The local government elections bring the tenets and values of the constitutional dispensation in SA into sharper focus, as registered voters prepare to hold politicians and their parties to account by casting their votes.
All elected politicians are obliged to either swear or affirm their fealty to the Constitution. The wording of the oath of office is instructive: it requires obedience to, respect for and an undertaking to “uphold the Constitution and all other law of the Republic…”
The Constitution and the rule of law are regarded as the supreme law of SA; any law or conduct that is inconsistent with the Constitution is invalid, and the obligations imposed by it must be fulfilled. These requirements are expressly spelt out in Section 2 of the Constitution. These provisions imply that politicians cannot do as they please; they are obliged to confine their work to what the Constitution allows.
In the Bill of Rights, which is Chapter Two of the Constitution, it is laid down that the state must respect, protect, promote and fulfil the rights in the Constitution. From section 9 to section 35 these rights are spelt out and defined. They amount to a comprehensive service delivery agenda, one which the state has been slow to roll out for its citizens, especially when it comes to expensive socio-economic rights like housing, healthcare, social security and an environment that is not harmful to health and well-being.
Some rights are subject to progressive realisation, other have been claimable in full since day one of the new dispensation now in place since 1996. Look for the weasel words “in the light of available resources” and “subject to progressive realisation” to identify sections to which delayed delivery applies.
It is to our independent and impartial courts that aggrieved citizens can turn for decisions on legal issues that concern them, especially those in which the duty of the state to respect human rights is in question. The apex court is the Constitutional Court in which the Chief Justice, the Deputy Chief Justice and nine other justices sit as the highest court in all constitutional matters. In such matters, at least eight of the justices must hear matters brought before their court. Decisions are made by the majority; if no majority emerges the ruling appealed against in the court below stands.
Since its inception in 1994 (with its first official session in February 1995), the Constitutional Court has delivered 1,078 certified judgments as recorded by the South African Legal Information Institute (SAFLII).
However, the total number of applications adjudicated or disposed of is significantly higher than the number of full, published judgments, due to how the court operates.
Full Judgments: The court delivers an average of 30 to 40 full written judgments per year.
Decisions in Chambers: A massive portion of the court’s actual workload involves deciding on applications for leave to appeal or for direct access. Unlike many global apex courts that delegate screening to smaller panels, the Constitutional Court reviews every new application en banc (requiring a quorum of at least eight judges). Many of these are summarily dismissed or decided in chambers without proceeding to an oral hearing or having the benefit of a full published judgment.
Workload
The workload of the Constitutional Court threatens to outgrow its capacity to deliver justice swiftly and with the necessary impartiality. Remedial measures to increase the number of justices who grace its Bench and to revise the methodology used in the way in which it approaches its chamber work are indicated, and should receive attention from government.
The Constitution itself requires that all constitutional obligations must be performed diligently and without delay. Puisne judges who do not adhere to this standard in the rate at which they sit on reserved judgments are disciplined by the Judicial Service Commission.
Resorting to the courts to defend the Constitution is both expensive and time-consuming. It is beyond the financial means of most citizens to litigate any failures of government to uphold the Constitution.
Nevertheless, a wide variety of constitutional issues have been litigated, sometimes using the pro bono services of lawyers. Many of the decided cases in the Constitutional Court concern human rights issues that arise due to misgovernance. The old tripartite alliance (ANC, SACP and COSATU) which governed uninterruptedly until 2024 adhered to the tenets of the “National Democratic Revolution” in formulating its strategy and tactics.
The ultimate aim of the NDR is for its revolutionary forces to secure hegemonic control of all levers of power in society. This aim is deeply unconstitutional, given the multi-party nature of our democracy.
It is not necessary to resort to litigation in all cases. Often disputes fall within the mandate of the Chapter Nine Institutions Supporting Constitutional Democracy set up in sections 181 to 194 of the Constitution. The services of these institutions are free to the public. The Public Protector has a mandate to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice.
The powers of the OPP have been invoked by individuals, organisations and political parties. The reports of the OPP have led to the dismissal of cabinet ministers (Bheki Cele and Dina Pule), the litigation around the Nkandla debacle, and to the appointment of the Zondo Commission of Inquiry into State Capture.
Human rights
The SA Human Rights Commission can investigate and report on the observance of human rights and may “take steps to secure appropriate redress where human rights have been violated.”
The Auditor General has, via legislation, been given powers to recover misappropriated funds and assets uncovered during audits, while the Independent Electoral Commission, in ensuring free and fair elections, can and does litigate to this end. Both the Gender Commission and the Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities have been known to litigate within the scope of their mandates as spelt out in the Constitution.
Ordinary citizens, those with neither the means nor the appetite to litigate for proper service delivery and their human rights, do have a weapon available to them for use in the ballot box at election time.
Our multi-party democracy under the rule of law requires regular free and fair elections. The Independent Electoral Commission or IEC is tasked with seeing to it that the elections run smoothly.
Registered voters can hold political parties to account by using their franchise to vote appropriately, and voting out those who have short-delivered on their constitutional obligations.
In a society based on openness, accountability and responsiveness, the way in which votes are used by voters is the most basic and effective way of exacting accountability and promoting responsiveness.
While not voting is an option open to registered voters, it is appropriate to remember that in the liberation struggle, many died or suffered in other ways to achieve the universal franchise now available to SA citizens.
Spoilt ballots
That is something to consider before deciding not to vote at election time. If none of the names on the ballot paper attract support, it is open to voters to spoil their papers in a way that makes it plain that a deliberate non-vote for any of the candidates standing has been recorded. At present, most spoilt ballots do not distinguish between those purposely spoilt and those spoilt unintentionally due to a mistake made by voters whose intention was not to spoil their ballot.
All active citizens should diligently uphold the Constitution and the rule of law. When governance is not up to standard it is the duty of active citizens to take appropriate steps, whether by harnessing the services of the appropriate Chapter Nine body or via litigation, with or without the help of the pro bono legal services that are available in appropriate circumstances.
The values and principles of the Constitution are worthy of protection by those for whom they were designed, with the direct input of about two million active citizens who participated in the Constitution-making process undertaken during the transition from parliamentary democracy to constitutionalism.
[Image: by magraphics]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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