AfriForum expresses concern regarding transformation and the Constitutional Court

8 October 2018

The civil rights organisation AfriForum today expressed its concern during a conference in Centurion regarding the fact that the Constitutional Court is increasingly embodying the ruling party’s ideological points of departure in its judgements by including political content in its judgements. 

A report entitled Transformation and the Constitutional Court by John Kane-Berman, former CEO of the Institute of Race Relations (IRR), was presented at the conference. Other speakers that appeared at the conference include Prof. Koos Malan of the Department Public Law at the University of Pretoria (UP), Flip Buys, Chairperson of the Solidarity Movement, Dr Theuns Eloff, CEO of the F.W. de Klerk Foundation, as well as Adv. Gretha Engelbrecht.

In his report, Berman indicated that the Constitutional Court is increasingly using false arguments to pave the way for the ideological points of departure of the ruling elite in South Africa. The fact that the Constitutional Court describes transformation as a constitutional imperative despite the fact that the term doesn’t even appear in the Constitution, is one such an example.

Judgements that were analysed during the conference include the following cases:

SAPS versus Solidarity on behalf of Renate Barnard (affirmative action)

AgriSA versus Minister of Minerals and Energy (property rights)

Fedsas versus Panyaza Lesufi (education)

Solidarity versus Department of Correctional Services (affirmative action)

City of Tshwane Metropolitan Municipality versus AfriForum (cultural rights)

University of the Free State versus AfriForum (language rights) 

Malan emphasised that the text of the South African Constitution has as a matter of fact changed already, not due to literal text amendments, but by amendments in the manner in which the text is being interpreted by the courts. Buys expressed his concern regarding the fact that the Constitution – regarded by many as a strong pro freedom constitution – is increasingly being interpreted by the Constitutional Court as one whereby execution must be given to equality of outcomes, which is in contrast to freedom.

Eloff said that the ANC succeeded in giving its own ideological content (especially with regard to race) to the term transformation and that the ANC’s definition of the term has become the leading definition. Engelbrecht mentioned, among others, that it seems as though the Constitutional Court is increasingly attaching value to the identity of the parties appearing in Court and that it seems as if this is becoming a determining factor for the Court regarding the manner in which a particular case must be judged.   

Read John Kane-Berman’s comprehensive report here: http://bit.ly/2NtzPP1

Statement issued by Ernst Roets, Deputy CEO, AfriForum, 8 October 2018