governments have made in South Africa, and which have served to effectively maintain inequality over time. The rise of authoritarian and populist politics, not only within factions of the ruling party the Africa National Congress but also in major opposition parties the Democratic Alliance and the Economic Freedom Fighters, fuel racial tensions, influence attacks on democratic institutions and the rule of law. This, and the absence of ethical leadership along with elevated levels of corruption, all serve to dilute the potential towards a fully transformative constitutional democracy that delivers on its promises of a better life for all South Africans.
1 Preamble of Constitution of the Republic of South Africa, 1996.
2 Raduvha v Minister of Safety and Security and Another  ZACC 24; 2016 (10) BCLR 1326 (CC); 2016 (2) SACR 540 (CC) at para 55
The Failure to Fulfil The Constitutional Promise
The transformative constitutional promise and the guiding principles were a starting point, not the final destination. While our democracy is arguably a young democracy, the state has failed to respect, promote, and fulfil key socio-economic rights such as access to education, housing and healthcare as well as failing to adequately implement land reform for most of the population. The socio-economic and spatial disparities in the present day resemble the disparities during apartheid – a testament to the continued legacy of apartheid laws, the effects of which the state has failed to reverse.
South Africa is regarded as one of the most unequal states, with one of the lowest life expectancies, in the world.3 The state’s failure to redress the legacy of apartheid spatial planning through progressive and transformative policy and legislative reform, for example, can be linked to the failing state of our basic education system and the inequalities in the provision of basic education in South Africa. The right to basic education is one of the most, if not the most significant fundamental right and is recognized as such not only within the wording of our own Constitution but internationally, as a foothold towards the achievement of other socio-economic rights essential for not only the development of the individual and as part of active citizenry, but for the development of the state and its economy. The Constitution has elevated this right above other socio-economic rights and declares that this right is immediately realisable and is not subject to progressive realisation. Access to education is one of the most effective solutions to develop the lives of poor South Africans.4
The South African education system during apartheid was heavily segregated by race, with white students benefitting disproportionately from funding and resource allocation. Apartheid spatial planning entrenched this segregation and created a delineation between white privileged schools and black schools. During the transition to democracy between 1990 and 1994, there was significant change in funding and resourcing to foster educational equity. However, equity was a concern for many since there were fears that “declines in the quality of these privileged schools would lead to ‘White flight’ where White students and White teachers would move to the private sector En-masse, resulting in a low-quality Black public system and a higher-quality White private system”.5 The compromise, to allay this fear, was to maintain the status quo, with the South African Schools Act of 1996 creating a safeguard that allowed public schools to charge fees so that they could maintain their level of resources and stay public, put crudely to maintain their privilege.
Despite the elevation of the right to education and the need to redress the inequitable two public-school apartheid system that heavily favoured the white minority, the State has, to a significant extent, maintained an unequal education system that now heavily favours the privileged minority at the exclusion of many black and poor learners. For example, the Department of Basic Education has failed to meet its 2019 deadline to eradicate mud schools and build enough classrooms to address the problem of overcrowding in public schools.6 Some public ordinary schools lack access to basic services such as water while some still use pit-toilets as their main ablution facilities.
Equally, laws regarding the spatial and urban planning of South Africa are a remnant of apartheid legislation and policy, upholding segregation and inequality in present-day South Africa. Planning laws both aid the advancement of white communities and hinder growth of black communities.
Similarly, the State has failed to make progressive and transformative reforms in access to adequate housing. Spatial justice for similar reasons remains elusive for the majority of black South Africans with the current configuration maintaining the privilege of those who benefited from apartheid spatial planning, and a fraction of middle-class black people being invited to the party. The foundations of the housing needs of South Africa’s urban poor are inextricably linked to apartheid spatial planning. Acknowledging this interrelationship is essential to seeking workable solutions or alternative approaches to meet the housing needs of vulnerable and marginalised urban inhabitants. The foundation of various cities in South Africa is testament to the inequality in the country, since they are built around the colonial ideologies that degraded African communities. While borders between cities, townships and rural areas were legally abolished, the effects of the Groups Areas Act still manifest themselves; affluent areas are populated by majority white people and the emerging black middle class with the poor and working-class stuck in congested informal settlements that lack adequate access to water, sanitation and other basic amenities that form part of the right to access housing. Much of the population who live in peripheries of cities live in inhumane housing conditions.
The provision of housing was identified as a priority of reconstructing the post-apartheid state through the Reconstruction and Development Programme (RDP) in 1994 and later, with the right to housing enshrined in the Constitution in 1996. However, the housing delivery backlog attests to failures, with many recipients of government-subsidised housing having been on waiting lists for more than 20 years. Driven by a plethora of factors, many have taken matters into their own hands by occupying pieces of unoccupied land, resulting in more informal settlements.
The state has not only failed to provide housing, but it has also purposely failed to respect property rights and, in many instances, violated constitutional protections against deprivation of property, destruction of homes and evictions of occupiers through concerted eviction operations undertaken by municipalities.7 These evictions are often reminiscent of brutal apartheid-era forced removals.
The failings of the state to address structural inequalities and redress apartheid systems of oppression was patently clear in their response to the COVID 19 pandemic. It would not be an exaggeration to say that the pandemic has deepened the inequality divide and will set the country back further in meeting its constitutional obligations and stabilising an already restless nation that is yet to benefit from promises made in 1994. South Africa’s first Coronavirus case was confirmed in March 2020 and the President swiftly declared a National State of Disaster, imposing strict lockdown regulations that limited movement, mandated non-medical interventions, and effectively shut down businesses and non-essential work. The lockdown had a profound impact on people’s livelihoods. The restrictions disproportionately affected the poor and working-class, burdening a section of the population that is are often reliant on informal work and informal trading. Small businesses that could not run from homes or employees who had no access to the internet to enable them to work from home, were effectively excluded from the economy. In some metropolitan municipalities, informal traders were criminalised and victimised by law enforcement agencies for operating during the lockdown and the COVID 19 mitigation measures neglected informal traders’ constitutional rights to trade even when conventional retailers were allowed to trade during adjusted levels of the lockdown. The government’s solution to the fiscal impact on low-to-no-income citizens was a monthly R350 social relief grant, available for six months. The majority of South Africans (who received other forms of social grants) and non-nationals were unable to access this grant.8 It was virtually impossible for many South Africans living in informal settlements, and poor or marginalised communities to adhere to self-isolation guidelines and COVID 19 protocols due to the ratio of occupants in their homes and their financial constraints.
Not only did the most disfranchised groups bear the brunt of the lockdown’s economic downturn, but they also suffered targeted evictions from, and the demolition of, their homes in various informal settlements. Given the loss of jobs or income due to the lockdown, many were unable to meet their basic monthly commitments such as paying rent. Backyard dwellers who account for 35% of all rentals in South Africa (the equivalent of 1.25-million households) also suffered and some were forced to occupy pieces of unoccupied land and build homes on the peripheries of cities, often on land not suitable for habitation. These informal settlements also have no access to water or proper sanitation, despite both amenities being crucial in combating the spread of the virus. While the government had declared a moratorium on evictions during the National State of Disaster, some municipalities persisted with brutal and often violent evictions carried out by their anti-land invasion units and law enforcement officials, resulting in increased homelessness, destitution, and an increased risk in contracting the virus.9
Schools were also closed, impacting greatly on learners from poor communities. Whilst schools in more affluent areas were able to continue to provide learning through online platforms, many learners without access to the internet and data did not access to any form of learning during these closures and were effectively left behind. Children in public schools who were reliant on school feeding schemes were also impacted since the National Schools Nutrition Programme was halted due to the lockdown. This is the only meal that many learners receive in a day. According to a report by the South Africa’s National Income Dynamic Study Corona Virus Rapid Mobile (NIDS-CRAM), an estimated 750 000 learners aged between 7 years and 17 years in South Africa may have dropped out due to the pandemic, making this the highest dropout in 20 years.10
The COVID 19 pandemic in South Africa happened against the backdrop of a crippled public health system not equipped to deal with the eventual fallout from the virus despite the majority of South Africans not having private health insurance, and were therefore, solely dependent on this already-failing public health care system.
Amid a gradual lack of confidence in the state meeting its constitutional obligations and a growing frustration in the lack of basic service delivery, the rise of authoritarian and populist politics gained momentum since the latter part of former President Thabo Mbeki’s tenure and throughout former President Jacob Zuma’s two terms in office. Former President Zuma’s tenure was beset by allegations of corruption and state capture, leading to his resignation from office prior to the end of his second term, culminating in the appointment of President Ramaphosa to office. The transference of power was by no means amicable and the splitting of allegiances between the supporters of the former and current President was inevitable. President Ramaphosa promised decisive action against the perpetrators of state capture and committed to exorcizing corrupt leadership within the ANC, causing many within his own party to intentionally undermine efforts to hold those responsible for looting state coffers and state capture, accountable.
Within this context and with the country still reeling from the devastation of the COVID 19 pandemic, the country was on a knives edge with the potential to implode. The Judicial Commission of Inquiry into State Capture, ironically established by former President Zuma, was meant to gather evidence of corruption against state officials complicit in the Gupta family capture of key state institutions, fraud and other related corrupt activities. Despite running for three years and gathering at least one exabyte (1 000 000 MBs) of evidence, there has not been a single prosecution of the alleged transgressors. Former President Zuma was called to testify before the Commission at various stages of its empanelment. His legal strategy appeared to delay, frustrate and ultimately, refuse participation in the proceedings, culminating in the Constitutional Court ordering him to appear and later finding him guilty of contempt of its order and sentencing him to 15 months in prison. Prior to this, the former President, playing from the populist playbook, set the foundations to change the narrative around his implication in state capture, his removal from office and his ultimate defiance of the Constitutional Court. He was a man persecuted by agents within his own party trying to tarnish his reputation and remove him from the party. To succeed he needed to discredit the independence and impartiality of the Judiciary, attack the values and principles of the rule of law and taint the intentions of the State Capture Commission. This tactic failed in keeping the former President out of jail but did negatively change the discourse in the public domain and garnered enough public support to destabilise and hold the country hostage for a painful two weeks.
The recent unprecedented instances of violence and unrest that occurred in KwaZulu-Natal and Gauteng, followed by the stoking of racial tensions in the former, were not sporadic or events of happenstance This was a well-planned strategy to attack democratic institutions and systems that strengthen the rule of law and accountability, in response to the imprisonment of a populist former President. A recent report by the Centre for Analytics and Behavioural Change which analysed Twitter traffic before and during the recent unrest found high tweet incidence using hashtags such as “#FreeZumaNow”, “#ShutDownKZN” and others. They found that this activity met the CABC criteria for inauthentic behaviour, and that 12 Twitter accounts, within a month, sent 102 000 tweets with more than 14 000 using hashtags and calling for South Africa to be shut down and Zuma to be released. The report notes that not all the tweets were incendiary in nature or calling for unrest and riots. Some engagements between these 12 accounts were from ordinary people but the report states that the Twitter activity is “typical of sophisticated disinformation activities, where credible opinion and media is retweeted alongside conspiracist innuendo and disinformation to create a smokescreen against easy detection.” The report concludes that “the weight of the evidence presented in the report [has] led us to the conclusion that it is likely that coordinated narrative manipulation took place in this conversation.”
This is not the first time the former President Zuma has been linked to the mobilisation of online trolls and bots with the main aim of subterfuge and misinformation aimed at inflaming racial tension and changing the dominant narrative away from his transgressions and association with the Gupta family to the entrenchment of “white monopoly capital” as responsible for black poverty in the country. This campaign was driven by the now-defunct Bell Pottinger, which leveraged the power of social media to strategically manipulate and influence populist politics.
The incitement of violence against ethnic and racial groups in South Africa is not a new phenomenon; the apartheid government intentionally propagated the “divide and rule” strategy, playing one racial group against another. The use of social media to amplify this strategy has not only been played out and manipulated by politicians in the recent call to violence against South Africans of Indian descent but also has been used to demonize and criminalise non-nationals and fuel xenophobia. The #hastags such as #PutSouthAfricaFirst is misleading until you read the tweets calling for the genocide of all non-nationals.
It is therefore overly simplistic to pass off the recent violence, unrest and racial tensions as a symptom of the impact of the coronavirus, poverty, joblessness and systemic racism. All these are very real issues that still persist in our constitutional democracy. They must and should be addressed urgently to give meaning and content to our constitutional values. The insurrection and unrest must be seen to lie with the state’s failure to carry out its constitutional obligations, and its failure to act decisively in the protection of our democratic institutions, which has opened the door to populist politics influencing dangerous narratives that weaken our democracy.
3 The World Bank, 2021 ‘South Africa county overview’. Available at: https://www.worldbank.org/en/country/southafrica/overview (accessed on 16 August 2021.
4 Lashmi R ‘Education as an instrument of social change’ (2018). JTIR Journal, vol 5.
5 Equity: A Price Too High to Pay?, Spaull 2019
6 Parliamentary Monitoring Group available at: https://pmg.org.za/committee-meeting/29168/ (accessed on 13 August 2021).
7 South African Human Rights Commission and Others v City of Cape Town and Others (8631/2020)  ZAWCHC 84
8 IOL News ‘Grand Parade Informal Traders take the City of Cape Town to Court’. Available at: https://www.iol.co.za/news/south-africa/western-cape/grand-parades-informal-traders-take-city-of-cape-town-to-court-48567127 (accessed on 13 August 2021).
9 GroundUp ‘Lockdown blamed for desperate land occupation in Cape Town. Available at: https://www.groundup.org.za/article/lockdown-blamed-desperate-cape-town-land-occupation/ (accessed on 13 August 2021).
10 NIDS -CRAM Wave 5 Synthesis Report, July 2021. available at: https://cramsurvey.org/wp-content/uploads/2021/07/1.-Spaull-N.-Daniels-R.-C-et-al.-2021-NIDS-CRAM-Wave-5-Synthesis-Report.pdf (accessed on 11 August 2021).
For about a century before 1994, thousands of activists dedicated their lives to ensuring that South Africa transformed into a state governed by democratic values and inalienable rights. This achievement of this, would set South Africa on a path where its citizens would live freely, equitably and have equal opportunity. This was the dream of the constitutional project. The reality has been quite different. South Africa is undoubtedly headed towards becoming a failed state. This could be a decisive period in South African history; reminiscent of the freedom struggle, this new struggle requires bold and brave leadership. The state needs to engage the emergency brakes and reverse its failings of the last 27 years. The only way to shift the moral compass back to the values and principles that were promised at the dawn of our democracy, requires ethical and harmonious leadership, transparency and accountability and the political will to redirect this ship toward a truly transformative constitutional democracy.
Issued by the Legal Resources Centre – Media Enquiries: Tel: 068 584 2442 / Email: email@example.com