"How the South African Constitution furthers the objectives of socio-economic transformation"
Deputy Minister in the Department of Land Affairs and Rural Development, Dr Joe Phaahla
President of Cosatu, Mr Sdumo Dlamini
President of Congress of Traditional Leaders of South Africa (CONTRALESA), Honourable Patekile Holomisa
BMF President, Mr Jimmy Manyi and all leadership
Members of the legal profession
Leaders in business and civil society
Good morning to you all.
We meet just a few days before we mark Worker's Day, and two days ago we celebrated our sixteenth year of freedom. The Freedom Day celebration was an occasion that reminded us of what a special and unique people we are. We emerged from a horrible past of division and pain, embraced the present and began to work for the future together.
Our Constitution's preamble emphasises that South Africa belongs to all who live in it, united in our diversity. Guided by the Constitution, we have to create a society that has equal opportunities for all, in all spheres; political, social, cultural or economic.
We have one of the most impressive and progressive Constitutions in the world. It has laid a good foundation for our objectives of creating a non-racial, non-sexist, democratic, equal and caring society. Our Constitution is also unique in that it entrenches socio-economic rights, which is one of the key subjects of discussion in this symposium.
The symposium provides an opportunity to reflect on the Constitution and see how we can promote and strengthen it, as a sacred document that guides our constitutional democracy. It is also an opportunity to explore what else we could be doing to further enhance the enjoyment of the rights enshrined in the Constitution.
Let me emphasise from the onset that our Constitution is based on a very solid foundation. There has been a long process of developing the human rights culture, leading to a rights-based Constitution. We can trace the seeds of such a progressive Constitution back to the middle of the twentieth century, to the African Claims document of the African National Congress, adopted in 1945.
The document created a Bill of Rights, demanding equal opportunities and the right to vote, equal education and a share in the material resources of the country. The link between social services and democracy found further expression in the Freedom Charter adopted in 1955 which also contained a Bill of Rights for a democratic South Africa.
The Freedom Charter is an important historical document of national pride, and forms the underpinning of socio-economic rights contained in the South African Constitution.
In 1988, the ANC published the constitutional guidelines for a democratic South Africa, further entrenching the proposal for a Bill of Rights, containing socio-economic measures to address the transformation of South Africa. Later in 1990, following the announcement of President Nelson Mandela's release, the ANC tabled its Bill of Rights for a new South Africa.
These historic documents formed the basis of negotiations in the Convention for a Democratic South Africa and later in the Constitutional Assembly finally adopted the Constitution on 8 May 1996. In one of its notable submissions to the drafting committee of the Constitutional Assembly, the ANC submitted the following on its position on socio-economic rights:
"The new Bill of Rights cannot therefore shy away from including within the scope of its protection, fundamental rights, which, while posing difficulties in enforcement, reflect important principles in the promotion of a society based on justice and equality, a society which seeks to redress the imbalances of the past".
Section 25(5) requires of the state to 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.
To meet this Constitutional obligation, one of our priorities is to ensure that land reform through redistribution and restitution, is more coherently linked to the creation of livelihoods for the poor.
Land is linked to development in rural areas. We have recognised that in order to move forward decisively with the land redistribution programme, significant changes will have to be made to the willing-buyer willing-seller model of land redistribution.
Government is investigating less costly alternative ways of land acquisition, by engaging with all stakeholders within the sector. The general view is that the willing-buyer willing-seller model has not worked adequately thus far. We are working on a much more pragmatic formula to land redistribution.
It will be a formula that should address the issue as part of our country's ongoing effort at national reconciliation. It should also not be seen as a super profit making business venture but one which assists to achieve goals faster, within the ambit of the law.
Sections 26(2) and 27(2) place the state under an obligation to take reasonable legislative and other measures, within its available resources to achieve the progressive realisation of the rights to have access to adequate housing. Other sections deal with health care, sufficient food and water as well as social security including, if they are unable to support themselves and their dependants.
The socio-economic rights of children include the right to basic nutrition, shelter, basic health care services and social services.
Children's socio-economic rights are thus also interpreted as subject to reasonable measures and are subject to the state's available resources. These rights are also not immediately realisable, but need to be progressively realised by the state.
Next month we will focus strongly on the rights of children as we mark Child Protection week. All sectors including government will be looking at how these rights can be used to protect children further. Amongst other issues in the celebrations, we will be highlighting the possible unintended consequences of the 2010 FIFA World Cup for children.
Such tournaments, unfortunately, also open up opportunities for people who engage in child trafficking and other crimes to target children.
Naturally, our Constitution does lead to some challenges. The socio-economic rights are enforceable to an extent, and the power is vested in the judiciary to enforce these rights.
There is always a concern that the courts will encroach upon the domains of the legislature and the executive, and breach the doctrine of the separation of powers. The main argument raised in this regard, is that the inclusion of socio-economic rights may result in courts making orders or judgments which have direct implications for the budgets of government departments.
However, we should also bear in mind that when a court enforces civil and political rights such as equality, freedom of speech or the right to a fair trial, the order it makes will also often have such implications.
Therefore we cannot single out socio-economic rights as the only area of potential conflict among the branches of the state.
As the executive, we have always underlined our respect for the independence of the judiciary. An independent judiciary is one of the hallmarks of our Constitutional democracy. We therefore take a view that we should not be rigid in our definition of the doctrine of the separation of powers. This would limit the potential intervention by the judiciary to protect socio-economic rights.
We need to allow the poor in particular, access to justice, and this is one avenue they can use. The judiciary, executive and legislature therefore need to keep channels of communication open, bearing in mind that the central beneficiaries of this Constitution should be especially the workers and the poor who had no access to such rights before.
Ladies and gentlemen,
When we talk of transformation, we cannot ignore the economy. We are convinced that the material conditions that necessitated the promulgation of laws such as the Broad-Based Black Economic Empowerment (BBBEE) Act, Employment Equity Act and the Labour Relations Act have not yet been fully addressed.
The overwhelming majority of our Black population still lags behind in terms of:
* ownership of productive assets
* access to capital and financial resources
* access to quality education
* overall levels of income and wealth.
We want a transformed economy that will be characterised by high growth rates, low levels of unemployment and the enhancement of economic participation by the majority of South Africans. Broad-Based Black Economic Empowerment (BBBEE) is therefore an integral part of every economic policy that government has put in place.
We have made substantial progress in this regard. For example, government policies such as black economic empowerment and affirmative action had contributed to the growth of South Africa's black middle class by 2.6 million in 2007.
However, we have not yet succeeded in addressing the structural economic and social inequalities in our society. I recently appointed a BBBEE Advisory Council. It will greatly assist us to take our transformation programmes forward with regards to BBBEE. We need to identify where the current bottlenecks are in implementation, and eliminate the unintended consequences.
BBBEE should be genuinely broad-based and promote the ownership and control of productive assets by black people, women, youth and people with disabilities. We cannot allow an abuse of the policy to empower just a few. We also want government procurement opportunities to be actively used to promote the economic development of our people.
As a priority, we are working to harmonise all government procurement policies and ensure that they are aligned with the BBBEE Act and the codes of good practice. The unintended consequence of fronting is also still prevalent and seeks to defeat the objectives of BBBEE. We must work together as various sectors to expose and eradicate this practice wherever it occurs.
Compatriots,
When we celebrate our progressive Constitution we must also look at the impact of the rights based culture on the workers of our country, especially as we head towards Worker's Day. We have since the advent of democracy enacted legislation that protects workers, and which create a machinery to negotiate wages and working conditions.
We have passed laws which have enabled the setting of minimum wages for domestic workers, farm workers, hospitality, taxi workers and security sectors and established maximum hours of work for all. It is one of the positive attributes of our Constitution that workers can enjoy such rights and freedoms.
Going forward, we must protect our Constitution from abuse as South Africans. We have noticed in recent months a tendency to use the Constitution by some parties to block transformation, or to seek to reverse decisions made by the executive, through endless court actions.
The Constitution should be used for protection when there are genuine grounds, not for petty politicking and to score cheap political points.
It is a sacred document that should be respected by all. We also cannot abuse our progressive Constitution to maintain glaring inequalities.
Overall, legal and human rights activists, academic institutions and individuals need to contribute meaningfully to building strong foundations for constitutionalism, democracy and human rights for the present and future South Africa.
We owe it to future generations to ensure that this Constitution continues to protect the rights of many, especially the poor and marginalised. I wish you well with the symposium and look forward to receiving the report following the vibrant debates on such an important topic.
I thank you.
Issued by: The Presidency
29 April 2010
Source: The Presidency (http://www.thepresidency.gov.za/)
