The road to a better constitution (VI)

23 April 2020

This is the sixth and final article in a series on South Africa’s constitutional dispensation. The previous article can be read here:

The previous five articles sought to debunk the specious constitutional gospel and expose the flaws of the South African constitutional order. These are not mere surface flaws, somehow relating to mere erroneous applications of the Constitutions. They are inherent. Hence it is not true that we have a laudable Constitution, which only happens to be spoilt by a little bad interpretation and application. No, the bad application derives directly from the Constitution’s inherent weaknesses.

The reason why the courts, more specifically the Constitutional Court, are not an adequate check on and balance against the governing party (in the legislature and the executive) is not that judges in South Africa by coincidence act as agents of transformationism. It goes deeper than that; it is an inherent characteristic of the highest courts that they cannot be that check and balance, especially when it comes to ideological questions. It is because, as shown in the fourth article, the highest court together with the governing party constitutes part and parcel of one and the same governing elite committed to pursuing the same ideological goals.

That is why, as shown in the fifth article the Constitutional Court ascribes meanings to constitutional rights which promote transformationism, regardless that violate the legal interests of (members of) minority communities. Owing to the extreme nature of the ideology of transformationism, this phenomenon is more pronounced and intense in South Africa.

For an adequate constitutional order – one truly equipped to secure justice for all, including all communities – one needs much more than individual rights and much more than a genuine and smoothly functioning judiciary. These things are only some of the many essentials for a sound constitutional order.

Powers for communities; not only rights for individuals

For a sound constitutional order, the emphasis should also be placed on powers vesting in self-governing communities and autonomous institutions of civil society and the business sector. Owing to the constitutional gospel with its exclusive pre-occupation with individual rights and the judiciary, almost complete ignorance prevails about the essential importance of powers for communities and of organised formations of civil society as an essential element of a sound constitutional order.

Autonomous communities

Communities, more specifically cultural communities with the desire and ability of self-government – taking and executing decisions on their own affairs – must have the constitutionally allocated power to do so. This makes obvious sense. It corresponds with the basic tenet of self-government inherent in democracy. It also corresponds with personal self-determination of adult persons relating to their personal lives.

What is more, is that this principle of self-government harks back to the very roots of our own political tradition, more specifically to the thinking of Johannes Althusius. Already back in 1602 in his Politica – Politics, methodically explained with religious and profane examples, Althusius developed a cogent argument for federalism. In his work he also made a comprehensive plea for self-government. Since that time, and especially over the last thirty years or so the case for self-government has been argued in considerable detail and from various vantage points in political writings, political philosophy and in juridical works.

Presently, on close analysis it is only extreme leftist, so-called progressives, such as the ANC who reject the merits of self-government. Inspired by the ideology of transformationism everything must be centralised – dominated from the centre. The supposed majority view (or so-called general will) as articulated by the ruling party, must exercise despotic control over minority communities and minority communities must disappear as they are absorbed into the majority – a view propagated by Jean Jacques Rousseau and Friedrich Engels and reflected in the ideology of transformationism.

Accordingly, there is self-government for the majority yet no self-government for the condemned minorities. There is majority rule for the majority over the minority and a program of liquidation – and dissolving of the minorities. This is obviously repugnant to the most basic tenets of justice and democracy.

Since the South African Constitution does not provide for the allocation of power to communities, and finally centralises all power in the majority, it precisely paves the way for domination (and liquidation) of the minorities. As we have shown individual rights cannot fend off this injustice, because the highest courts interpret rights in conformity with the goals of transformationism and in consequence are hostile to the legal interests of (members of) minority communities.

Once appropriate powers of self-government vest in minority communities, the opposite obtains. These powers (unlike rights) are not subject to the interpretive authority of the courts. In that case political authority simply vests in the governing structures of minority communities, thus affording these communities the competence of self-management.

Flip Buys’ book Op pad naselfbestuur (The road to self-governance) (with an important preface by illustrious historian, Hermann Giliomee), published last year in September, represents an important reorientation of popular constitutional thinking in South Africa (arguably specifically among Afrikaners) as well as for the direction into which efforts should be channelled – away from the futility which is often accompanied by the emphasis on individual rights and into the (opposite) direction of the cultivation of autonomous political authority for communities.

The actual achievement of self-government is an enormous challenge. This is dealt with in the last part of this discussion.

Institutions of organised civil society

However, autonomous powers and self-government go beyond that. Not only cultural communities, but institutions of civil society must also be vested with autonomous powers to govern their own affairs free from governmental instructions or interference.

The category of institutions of organised civil society include the widest spectrum of organised spheres: universities and other educational institutions, the professions and other occupations, organised business and individual business enterprises, churches, the media, employers’ organisations, trade unions, consumer organisations, cultural organisations, sports bodies, interest groups, charity organisations, pressure groups and any other formation of civil society.

It is essential for each of these institutions to have its own autonomous powers, thus allowing them to be self-governing, free of state interference.

They have to be free institutions, thus to prevent them assuming the character of state departments, that is, to be state-departmentalised and conscripted to the state ideology under the command of the governing elite. Hence they must not descend into docile agents of transformationism as is to a considerable extent the case in present-day South Africa.

I briefly deal with four sets of institutions.

-       Universities have a long history of autonomous government, dating back to medieval times. As a result of the present ideology of transformationism, South African universities have however, to a notable extent, assumed the character of state departments. Rectors morph increasingly into deputy director generals, while senior university officials assume the character of senior public servants, executing the dominant ideology. By virtue of the ideology of transformationism, this is increasingly the case in South Africa.

-       Professions such as the legal profession must autonomously manage the profession in question, thus dealing with issues such as standards for admission to the profession, training and quality control of professional services. The profession in question, rather than the governing party, government or a state department is after all best positioned to judge on these matters. The same obtains for the other professions and trades. However, on grounds of a raft of statutory measures premised on transformationism, the governing elite has to a considerable degree gained control over the professions, causing the professions to be state-departmentalised.

-       The business sector, with everything included in that, is clearly not primarily a statist issue. Hence, business activities in each facet of the business sector have to be governed autonomously. As in the case of the professions, the participants in each sector are likewise in the best position to conduct the management of these sectors.

The best mode of control of the quality of education at educational institutions and of the quality of goods and services offered by the professions, trades and the business sector, apart from the professions and institutions themselves, is the public to whom these goods and services are presented. This control is exercised individually and by consumer bodies and the like. To the extent that the state might have a role to play, it is at best secondary.

-       Churches as institutions free from the command of worldly powers have a long history going back to medieval times. The primary activity of churches is certainly to be servants of the divine gospel. This, however, is not where it ends, because they also have an important truly constitutional responsibility. For the sake of good public order and in defence of justice, churches in conjunction with other formations of civil society, have to guard against political authorities abusing their power. Therefore, churches must not be state-departmentalised; thus investing the dominant state ideology with some religious flavour and then join forces in the promotion of such ideology. If churches do that, they would seriously renege on their constitutional responsibilities.

Checks & balances

Many people are exasperated when hearing the phrase, “checks and balances.” They view it as a phoney code phrase exploited in particular during the constitutional negotiations of the 1990’s for conjuring false guarantees that the new Constitution had all the mechanisms for guarding against the abuse of power and safeguarding the interest of minorities. The judiciary, vaunted as the most magnificent of all the checks and balances, in the meantime proved not to be that cogent a check and balance at all. The fourth and fifth articles in this series explained the reason why that is so.

This, however, does not mean that one should doubt the importance of checks and balances altogether. Genuine checks and balances are in fact indispensable for a sound constitutional order. The primary function of a constitution is to safeguard public order and justice for all – all individuals and all communities. Charming phrases, pronouncing ideals and principles alone cannot achieve that. Something else, of essential importance is called for. That is that power must be diffused and that centres of power have to be mutually balanced. Wielders of power – government – must be constrained.

Governmental power must always be balanced by counter-power. Thus American founding father, John Adams proclaimed: “Power must be opposed to power, force to force, strength to strength, interest to interest as well as reason to reason.” Government must never be in a position to do whatever it pleases; not only because it may not; but more specifically because it cannot. It must always be under pressure to make concessions and to compromise. In that way the constitutional order would work for the general public good, instead of catering only for the sectional interests of government and its support base.

In contrast to what was proclaimed in the 1990’s and thereafter, the courts, as explained in the fourth and fifth articles fall way short of adequately acting as a check and balance. Neither can the so-called independent and impartial bodies under chapter 9 of the Constitution perform this responsibility.

Checks and balances are precisely constituted by institutions of civil society, referred to immediately above. Institutions for the self-governing of cultural communities, also safeguard potent checks and balances, because such self-governing institutions, are well-quipped to fend off assaults on the existence and well-being of such communities effectively – something that individuals on their own are not capable of.

Whether or not there should be checks and balances, is not an issue at all. They are essential. The need, however, is for truly potent checks and balances, based on powerful, autonomous institutions and communities, not phoney ones existing largely or only in name rather than in actual reality.

The road to self-governance

Flip Buys’ book referred to above primarily addresses the position of Afrikaners. However, the need and yearning for self-governance goes way beyond Afrikaners to many other communities – local territorial, corporate, etc. Many security villages and suburbs and other forms modes of self-rule emerged over the last decades.

They exercise numerous local government functions, look after their own security, exercise their own access (border) control, and provide secure spaces for the accommodation of educational institutions, medical services, sports, recreation and other facilities and functions. Similar trends are underway in less affluent communities. The degree of self-governance aimed at, varies from the highest form and widest spectrum to lower degrees covering only a few matters.

Regardless of all this, it is argued that the transfer of governance functions to self-governing communities is impossible. The argument goes that the reallocation of governmental powers can only be effected on account of constitutional provisions allowing that.

At the moment, the Constitution does not authorise such reallocation. Moreover, the communities endeavouring to achieve such self-governance arguably represents a small minority of the national population and can therefore not muster the required two thirds majority to amend the Constitution to allow for such reallocation of governmental power.

According to the trite constitutional doctrine this argument would be valid. The point though is that amendment of the formulations of the Constitution predicated on trite constitutional doctrine, does not provide the full picture of the ways in which constitutional changes occur.  Hence, it was explained in the second article that constitutional dispensations may (and in fact often do) undergo profound changes in the upshot of potent political forces and accompanying practices in society, without any preceding constitutional amendment providing for that.

In the third article this was demonstrated with reference to recent South African events. What this this brought to light is that the actual constitution has in fact undergone great changes notwithstanding the fact the provisions of the Constitution were not amended. Constitutional change is therefore not limited to amendments of the script (the formulations) of the Constitution; There is also the important phenomenon of change resulting from deeds – practices.

There are two crucial additional points pertaining to constitutional change that need to be emphasised.

The first is that any potent political force can change the actual constitution; that is to say not only forces such as transformationism, forthcoming from ruling elite, but any forces, also those initiated by well-organised and focussed minority groupings.

The second is that constitutional change need not only occur countrywide. On the contrary, on a territorially limited scale, constitutional change may play out locally and differently in a number of places - in towns, suburbs and regions.

Communities in such places start caring for their own security and public order, provide social and health services, provide all services ordinarily associated with local government, guarantee food and water security, administer own dispute resolution services, administer electrical power, provide for own education, and in general establish autonomous local economies (in cooperation with other local economies.) Usually they do this on their own, occasionally in cooperation with but always with an acquiescent and weak state.

Regardless of the way in which it is playing out, it is always of constitutional significance. In all these cases the written and seemingly supreme Constitution loses ground in favour of a substituting actual constitution, gradually establishing itself. In all cases organs of state forfeit power in favour of new wielders of authority appropriating increasing degrees of self-government.

This is an arduous and costly road for communities seeking self-government. For success the aims must never be too ambitious. More specifically, it should not be statist, that is, aimed towards the achievement of constitutional change on a country-wide scale. Instead the focus should be locally or regional, that is, within the bounds of what is realistically achievable. The regressing state, clearly having gained an irrevocable momentum of its own is an important impetus in this scenario. Changing guards within the ANC have hardly any effect on this. Every episode in the dreadful (or welcome) chronicle of the fading state open up new opportunities for self-rule.

The book on which this series is based is published by African Sun Media and is available, amongst others, in Protea Book Shop stores. It may be ordered directly from the publisher or from Takealot: Google Books: ITSI: Facebook Shop: Amazon Kindle: or Pinterest.