DON'T TEAR UP THE CONTRACT: CALL THE DELINQUENTS TO ACCOUNT!

Issued by Dave Steward, Chairman of the FW de Klerk Foundation on 31/05/2023

 

In his recent articles on the Constitution, Prof Koos Malan expresses the view that those of us who supported the constitutional transformation of South Africa between 1989 and 1996 were motivated by some kind of liberal-religious delusion.

Although he concedes that “the new dispensation obviously has brought about several good things”, his attitude towards the Constitution is scathingly dismissive. The vision it proclaimed was, according to him, “an enormous hoax”. He is not too keen on liberal democracy either – and takes bitter delight in the obvious fallacy of Francis Fukuyama’s thesis that the triumph of liberal democracy at the end of the 20th century heralded “the end of history”.

In terms of his liberalism-as-religion analysis, the “already hopelessly rickety” system of Apartheid was “swept away by the world-wide doctrine of liberal democratic salvation”, with the 1996 Constitution “meeting every requirement and more of liberal democracy’s salvation doctrine descended on us – complete with its forgiving messianic leader, Nelson Mandela”.

Although political beliefs may morph into secular religions (as we now see with the “wokeness” cult), this is not at all what happened in South Africa.

During the 1980s, the South African Government confronted a truly existential crisis of escalating internal protest, economic decline, international isolation and the growing threat of Soviet-supported military intervention in southern Africa. By 1986, the National Party had concluded that it was neither possible – nor morally acceptable – for a diminishing white minority to continue to rule over an increasingly restive black population forever.

Neither was it possible or feasible to establish some kind of white homeland or to entrench a permanent white veto over future democratic governments. In no part of South Africa were whites in a majority, and there was not the slightest possibility that whites would leave their jobs, properties and comfortable lives in the rest of the country to seek their future in a super “Orania”. A white veto would have been universally rejected – by any future government and by international opinion. 

The National Party leadership came to accept that there would have to be negotiations on a new constitution. FW de Klerk realised, after the fall of the Berlin Wall in November 1989, that the balance of forces would never again be so favourable for successful negotiations. He and his colleagues did not enter the negotiations as converts to the doctrine of “liberal democratic salvation”. They did so on the basis of a brutally pragmatic assessment of their situation, in the hope of being able to reach an agreement that would protect their interests and the interests of all South Africans – and with the deepest sense of trepidation.

In 1993, the negotiating parties reached agreement on the interim Constitution, and finally – in 1996 – on the present Constitution. It is by no means perfect, but – despite Prof Malan’s scorn – it does stack up pretty well against most of the world’s constitutions. It is based on the foundational values in section 1 that include “human dignity, the achievement of equality and the advancement of human rights and freedoms; non-racialism and non-sexism; the supremacy of the constitution and the rule of law and a multiparty system of democratic governance to ensure accountability, responsiveness and openness”. 

Now, these values may seem to be a deluded liberal liturgy to Prof Malan (and Julius Malema would agree with him), but they have been remarkably successful in most societies in which they have been properly implemented. 

For the first 13 years, the Constitution did go some way to fulfilling its promise. South Africa was able to rejoin the world. We were able to trade, travel where we wanted and play international sport. Even Prof Malan must have experienced a twinge of euphoria when Nelson Mandela donned the Springbok jersey after our Rugby World Cup victory in 1995. More importantly – in 1996, the SACP and COSATU were effectively sidelined by the ANC’s GEAR policies. The economy grew at over 5% between 2005 – 2007 and Trevor Manuel succeeded in cutting national debt by half, to just 26% of GDP. Unemployment went down and living standards – for all South Africans – went up.

Then, in December 2007, everything changed.

A “coalition of the disaffected”, led by the SACP, COSATU and the Zumaites, won power at the ANC’s Polokwane conference. The left wing began to implement radical economic transformation – the next phase of the National Democratic Revolution – while President Zuma set to work capturing key state institutions. The floodgates of corruption opened, and the President and his Gupta allies began to strip-mine the public sector and SOEs of their resources.

President Zumba would never have been defeated without the institutions and freedoms created by the Constitution. It was the Public Protector, Thuli Madonsela, investigative journalists, intrepid NGOs and the Constitutional Court that finally forced him from office.

Unfortunately, the “New Dawn” heralded by President Ramaphosa has been a great disappointment. It did not signal a serious recommitment to constitutional principles. The President has failed to stop corruption, and has continued to support the economically suicidal racial goals of radical economic transformation, and so we now find ourselves in the parlous situation that Prof Malan so understandably deplores.

However, the Constitution – the contract on which we established our new society – is not the problem. The problem is that the ANC has not honoured the contract. It has intentionally ignored the parts that it never wanted – particularly non-racialism, property rights and language and cultural rights. It has failed to honour its other constitutional obligations because of entrenched corruption, incompetence and its adherence to utterly discredited racial and socialist ideologies.

However, the correct response to a breach of contract should not be to tear up the contract – but to continue to demand that the delinquent contractors meet their obligations.

Prof Malan now wants us to embark on a dispensation that has been tried nowhere in history. He wants a system liberated from “statist-individualistic constitutionalism” in which cultural and linguistic communities would rule themselves “without any external interference”. But who would define the territories of these communities? Would they be racially exclusive? Under what constitution would they be ruled? Who would collect the taxes and control the armed forces? With whom would such a dispensation be negotiated?  

This approach would simply catapult white South Africans back to the existential crisis that they faced in the 1980s – but with none of the power and the negotiating resources that the Government possessed in 1990. This is a constitutional flight of fancy, with no discernible links to reality. It would stand no chance of acceptance by a constitutionally legitimate government, by the broader population of South Africa, or by the international community.

We would be mad to abandon the moral high ground that is represented by the Constitution – especially when the four horsemen of the legislative apocalypse are about to descend on us in the form of the Expropriation Act, the Employment Equity Act, the Hate Speech Act and the NHI. How does Prof Malan plan to combat these threats without the mechanisms and freedoms provided by the Constitution that he so bitterly criticises?

Despite the parlous situation in which we find ourselves, South Africa remains a free society. We still have independent courts that frequently hand down judgements that displease the Government. To its credit, the Government generally obeys the courts. We still have freedom of expression. We still have free elections and the prospect of unseating the Government. Does Prof Malan really think that it is a good idea to undermine the best defences we have against impending chaos? 

Instead of chasing after constitutional delusions, all South Africans of goodwill – irrespective of their race – should redouble their efforts to defend our embattled Constitution. They should take their stand on the values in section 1 of the Constitution and vociferously demand that the government fulfil its obligations to all South Africans, irrespective of race, in accordance with the great national contract that we concluded in 1996.

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