Remarks by the Minister of Justice and Constitutional Development, Minister Mmamoloko Kubayi on the occasion of an engagement with the National Press Club on 30 years of the Constitution
Unisa Graduate School of Business Leadership, Midrand
Programme Director
Deputy Minister of Justice and Constitutional Development, Andries Nel
The National Director of Public Prosecutions of South Africa, Adv Mothibi
The Head of Special Investigations Unit, Mr Lekgetho
Ms. Antoinette Slabbert: Chairperson, National Press club
Prof Mpho Ngoepe, DVC representative of the Vice Chacellor
Prof Paul Mudau: Associate Professor at Unisa’s College of Law | Department of Public, Constitutional and International Law
The Acting DG of Justice and Constitutional Development Ms Pillay Deputy
Government Spokesperson Mr William Baloyi,
Distinguished guests
Ladies and gentlemen
We are gathered here today to reflect and exchange ideas about the impact our constitution has made in moulding our democracy over the 30 years its existence. To mark this anniversary the Department of Justice and constitutional development has launched a yearlong commemoration of the 30 years of the adoption of the constitution under the theme “30 years of constitution: one constitution, one nation: reflect. renew. recommit.” Through this commemoration, we want to call on all South Africans to recommit to constitutional values, inclusive development, and shared responsibility for nation building.
Thirty years later, South Africans hold diverse and often polarised views on the impact of the Constitution on our society. Many celebrate its role in entrenching democracy, enabling landmark judicial decisions, protecting vulnerable groups, and serving as a global beacon of rights-based governance. Conversely, there are those who blame the constitution for the persistence of the socioeconomic challenges such as poverty, unemployment and inequality that continue to ravage some of own communities.
These debates underscore the Constitution’s living nature; it is not a static text but a framework for ongoing national conversation which affirms the need for a renewed commitment to its founding ideals. Where necessary and as our democracy evolves towards maturity, these conversations culminate in adaptation through amendments effected through democratic processes.
The 30th anniversary provides a timely moment for reflective celebration and critical engagement, assessing progress while identifying pathways to better realise its promise amid contemporary realities and recommitting collectively to realising the Constitution’s transformative promise.
The theme for today’s conversation, "30 Years of the Constitution: Progress, Challenges and Opportunities”, places a challenge on all of us to think deeply about what has been achieved, where the fault lines are and how to utilise what has been achieved as a foundation for entrenching a better society anchored on constitutional values.
To better understand how great an achievement the adoption of the constitution is and was, it is important to cast a glance at the depth from which we have risen to find ourselves today in a constitutional democracy.
In his address Royal Commonwealth Society, on 23 June 1986, the then President of the African National Congress, Oliver Tambo captured the essence of the fight against apartheid with the following words amongst others: “We are fighting a war against the apartheid system and its inhumanities, for the right to human in the land of humans”. The system of colonisation and later apartheid made the dehumanisation of the African people a central tenet amongst the tools contained in the arsenal of oppression. Apartheid did not merely discriminate, it institutionalised and systematised human degradation. Black people under apartheid were stripped of their dignity, impoverished and then shepherded into native reserves that were later turned into fake independent states.
The 1996 constitution is a living document in whose foundation we have built a democratic South Africa a foundation upon which we have been working hard to transform South Africa into a non-racial, non-sexist and prosperous country.
The Bill of Rights, contained in Chapter 2 of South Africa’s 1996 Constitution, is the cornerstone of the nation’s democracy, protecting all people and binding the government and private parties. It guarantees fundamental rights including equality, human dignity, life, freedom of expression, and assembly, along with socio-economic rights like housing, health care, and education.
With Regards to assessing the performance of our constitution, Tom Ginsburg and Aziz Huq, professors at the University of Chicago, in their paper titled ‘Evaluating Constitutional Implementation’ propose four external criteria against which to evaluate the performance of a constitution and I will turn to each in turn.
Firstly, they say that constitutions are sources of legitimacy. In this respect, one of key criteria in determining the performance of a constitution is whether or not it succeeds in creating legitimate structures and institutions.
Perhaps the most consequential achievement of the constitution has been the structural integration of the justice system itself.
Where once there were eleven separate departments spread across the Bantustans, there is now a unified framework. The Superior Courts Act 10 of 2013 rationalised the court hierarchy, bringing coherence to a system that had been deliberately fractured under apartheid. The Constitution Seventeenth Amendment Act of 2012 affirmed the Constitutional Court's apex status in all matters, affirming its role as the final arbiter of the Republic's supreme law. These reforms are, in themselves, expressions of the principle that no legislative or executive action, regardless of its political weight, sits beyond the reach of judicial scrutiny.
Furthermore, Chapter 9 of the Constitution recognised, with considerable foresight and accordingly established a set of independent state institutions whose specific mandate is to strengthen and sustain constitutional democracy. These institutions which include the public protector, South African Human Rights commission, etc. represent a deliberate constitutional choice to institutionalise oversight rather than leave the protection of rights to the discretion of those in power. They were built into the Constitution itself, rather than created by ordinary legislation, and this reflects a deliberate choice to implant oversight at the highest level of the legal order. These and many other institutions are a demonstration of how our constitution has enabled the creation of legitimate structures and institutions.
Secondly, they say that constitutions ought to succeed in channelling the inevitable conflict within a society between competing forces and ideologies into formal political institutions.
The Constitution of South Africa establishes a multi-party democratic system with regular, free, and fair elections managed by an independent Electoral Commission (IEC). The electoral platform has created a peaceful battlefield in which political parties and individuals who seek to attain political can compete for the votes. South Africa has held regular national, provincial and local government elections which have been free and fair. Different views, political or otherwise, are allowed, tolerated and protected by law. Tolerance and belonging, in this sense, are not symbolic, they are legal, lived, and enforceable. They mean that no one is invisible before the law, no one is excluded from its protection, and no one’s dignity is negotiable. They require recognising the equal dignity of those with whom we profoundly disagree.
Freedom of expression, association, belief, and conscience are the lifeblood of open societies, but they endure only where tolerance is actively cultivated and legally protected. Constitutionalism provides the framework within which such disagreements can be resolved peacefully and with dignity, through institutions, dialogue, and lawful processes rather than coercion or violence. In South Africa, we have strengthened this architecture through legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act, supported by Equality Courts, to give practical effect to our constitutional vision of unity in diversity. Sadly, as a country, citizens have yet to engage with these mechanisms for there be any major impact.
Thirdly, they say that Constitutions ought to ensure that institutions and representatives act on behalf of the people and not in a self-serving manner, thereby limiting agency costs. The preamble of the constitution says amongst other things that we are all enjoined to “Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.”
The electoral outcomes over the years have demonstrated that the people freely elect their representatives and in cases where representatives act in a manner that is self-serving the people are able to hold them accountable either through protests that are protected by the law or through their electoral choices. The will of the people has been the determinant factor on who becomes a public representative. Whether the electoral system currently in existence provides for optimal representation and accountability is a debate that has been ongoing and amendments have been made to our electoral system to reflect these conversations.
Fourthly and lastly, they aver that constitutional structures are required in order to address the provision of public goods which cannot be provided by citizens alone. The most tangible measure of a social contract between the state and its citizens is service delivery, water that flows through taps, lights that stay on, clinics that function, schools that educate, and roads that connect people and communities. We have extended socioeconomic rights such as electricity, water, houses, etc. to many poor households in line with the constitutional court ruling which held that the provision of socio-economic rights by the State is subject to the principle of progressive realization of these rights and the availability of resources. In many circumstances, these basics have failed us.
Load shedding, water shortages, collapsing municipalities, and deteriorating infrastructure are not mere inconveniences; they strike at the heart of public trust and confidence in the state. Corruption, persistent resource constraints, and uneven implementation of programmes and projects have each, in different measure, drawn the pace of delivery away from what the legal framework envisioned. In this connection we have already admitted that the law in our country has advanced with considerably greater speed and clarity than the material reality it was designed to transform. The fault does not lie on the framework but the administrative and financial conditions necessary to give it full effect have not been consistently sustained.
Ladies and Gentlemen,
Emerging discourse around constitutional interpretation and human rights is an opportunity for citizens, legal scholars, and practitioners to engage meaningfully with the law. Such engagements contribute to shaping future jurisprudence and policymaking, ensuring they resonate with the aspirations of the population. We need the academia’s rigorous research to provide the evidence base for policy development. Help us understand the impact of our laws through a critical, objective lens. Academic research was critical in drafting the 1993 Interim Constitution.
Universities served as "think tanks" for the creation of post-1994 policy frameworks, which later became the basis for government myriad White Paper policy documents. In their contribution to the discourse, the Human Sciences Research Council has published a book titled “The Future South Africa We Want: Democracy@30”. The book’s collection of research findings captures thirty years of democracy through the lived experiences of diverse South African communities. Moving from QwaQwa to Vuwani, Soweto, Langa, Luka, Platfontein, and beyond, the book focusses on citizens' reflections on progress, frustration, resilience, and aspirations for a better future. The narrative blends grassroots voices with scholarly analysis to offer a textured portrait of South Africa's democracy as both promise and struggle, framed within broader African and global contexts.
There are opportunities for academia to add to the research about our constitutional democratic experiment. As for the media, your role as the "Fourth Estate" is vital. We urge you to move beyond the headlines to provide deep, contextual reporting that educates the public on their rights and the complexities of governance. From the Watergate scandal to South Africa's State Capture investigations, the media has historically used its power to expose corruption and curb authoritarian overreach.
The media wields the power to amplify voices that are otherwise unheard or ignored. When strategically employed, its coverage holds the potential to galvanise responses and influence public policy makers. Unveiling human rights violations in the public domain empowers community members to exert pressure, holding both businesses and governments accountable, and offering an essential counter-narrative. As we commemorate the 30th anniversary of the adoption of the Constitution this year, we affirm that our future will not be built by forgetting where we come from, but by acting with courage on what we have learned. United by one Constitution, inspired by one shared destiny, and bound by a collective responsibility to one another, we reflect, we renew, and we recommit to completing the work of justice, restoration and nation building. I am looking forward to today’s deliberations as they will enrich our country’s constitutional discourse.
I thank you.
