The “conference of the Left” was held in Gauteng at the end of May. The SACP has produced a lengthy document that sets out to capture the essence of the discussions held. The document ends dramatically with a summary of the decisions of the gathering. That summary can be further summarised into the following points.

“The future will not be given to us. It must be organised thus:

Working-class leadership in the struggle for popular power.

Unity in action against capitalism, neo-colonialism and imperialism and for land restitution, redistribution and expropriation without compensation.

Fostering public, social, worker, co-operative and community ownership, the right to live without fear in peace and international solidarity.

Forward to a society organised around social and environmental need, not private profit.

Issued by SACP, 31 May 2026.”

The ANC was invited to participate in the conference but chose not to do so.

The SACP has departed from the tripartite alliance that held sway in SA between 1994 and 2024 and will contest the local government elections in November 2026 under its own steam and in open competition with the ANC and all other parties which enter the fray. The “cuckoo’s nest” arrangement between the ANC and SACP is at an end. No longer will SACP nominees serve as ANC members of parliament and in cabinet.

The socialist agenda shines through the resolutions and informed the discussions held at the conference. The SACP media release, summarised above, affirmed that “the 1994 democratic advance was a historic victory of the people’s struggle against apartheid colonialism. It opened political space, extended democratic rights and created possibilities for deeper transformation. But the 1994 settlement did not resolve the national, class, gender and land questions. It did not dismantle monopoly capitalist ownership and control of the economy. It did not return the land to the people. It did not place the commanding heights of the economy under democratic control.”

In the pre-democracy period prior to 1994, and to this day, the ANC has embraced as its strategy and tactics the tenets of the National Democratic Revolution. This is a Soviet-inspired approach which aims to secure hegemonic control of all the levers of power in society in SA. This ongoing attachment by all elements of the (now ended) tripartite alliance to revolutionary dogma is “mission impossible” in a constitutional democracy under the rule of law. Here the separation of powers is real, the holding of regular elections is mandatory and Chapter Nine Institutions bed down constitutionalism in a way designed to promote constitutional democracy. Human dignity, the promotion of the achievement of equality and the enjoyment of human rights guaranteed to all in the Bill of Rights are all fundamentals of the new SA. Ours is a society in which the founding provisions include openness, accountability and responsiveness. The Constitution demands those from people in positions of political power. It also requires that conduct or law that is inconsistent with the Constitution be regarded as invalid, and liable to be struck down by the independent and impartial judiciary of SA.

It is in this context that the attitude of the left to the Constitution must be examined.

The SACP media release records that:

The Conference also calls for a review of the 1996 Constitution from the standpoint of unfinished national democratic and socialist tasks, including land, property relations, public ownership, social rights, participatory democracy, the role of the state in the economy, and the transformation of state power in favour of the working class and poor.

The founders of the new constitutional order in SA were careful to protect it against radical amendments by building in protections and limitations on the right to amend the Constitution. Foundational values encapsulated in section 1 can only be amended by:
“A bill passed by –

  • The National Assembly, with a supporting vote of at least 75% of its members; and
  • The National Council of Provinces, with a supporting vote of at least six provinces”

In similar vein, the Bill of Rights may be amended by a Bill passed by two thirds of the members of the National Assembly with a supporting vote of at least six provinces in the National Council of Provinces.

These special majorities, in the new age of coalition politics at national level, make it practically impossible to achieve the type of radical reform of the constitutional dispensation that the Left apparently desires.

It should also be noted that the 1996 Constitution was subject to a “Solemn Pact” entered into by the negotiating parties that required that 34 principles be incorporated into the constitutional fabric of the new order which is now in place. Its certification of the new order ensured that the Constitutional Court was satisfied that compliance with those requirements was achieved. In this way the old order did not hand a “blank cheque” to the incoming new leadership of the country. The Constitution is now our supreme law, and together with the rule of law is regarded as such in the Constitution itself.

The Constitution is not immutable. It has been amended lawfully on 18 occasions, and will no doubt be amended again in the future. The National Assembly has a Constitutional Review Committee which invites all interested South Africans to participate in the review, and the possible amendment of the Constitution.

There are aspects of the Constitution that cry out for amendment in a manner that complies with the restrictions summarised above. Here are some random examples:

  1. The over-concentration of power in the hands of the president.

This topic has been commented on adversely by retired Deputy Chief Justice Dikgang Moseneke. He has criticized South Africa’s Constitution for creating an “imperial presidency,” warning that the excessive concentration of executive power poses a significant threat to the country’s democracy.

His key critiques regarding this concentration of power include:

  • Vast Appointment Powers: Moseneke has repeatedly pointed out that the president wields unilateral or near-unilateral power to appoint key state officials. This includes the Deputy President, Cabinet ministers, the Chief Justice, judges, ambassadors, and the heads of critical public institutions like the National Prosecuting Authority (NPA), police, intelligence services, and Chapter Nine institutions.
  • Power of Summary Dismissal: Because the presidents hold the power to appoint, they also hold the power to remove. Moseneke noted that this allows the President to summarily dismiss the Deputy President and cabinet ministers. This can be highly disruptive to government operations.
  • Lack of Collective Checks: Moseneke argued that appointments made by a single individual functionary are more vulnerable to legal challenges raising lack of rationality. He advocated for appointments to be handled by deliberate collectives rather than a single political figure, which would shield these crucial roles from personal preference and political whim. This point has been taken up by Advocate Willie Hofmeyr, a retired DNDPP and former ANC member of parliament during the Mandela presidency. Hofmeyr favours the creation of a “Commission for the Appointment and Dis-Appointment of senior functionaries in the state”. If populated by outstanding citizens who are not politicians, this commission could make a positive difference.
  • The Mandela Exception: Reflecting on the drafting of the Constitution, Moseneke has observed that negotiators were perhaps too eager to vest immense power in President Nelson Mandela, operating on the assumption that he would always “do the right thing”. However, this leaves the system vulnerable when that power is inherited by less scrupulous leaders.
  • The Need for Constitutional Review: Moseneke has suggested that the country would ultimately need to revisit the dispersal of public power. He has cautioned that ignoring this “uncanny concentration of power” could be done only at the country’s peril.

2. The need for an anti-corruption entity that is outside executive control.

In 2011, in a binding majority judgment of the Constitutional Court, it was ruled that “our law demands a body outside executive control to deal effectively with corruption. No such body exists; this is in breach of the finding made and possibly in contempt of the court order in the matter which is now known as “Glenister Two”. The best way to achieve compliance with the court order is arguably to create a new Chapter Nine Institution to house it. This step would require a two-thirds majority in parliament, but it would give the new body security of tenure unknown in the entire criminal justice administration. The Chief Whip of the DA, Adv Glynnis Breytenbach, is the sponsor of legislation currently pending in parliament that is aimed at the establishment and empowerment of what she calls a Chapter Nine Anti-Corruption Commission. This is certainly the most urgent amendment to the Constitution.

3. The need to reduce the number of Chapter Nine Institutions.

The Asmal Committee, chaired by Professor Kader Asmal, considered the rationalisation of Chapter Nine Institutions. His report suggested several major overhauls, most notably proposing to rationalise and amalgamate certain bodies to save resources and improve service delivery. Key recommendations included:

  • Consolidating various equality and human rights bodies into a single, unified structure.
  • Establishing a dedicated administrative unit within the Speaker’s office to better coordinate parliamentary oversight over these institutions.

Quite apart from the Asmal report, the truth is that governance of some Chapter Nines is bedevilled by cadre deployment and a lack of independence and impartiality. Both of these are constitutional requirements.

4. Enhancing the independence of the National Prosecuting Authority.

It is a myth that the NPA enjoys operational and structural independence. Were it to be accorded both, it would be able to function better than it does as a programme within the department of justice, under the thumb of ministers who have final responsibility over it and with the director general of justice as its accounting officer, in charge of the purse strings. See https://accountabilitynow.org.za/the-truth-about-the-independence-of-the-national-prosecuting-authority/.

5. Revisiting the structure, functioning and population of the Judicial Service Commission

There are too many politicians, both professional and amateur, on the JSC. It is one of the most dysfunctional bodies created in the Constitution and needs to be radically re-thought with due regard to the criticisms raised by Judges Matter and the doughty NGO, Freedom under Law. Replacing politicians with retired judges who are better-equipped to assess the qualities of candidates and the wrongdoings of judges facing disciplinary proceedings is surely a matter so obvious that it ought not to be controversial.

The support of the Left for the NHI and for expropriation without compensation are both misplaced and unconstitutional. The constitutionality of any new law on these fronts is bound to be tested in court, with outcomes that will not please the Left.

Interestingly, the conference of the Left did not endorse or support BEE in any way discernible in the media release of the SACP which is under discussion. This omission suggests that the Left is not impressed with the effectiveness of BEE and views it as a cadre-enrichment project of the ANC.

The left in SA has a long way to go to achieve its ambitions. The political parties that participated in the conference do not constitute an ordinary majority in parliament, let alone the super-majorities required to achieve elements of the review of the Constitution desired by the conference.

[Image: Clker-Free-Vector-Images from Pixabay]

Paul Hoffman SC is a director of Accountability Now

The views of the writer are not necessarily the views of the Daily Friend or the IRR.

If you like what you have just read, support the Daily Friend

contributor

Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt.