Issued by Dave Steward, Chairman of the FW de Klerk Foundation, on 20/06/2023


On 31 May, I issued a response to Prof Koos Malan’s 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.

Today, I must respond to his reply to my article on his thesis that “the Constitution is not our Salvation”, because the issues involved are so important.

Prof Malan dismisses the present Constitution as liberal “soteriology” and proposes a new federative constitutional system in which “cultural, linguistic and regional communities must be recognised without external interference to be governed by their own management structures” – a system that, as far as I can discern, has never been implemented anywhere in the broad sweep of human history. Who would demarcate the territories of these entities? Would they be racially exclusive? Who would write and guarantee the constitution on which they would be based? With whom would the new dispensation be negotiated and by what formula would it be adopted?

The problem does not lie in drawing up a constitutional wishlist, but in being able to put it into practice in the real world. The dispensation Prof Malan has in mind would have to be negotiated with the Government of the day – probably the “neo-primitivist ANC”, as Prof Malan describes it – by the tiny percentage of the population that supports his views. Is it likely that it would agree to such negotiations – and if it did, that it would accept a new system that would be more favourable to minorities than our present Constitution? Of course, any attempt to implement a new constitution unilaterally – without negotiations and adoption by a two-third majority in Parliament – would plunge the country into even deeper chaos.

I worked closely with President De Klerk during our own tumultuous negotiating process and can assure Prof Malan that, even with the considerable power that we then commanded (with universal national and international support for the negotiations), the process was fraught with difficulties and peril. What power, and what internal and international support, would the advocates of Prof Malan’s new constitutional order be able to bring to the negotiating table?

Let me put it as clearly as I can: there is no possibility of negotiating a constitution better than the one we have at present.

One does not need a doctorate in law to identify the grave problems that now confront us.  However, they have their roots, not so much in the Constitution, but in the abject failure of the ANC to honour it, and in the mixed record of our courts – particularly with regard to issues relating to transformation. (The courts have been quite good on governance issues, as we saw from the way they helped to get rid of President Zuma).

For as long as we take our stand on the Constitution, our actions and arguments will have national and international legitimacy. It would be the greatest folly to abandon this moral high ground at this critical stage in our history. The EFF and ANC radicals, who dislike the Constitution almost as much as Prof Malan does, would be delighted to get rid of it. We should rather use all the powers that we can claim from the Constitution to call the ANC-SACP Government to account and to oppose unconstitutional laws and policies.

This is what the FW de Klerk Foundation, in its modest way, has been trying to do since it was established 24 years ago. We were one of the first organisations to draw attention to the profoundly unconstitutional goals of the ANC’s National Democratic Revolution. We have consistently exposed and campaigned against unconstitutional legislation and, on occasion, have made use of the courts to oppose unacceptable policies and laws. We are now in the process of organising a conference to focus attention on the disastrous implications of expropriation without compensation and on the importance of extending real property rights to all South Africans.

In the very difficult period that lies ahead, the Constitution and the courts present us with the best – but by no means foolproof – option of opposing the Expropriation Act, the Employment Equity Amendment Act, the Hate Speech Bill and the potentially catastrophic National Health Insurance Bill. We shall have to rely on all the powers, rights and values in the Constitution if we wish to succeed in warding off these threats.

In the meantime, we fully support the initiatives that Prof Malan lists – including efforts by the Western Cape to secure greater powers; Solidarity’s excellent work in promoting community self-management; and actions by civil society organisations to step into the breach left by failing Government institutions. However, all these actions are consistent with the Constitution.

I have never believed in the “false constitutional salvation doctrine” that Prof Malan derides. However, I support the Constitution’s foundational values of human dignity; the achievement of equality; the advancement of human rights and freedoms; non-racialism and non-sexism; the rule of law and the supremacy of the Constitution; and a genuine system of multiparty government that is open, accountable and responsive. The problem does not lie with these values but with the dismal failure of the ANC-SACP Government to honour them.  

In a world full of vicissitudes and shifting power relationships, there have never been any guarantees of salvation for anyone. The Constitution will not necessarily assure our salvation – but, for the moment, it is the best lifeboat we have to navigate the stormy seas that lie ahead. I have the greatest respect for Prof Malan, but feel that he should be using his undoubted juristic talents to help us man the pumps and call the delinquent captain and crew to account, rather than hacking away at the constitutional hull on which all of us must depend.

Image © Leila Dougan