The 2013 Helen Suzman Memorial Lecture was delivered by recently retired Justice of the Constitutional Court, Zakeria Mohammed Yacoob. His retirement from the bench in January of this year concluded 15 years of judicial service, during which he made substantial contributions to the development of Constitutional Law in South Africa. His unwavering commitment to the protection of human rights, and his understanding of South Africa’s unique constitutional context made him and obvious choice of speaker for this year’s Memorial Lecture. The title of the lecture was The Constitution, a Liberal Democracy and Patriotic Criticism; it was attended by over 200 guests including a number of sitting judges.
Judge Yacoob began his lecture with a brief discussion of the life and work of Helen Suzman. He reflected on the relationship that developed between the two of them during the time they served on the Independent Electoral Commission overseeing South Africa’s first democratic elections. He praised the work she had done and the contribution she made to the advancement of Liberal Democracy in South Africa. He pointed out that while Helen may not have agreed with everything he was about to say, she most definitely would have defended his right to say it. A commitment to openness and reasoned discourse was a hallmark of Helen’s contribution to the struggle against apartheid and something for which she will always be remembered.
A Liberal Democracy
The fond remembrances were followed by a stark reminder that we have reached a difficult time in our constitutional history. Nearly 20 years into our democracy, it is time to take stock of the progress made and confront the challenges that face our society. So far, the Constitution has not created the type of society envisaged by its founding provisions. It has not delivered on the promises made by the Bill of Rights, and many people are yet to experience the benefits of South Africa’s transition to Constitutional Democracy. Judge Yacoob suggested that it is now time to reach an agreement on what the Constitution means and the vision of South African society it provides. It is at this point that we need to establish how the Constitution squares with the idea of Liberal Democracy and the extent to which it seeks to create a liberal democratic state.
Central to the idea of liberalism is a right to freedom. There are a number of contexts in which individual liberty is mentioned in our Constitution and references to freedom are made throughout the Bill of Rights. Judge Yacoob reminded the audience of how the right to freedom and security of person was interpreted by the Constitutional Court in the case of Ferreira v Levin and Others. The court was split in its interpretation of the right to freedom conferred by Section 12. Ackermann J, interpreted the right to freedom and security of person to include a general right to individual liberty over and above that of bodily freedom. He gave Section 12 a wide interpretation that encompassed a constitutional protection of individual liberty within society. Chaskalson P, adopted a different approach to that of Ackerman and endorsed a more limited understanding of the right to freedom contemplated by Section 12. He held that the provisions refer specifically to bodily freedom and do not contain general rights to liberty over and above that. The more circumspect approach was seconded by Mokgoro J, who held that the right to freedom in society was distinct from one’s right to bodily freedom and security of person. She held that the facts before the court did not provide an appropriate platform from which to address the broader issues raised by the judgement of Ackerman.
The debate that took place in this judgement raised questions about the nature of freedom in our society. It questioned the emphasis our Constitution places on individual liberty and the relationship between the right to freedom and other constitutional rights. In this regard, it is important to understand that the right to freedom is not synonymous with equality and does not necessarily imply the protection of other rights. Judge Yacoob suggested that our Constitution is first and foremost about humanity, which is broader than freedom. In understanding that, we need to consider what is provided for by the equality clause.
Unlike freedom, the right to equality is provided for by a free-standing, independent clause within the Bill of Rights. The provisions of Section 9 apply vertically and horizontally and are not coupled with, or dependent upon any other rights or provisions. Section 9 distinguishes between formal and substantive equality and clearly rejects the former in favour of the latter. Judge Yacoob suggested that focussing too heavily on individual liberty blurs the distinction between formal and substantive equality in a manner that is not consistent with the provisions of Section 9(1). The freedom to achieve one’s full potential is an essential component of the right to equality. The right to equality and freedom are closely related, and any conception of individual liberty needs to be made in light of Section 9.
Subsections (3) and (4) provide for strong limitations of individual freedom by expressly forbidding discrimination on the basis of a wide variety of listed grounds. The horizontal application of these provisions places important limitations on individual freedom and is a clear indication that the right to equality informs and restricts the right to freedom. The listed grounds also provide a ready source of constitutional values and identify vulnerable groups within our society to whom certain duties are owed. Judge Yacoob made it clear that Section 9 creates substantive and enforceable obligations to ensure that the interests of previously disadvantaged groups are protected and advanced. The audience was reminded of the case of Minister of Finance v Van Heerden and the manner in which the High Court’s finding of “reverse discrimination” was overturned by the Constitutional Court.
The importance of protecting the interests of vulnerable members of our society is also captured by the Constitution’s provision for socio-economic rights. The rights to dignity, freedom and equality are given effect by providing for a minimum standard of living. Judge Yacoob drew attention to the interplay between equality and freedom made explicit by the notion of freedom from poverty. The freedom from poverty was one of the fundamental freedoms that was identified by the Five Freedoms Forum and is particularly important in the South African context. Civil society needs to understand and embrace the importance of a society that is free from poverty. A right to freedom from poverty needs to be considered a vital component of the democracy we hope to become. Judge Yacoob suggested that we should not be striving to become a Liberal Democracy in the traditional sense but rather, a People’s Democracy in which power is used for the benefit of all people.
Patriotic Criticism
In dealing with the notion of patriotic criticism, Judge Yacoob pointed out that the Constitution contemplates a society founded upon the values of openness and accountability. This creates an obligation to develop a democratic society in which debate and discourse are not only tolerated but encouraged. These values give rise to a citizenry that is engaged with policy makers and is not afraid of constructive criticism. He raised concerns that the values of openness and accountability are not being fostered in South African society. Criticism of government and politicians is not encouraged and the only discussion that takes place happens privately and out of public view. The current hostility to public criticism of government is a danger to our Constitutional Democracy and certainly runs counter to its founding values. The attitude we adopt towards public discourse is vital to ensuring the Constitution is able to fulfil the promises it makes.
Luke von der Heyde
Intern
luke@hsf.org.za
