Advocates of increased government meddling in private and commercial affairs often point to the South African Constitution as a justification for the politicization of everything. But this is an incorrect way to read our highest law, which at its core guarantees freedom of choice in all respects.
Every New Year’s Eve, many citizens in the former Soviet Union gather to watch the 1976 Russian romantic comedy, The Irony of Fate.
The plot of the movie is that the protagonist has drunkenly taken a flight from Moscow to Leningrad (today Saint Petersburg). In Leningrad, while thinking he was still in Moscow, he tells a taxi driver to take him to the apartment building he lives in. As it happens, Leningrad had a street with the same name, and the apartment building there was in all material respects identical, outside and inside, to the one in which the protagonist lives in Moscow. He proceeds to fall asleep in the apartment he thinks is his (his key even works for the lock), later to be violently awoken by the real female occupant of the apartment. Romantic comedy ensues.
As the “City Beautiful” channel on YouTube explains, this comedic setup was plausible within the context of Soviet city planning. The Soviet government allowed very little creativity and choice in how residences could look. Housing blocks had to appear generally uniform, all in the name of the State’s ideology of enforced equality and socialism. The notion of private property rights was very limited.
Soviet citizens had no choice and had to take whatever the State deigned to give them. And the State’s whims changed from regime to regime, wildly modifying the nature, size, and shapes of residences. As “City Beautiful” explains, if you happened to live during the premiership of Vladimir Lenin or Nikita Khrushchev, you would have to be satisfied with a very small apartment (essentially a dormitory), whereas if you lived during the reign of Joseph Stalin or Leonid Brezhnev, you would have (slightly) more luxuries.
That anyone – let alone judges and popular constitutional law commentators in the media – could interpret the Constitution as somehow bestowing government with the power to regiment society according to its political goals remains bewildering to me.
The collapse of Soviet socialism in 1989 coincided with a global reawakening of constitutional human rights culture. South Africa would be a pivotal part of this trend when we adopted first the interim (1993) and later the current (1996) Constitution. These fundamental statutes were and are explicitly dedicated to the fostering of a free and open society under the Rule of Law – as opposed to the authoritarian and closed societies under government whim we saw during the course of the previous century in South Africa, the Soviet Union, and elsewhere.
The basic truth that the Constitution represents, which we see throughout human history and today, is that where people are free, there is prosperity, development, and progress; and where people are unfree, there is poverty, destruction, and often mass death. Compare historically the United States and the Soviet Union, and West- and East Germany; and today compare South- and North Korea, Chile and Venezuela, and South Africa and Zimbabwe. Everywhere we look, the story is essentially the same.
The Bill of Rights in the Constitution guarantees various ‘access rights’. To keep with the example of residences, section 26 of the Constitution guarantees the right to access to adequate housing, but there is also section 27’s guarantee of access to healthcare, food, and water.
Those who cling longingly to the dead and defeated side of the Cold War — which regrettably includes leading jurists and lawyers — wish for these provisions to mean that the South African government has been vested with the authority to monopolize, manage, and control the entirety of the country’s housing, healthcare, or nutritional affairs in a Soviet-style. While we haven’t seen the full extent of such a disastrous approach on matters of housing or nutrition (excepting the COVID-19 lockdown), the government’s proposed National Health Insurance scheme is an illustration of how government and its ideological allies in civil society and the courts conceive of its role.
The scheme proposes to centralize, and arguably monopolize, the management of healthcare matters in the hands of the Minister of Health. Many decisions previously reserved directly or indirectly to healthcare consumers and medical aids will be exercised by the government if the scheme is adopted. Freedom of choice will be all but eliminated in favor of the government’s ideology of Transformationism (faux transformation).
Even the Constitutional Court observed in the Grootboom case that whatever the scope of the right to access to housing entails, “there is, at the very least, a negative obligation placed upon the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing”. Constitutionally, the same principle applies to the right to access healthcare.
Other provisions scattered throughout the Constitution that puts it beyond doubt that freedom, not statist control, is contemplated by the Constitution, include the founding values in section 1, which put as a supreme constitutional principle the imperative that South Africa is founded upon the advancement of human rights and freedoms, and section 36, which allows the government to invade rights only if less restrictive measures do not exist. This is a high standard that the South African government arguably has never met in its multiple yearly incursions into our civil liberties.
That anyone – let alone judges and popular constitutional law commentators in the media – could interpret the Constitution as somehow bestowing government with the power to regiment society according to its political goals remains bewildering to me. This they usually do by placing section 9, the right to equality, on a pedestal above all other constitutional provisions, and construing it as giving the government a great deal of arbitrary authority. But they are not engaging the same constitutional text that reigns supreme over our society.
The experiment of constitutionalism requires more than a written constitution, but a constitutional culture. When we read the Constitution, we must read it constitutionally, that is, in line with the principles of constitutionalism, the most important of which is the limitation of government power and the guaranteeing of individual rights. Only then can South African society finally achieve meaningful transformation from our authoritarian past to a free future.
Martin van Staden sits on the Executive Committee and Rule of Law Board of Advisors of the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria and is the author of ‘The Constitution and the Rule of Law: An Introduction’ (2019).