Ralph Mathekga

Land: Does the will of the majority trump the spirit of the Constitution?

2018-11-19 09:04
Students protest outside Parliament ahead of the mini-budget.

Students protest outside Parliament ahead of the mini-budget. (Photo: Jaco Marais/Netwerk24)

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The main problem that arises in the current expropriation matter is that there are those who believe that the will of the majority at any point in time trumps the Constitution, writes Ralph Mathekga.

The ANC and the EFF last week moved a notch closer to amending the Constitution to ensure expropriation of land without compensation

The parliamentary Constitutional Review Committee has adopted a report to amend the Constitution to that affect. As the two parties would have it, the will of the majority is being expressed in this report. 

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If the Constitution were to be changed in this regard, that would be the most significant amendment in post-apartheid South Africa. There are those who have already raised concerns about the procedure the committee followed, arguing that it did not take into consideration the views of those who disagreed with the amendment. The Institute for Race Relations (IRR), for one, is heading to court to question the conclusion reached by the committee. 

From where I sit, it is not a question of procedure that is in dispute. The main issue has to do with the broader idea that the Constitution can be amended not because it is rational to do so, but simply because the majority intends to achieve a set of political goals. 

The question of procedure – thus, how many views exactly were taken into consideration in arriving at the decision to amend the Constitution – is peripheral to the grand question about how to justify such a significant amendment while remaining within the ambit of the very Constitution. 

South Africa's Constitution is the supreme law of the country. This means that any law that violates it is unconstitutional. However, one can get around this if the Constitution can be amended. 

The main problem that arises in the current expropriation matter is that there are those who believe that the will of the majority at any point in time trumps the Constitution. But nowhere does the Constitution say anything about a decision being justifiable only because it is supported by the majority. 

Imagine a situation where the majority agrees that all people shorter than 1.5 metres tall should be killed. That would be a democratic decision, but not in the interest and wellbeing of the nation. Such an idea would be democratic yet irrational. 

This is where the issue comes out: is it rational and in line with the spirit of the Constitution for Parliament to agree to amend it to ensure expropriation of land without compensation? This question is likely to dominate court actions on the matter. 

Even if the Constitution can be amended to allow for policy implementation, chances are that such an amendment will be attacked from all possible directions once it has come into effect. The attacks may happen to a point where the policy is crippled. 

In a constitutional democracy, there is always a right to ask if the majority is sane in its conduct. The best way to question the majority is to take their conduct upon judicial review and assess whether it is in line with the Constitution or specific provisions of the Constitution. There is nothing unpatriotic about referring decisions to the courts for judicial review. 

South Africa has two type of adherents to constitutional democracy. On one side is the group that believes that the Constitution is sacrosanct and need not be touched irrespective of the challenges confronted by the society. This is the group that believes that the Constitution need not necessarily reflect society's wishes.  

On the other side is a group that believes that whatever hurdles the Constitution places on the policy of the day can be dealt with by simply amending it without first considering other ways to adapt policy to the existing constitutional demands. This groups believes in constitutional supremacy, so long as they get the amendments they want. 

The clash between these two groups, as we are about to see with regard to expropriation of land without compensation, demands an unavoidable conversation about what the meaning of transformative constitutionalism is in a democracy such as ours. 

The question is whether a meaningful transformation of our society is possible through the Constitution, or if the Constitution is there to restrain the majority from following their own whims? 

- Ralph Mathekga is a senior researcher at the Centre for Humanities Research (CHR) at the University of the Western Cape. He is author of When Zuma Goes and Ramaphosa's Turn.

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