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Keynote Address by Minister Lamola at the Limpopo Provincial Symposium as part of Celebrating the 25th Anniversary of the Constitution, 30 August 2022

Judge President Ephraim Makgoba
Honourable Stan Mathabatha: Premier Limpopo
Prof Mahlo Mokgalong: Vice Chancellor- University of Limpopo
Distinguished Guests
Ladies and Gentlemen

This year marks 28 years since the dawn of freedom and democracy in South Africa.  The rule of law is a golden thread that runs through our relatively young,  yet revered constitutional democracy as it has ensured that the Constitution is effectively applied and that the fundamental rights contained in the Bill of Rights of the Constitution are protected.

The constitution is a transformative document which if properly used can enable us to achieve an equal and egalitarian society. The constitution enables us to progressively achieve the socio economic rights entrenched in the constitution.

All spheres of government have an important role to play in the development of the constitution. Academia also has a critical role to play in the development of the constitution through research and academic papers. We view today’s event as a key interface between the key role players in state craft to enable us to take stock of the road we have traveled thus far and to plot a way forward in our path of constitutional development.

 On 27 April 2022, in his keynote address during the commemoration of Freedom Day in Mpumalanga, President Cyril Ramaphosa made the following significant remark, among others:

“In our free society, anyone can approach our courts for recourse, for the enforcement of their rights, and to challenge any executive decision.”

This year’s Freedom Day commemoration was observed under the theme “Consolidate our Democratic Gains.”

The Judiciary has played a critical role to ensure that our constitutional democratic gains are consolidated and continue to play an important role in fulfilling freedom, rights and obligations as outlined in the Constitution.

This is a critical role in ensuring that the state respects, protects, promotes, and fulfils the rights contained in the Bill of Rights towards the broad constitutional vision of a democratic and open society in which Government, is driven by the will of the people. 

Every citizen is equally protected by law. It is for this reason and against this backdrop, that section 165 (4) of the Constitution of the Republic of South Africa enjoins organs of State, through legislative and other measures, to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility, and effectiveness.

The Constitution weaves together all the three arms of the state, it is this interwoven dispensation of accountability that creates an environment in which we should deliver services to South Africans.

Our Constitution is the soul of our nation, state and the persona of its people.  It is mind full of dreams and a past history of its efforts to keep it alive!

The architectures of the apartheid regime suppressed the majority of Africans without any sympathy. It became necessary to change this regime to a dispensation that will give equal treatment to our people and the respect of the rule of law.

South Africans have chosen a democratic state that its fundamental objectives are embedded in constitutionalism.

Constitutionalism is descriptive of a complicated system, that is deeply embedded in historical experience of the people, which subjects the officials who exercise governmental powers to the limitations of a higher law, which is a constitution.

David Fellman, a Constitutional Scholar shares the view that constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials that turn to abuse their authority or powers.

Throughout the literature dealing with modern public law and the foundations of statecraft, the central element of the concept of constitutionalism is that in political society, government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme law.

Sir John Dalberg-Acton, 8th Baronet, is best remembered for the remark which he made in a letter to an Anglican bishop , "Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men…",

It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

A distinction was drawn by British constitutional scholar A.V. Dicey in assessing Britain's unwritten constitution. Dicey noted a difference between the "conventions of the constitution" and the "law of the constitution".

The "essential distinction" between the two concepts was that the law of the constitution was made up of "rules enforced or recognised by the Courts", making up "a body of 'laws' in the proper sense of that term."

In contrast, the conventions of the constitution consisted "of customs, practices, maxims, or precepts which are not enforced or recognised by the Courts" but "make up a body not of laws, but of constitutional or political ethics".

A constitution plays a significant role in a society, it is a guiding document, it must be an enabling document. It must enable the legislative authority to legislate laws that will enhance equity in society, promote socio-economic rights.

It has never been the intention of the drafters of the constitution that it be a stumbling block in developing the lives of our people.

Our constitution is now 25 years old and we have to constantly assess if it still fulfils demands of the present society.

While assessing the relevance of the constitution, the importance of public reasons must be emphasized. The constitution therefore is a political act that in secularized societies allows the paradoxical self-legitimation/self-foundation of power

But, we cannot deny the fact there are a lot of changes which occurred in past years. Times are not static, time changes and therefore with time, life of a nation changes. The needs of the nation are dynamic, organic and living; its political, social and economic condition changes with time and advancement in technology.

It is not uncommon for nations to rewrite their constitutions in response to changed circumstances or change of ideas or need within the society.

Although we have a very robust Constitution, the basic framework of our constitution is very much suited to our country.

But constitution cannot provide for all eventualities, so the need to bring reform in the constitution arises.

It is from the above premise that in-terms of section ?? of the Constitution, the Constitution must be reviewed every year. The constitution is not static. It is a transformative document. So far our constitution has been amended 17 times since the advent of our democracy in 1994.

Unfortunately the 18th Constitutional amendment could not go through as we could not master the two third majority to effect a Constitutional amendment. The text of the amendment proposed by the ANC was opposed by all the opposition parties on the right. The text was also opposed by the opposition parties on the left. The text’s aim was to make explicit what is implied in the Constitution that to expropriate without Compensation in certain circumstances.  The EFF argued for an expropriation without compensation and putting the custodianship of all land under the state. The ANC could not agree to this as it would have meant that we would have deprived all South Africans their right to own land, black, Indians, coloureds and whites.

Black people in Seshego, Mankweng, Thohoyandou, Lenyenye, Makgwelereng, Lebowakgomo with a stroke of pen, were going to be tenants of the state, which would reflect the apartheid system  where our people were turned into perpetual minors of the state.

One of the legacies of apartheid which is deeply entrenched in our society today is the homeland system. The now repealed Bantu Homeland Citizenship Act stipulated that all African South Africans were citizens of one of the homelands, even if they lived in the 'white' Republic. 

The Bantu Homelands Constitution Act empowered the Prime Minister to devolve self-government to the homelands. In 1971, self-government was granted to Ciskei,  and Bophuthatswana; Lebowa, Gazankulu and Venda received self-government in 1973. Only Transkei, Bophuthatswana, Venda and Ciskei (the so-called TBVC states) ever went on to take the so called independence.

As result, to this very day, our Constitutional democracy still has to grapple with various manifestations of ethnic nationalism.

One of the greatest writers and thinkers of the liberation struggle Comrade Mzala Nxumalo famously argued that this homeland system had the effect of reviving a “cultural” liberation movement which fell within the philosophical bounds of the apartheid separate development program and in this way conformed to the ethnic foundations of the homelands system.

Our post-colonial order recognizes the importance of culture by protecting the right of individuals to participate in a cultural life, to the collective enjoyment of culture, and to be free from unfair discrimination based on culture.

It should be noted further that although the Constitution affirms cultural communities, the rights vest in individuals rather than groups.

In the new South Africa, black South Africans are now citizens of South Africa, not tribal subjects tied to ‘homelands.

The practical effect is that the right to equality is now firmly entrenched in our society.  There is no race which is more superior to another, neither is there a cultural group or practice which is more superior to another.

This has had a positive effect of the evolution of cultural practices in terms of customary law.

The Constitutional Court in Alexkor v Richtersveld Community said customary law must be recognised as “an integral part of our law” and “an independent source of norms within the legal system.”  It is a body of law by which millions of South Africans regulate their lives and must be treated accordingly.

One the issues which have been brought before the courts, in particular the Constitutional Court, is the status of rural women in terms of customary law.

Our courts have taken a position that our Constitution enables them to develop not just common law, but also customary law.

We have seen in recent history that this approach has had a major impact here in Limpopo.

In the matter of Shilubana v Nwamitwa, one of the questions which the Constitutional Court had to answer was whether traditional authorities had developed their law in terms of the Constitution? One of the milestones of the court was the installation of a woman as a chief.

In its enquiry, the court made it clear that section 211(3) of the Constitution demands that courts apply customary law where it is applicable.

The importance of equality in our society has been repeatedly emphasised by the Court.  The remarks of Ngcobo J in his concurring judgment in Bato Star sum up the position:

“South Africa is a country in transition. It is a transition from a society based on inequality to one based on equality. 

This transition was introduced by the Interim Constitution, which was designed to ‘create a new order . . . in which there is equality between men and women and people of all races so that all citizens should be able to enjoy and exercise their fundamental rights and freedoms’. 

This commitment to the transformation of our society was affirmed and reinforced in 1997, when the Constitution came into force. 

The Preamble to the Constitution ‘recognises the injustices of our past’ and makes a commitment to establishing ‘a society based on democratic values, social justice, and fundamental human rights’. 

This society is to be built on the foundation of the values entrenched in the very first provision of the Constitution.  These values include human dignity, the achievement of equality and the advancement of human rights and freedoms. 

The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the Constitution. 

Our constitutional order is committed to the transformation of our society from a grossly unequal society to one ‘in which there is equality between men and women and people of all races.

Former President Thabo Mbeki was correct when he said: “We must never allow that anything diminishes the importance and unquestioned excellence of such a noble product, the constitution, of the immense sacrifices made by millions of our people”.

I thank you.