LINDIWE SISULU | Inequality, the rule of law and scapegoating

Recently I have had the opportunity to engage with members of the media and the question which has arisen repeatedly related to my comments on our constitution. Specifically, I have also been accused of scapegoating the constitutional order and the rule of law for my failures in government, and the failures of the ANC, a party of which I am a senior leader.  

The rule of law, “in its most basic form, is the principle that no person is above the law”. More fundamentally, it seeks to ensure our aspiration of freedom and equality. But in our country where equality, or inequality, has become a defining feature, the rule of law must take a particular meaning. It is important, therefore, to see how the rule of law fits with poverty, inequality and development.

Within the UN’s declaration on the rule of law, member states noted that “the rule of law and development are strongly interrelated and mutually reinforcing, that the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realisation of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law”.

Thus, the rule of law cannot hold in a sea of poverty, inequality and underdevelopment. 

Related to everything in this discussion, the question arises whether the rule of law in South Africa supported the goals as outlined by the UN declaration on this question. Has it spoken to eradication of poverty, inequality and underdevelopment in our context?

These are important questions to consider in our daily discussions on social and economic reforms. It is puzzling that it is now demonic to raise these issues publicly.

We have many examples where court decisions, based on the interpretation of the constitution and the law, have stood in the way of delivering development for our people.

Where I serve as minister of tourism, we are still in court for our efforts to provide supportive financial instruments, especially to those who have previously been excluded. The Tourism Equity Fund, aimed at creating an inclusive and growing tourism sector by supporting entrepreneurship and investment on the supply side of the tourism sector, remains interdicted by a court order.

There are similar court processes, past and ongoing, which are challenges to government policies and programmes seeking equity and inclusion across sectors such as mining and procurement. In housing, it took us years to build critical housing projects in Gauteng and the Western Cape as we contended with legal and constitutional matters.

On the critical section 25 of the constitution, members of the media and other legal minds have challenged us to go to court and “test section 25”. No doubt, the court processes involved in testing the constitution would take years and millions of rand, which could be used in development. Yet we are accused of scapegoating the law for work we haven’t done over the last 27 years.

During the time I have led, as a deployee of the ANC, in our efforts to house our people, we have been able to deliver nearly five million houses and housing opportunities. This ranges from free housing to housing subsidies, as well as sites on which people could build their own homes. However, our efforts have been severely constrained by land availability and ownership. In particular, land that is well-placed for people to access work and wealth creation opportunities. This is where the inequality is largely rooted.

To get a more scientific picture, it is important to observe that in total, between 1994 and 2018, we have delivered 4.75-million housing opportunities, including 1.14-million serviced stands and 3.1-million housing units.

There has also been marked gains in terms of the percentage of households that received some form of government housing subsidy. Up to 2018, 19.2% of South African households live in an RDP or state-subsidised house. A further 14.9% of households receive a housing subsidy from government. This means that more than a third of South African households have benefited from government’s housing interventions.

Despite these gains, the need for housing is still large, and growing. Housing is a moving target. According to Stats SA, up to 2018, 2.2-million households, or roughly 12.5-million people in South Africa were still living in informal dwellings. This figure represents the challenge we have to overcome to ensure every household has decent shelter first, and access to a home that represents wealth and heritage.

To deliver on these huge deficits, we need land. And this should not just be land to build houses, but to transfer value and wealth to ordinary South Africans. Given the above, how can it be truly argued that we have scapegoated the law and the constitution for our failures?

What we have to argue for is how the law is interpreted and how it evolves over time in the interest of all.

The late US Supreme Court associate justice, Ruth Bader Ginsburg, gives a good sense of what I have been trying to say about the evolution and the interpretation of the constitution and the law so that we have a more inclusive society.

She explains that the US constitution begins with the words, “We, the people. In 1787 when the constitution of the US was created, who was ‘we the people’? Certainly not people who were held in human bondage because the original constitution preserves slavery. Certainly not women, whatever their colour, and not men who own no property”.

So Justice Ginsburg argued that the original US constitution had to change over time to be more inclusive and to live up to representing everyone. As she puts it, “the concept of ‘we the people’ has become ever more inclusive. People who were left out at the beginning — slaves, women, men without property, native Americans — were not part of ‘we the people’. Now all the previously left out people are part of our political constituency”.

Thus understood, the constitution is a living document which must evolve to meet the needs and aspirations of the people and be more inclusive.

The rule of law is about equality. We are contending, as we have been since the days of our struggle, with equality. Yet our country is defined by inequality. Under this context, how can it be said that there is no need to rethink our legal framework so that it allows us to pull our people out of poverty and deliver on equality, including equality before the law — sooner rather than later?

Lindiwe Sisulu is a member of the ANC executive committee and minister of tourism.