AuthorThe Honourable Mogoeng MOGOENG Chief Justice of the Republic of South Africa.
Date01 December 2015
Published date01 December 2015
Citation(2015) 27 SAcLJ 1
I. Introduction

1 Your Excellency, Sundaresh Menon, the Chief Justice of the Republic of Singapore and President of the Singapore Academy of Law, Vice Presidents of the Academy, Your Excellency the High Commissioner of South Africa to Singapore, Members of the Senate, distinguished guests, ladies and gentlemen, I greet you.

2 It is a singular honour and privilege to have been invited by my friend and colleague Chief Justice Menon, to deliver the Singapore Academy of Law Annual Lecture under the topic: “Twenty Years of the South African Constitution: Origins, Aspirations and Delivery”. The lecture could not have come at a better time. For it affords us the opportunity to reflect on where South Africa comes from, what informs its national vision, whether this vision was the dream that has been deferred or realised, and if actualised, to what extent.

3 One of the major things Singapore shares with South Africa, is that the founding fathers of our democracies are lawyers and they are world-acclaimed visionaries and nation builders. The fundamental difference is though, that one lived and ruled long enough to see his dream fully realised, whereas the other died long before the necessary radical paradigm shift could take place, on all fronts. This lecture takes place a little under a year after the death of the beloved founding father of our nation, Nelson Mandela or Tata Mandela. It is in his memory that I deliver this lecture, hoping to rekindle the fire of oneness, reconciliation, justice and shared prosperity within me and within the hearts of the few South Africans present here and those who will hopefully read this paper. By way of introduction, I also say that the most significant change that 20 years into the democratic order has delivered, is socio-political freedom. Anybody may be President, Minister, Member of Parliament or even Judge as long as they enjoy the requisite support or are suitably qualified and meet the necessary requirements. What still cries out loud for attention are the questions around land ownership and the equitable distribution of opportunities in the economic sector of our country.

4 Last year, the Constitutional Court had occasion to highlight these critical aspects of the state of our nation as follows:1

South Africa is not only a beauty to behold but also a geographically sizeable country and very rich in minerals. Regrettably, the architecture of the apartheid system placed about 87 percent of the land and the mineral resources that lie in its belly in the hands of 13 percent of the population. Consequently, white South Africans wield real economic power while the overwhelming majority of black South Africans are still identified with unemployment and abject poverty. For they were unable to benefit directly from the exploitation of our mineral resources by reason of their landlessness, exclusion and poverty. To address this gross economic inequality, legislative measures were taken to facilitate equitable access to opportunities in the mining industry.

That legislative intervention was in the form of the Mineral and Petroleum Resources Development Act. … It also had the deliberate and immediate effect of abolishing the entitlement to sterilise mineral rights, otherwise known as the entitlement not to sell or exploit minerals. This ought to come as no surprise in a country with a progressive Constitution, a high unemployment rate and a yawning gap between the rich and the poor which could be addressed partly through the optimal exploitation of its rich mineral and petroleum resources, to boost economic growth.

And in conclusion we said:2

The MPRDA constitutes a break through the barriers of exclusivity to equal opportunity and to the commanding heights of wealth-generation, economic development and power. It seeks to address the injustices of the past in the economic sector of our country in a more balanced way, by treating individual property rights with the care, fairness and sensitivity they deserve.

5 Poverty, the inability to readily access the best available educational institutions and job opportunities, as well as the lack of capacity or means to effectively dictate the economic direction and practices of our country, are inextricably linked to these two key pillars: the land and the economic question.

II. The origin

6 It all started when colonialists came to the southern-most tip of Africa. The indigenous people of South Africa were systematically

deprived of their land which was their primary source of pride and livelihood. When apartheid took effect, different African ethnic groups were confined to very small pieces of land known as “homelands”. This is where they were supposed to take “full responsibility” for their “own affairs” by governing themselves in these territories which could, and in some instances did, graduate into “independent countries”. Even those who lived in the periphery of cities, in townships like Soweto, were regarded as temporary sojourners in white South Africa, whose rights of citizenship could only be enjoyed in their tribal territories. It was divide and rule at its worst.

7 This painful past was touched on by the Constitutional Court in the First Certification case in these terms:3

South Africa's past has been aptly described as that of ‘a deeply divided society characterised by strife, conflict, untold suffering and injustice’ which ‘generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge’. From the outset the country maintained a colonial heritage of racial discrimination: in most of the country the franchise was reserved for white males and a rigid system of economic and social segregation was enforced. The administration of African tribal territories through vassal ‘traditional authorities’ passed smoothly from British colonial rule to the new government, which continued its predecessor's policy.

From time to time various forms of limited participation in government were devised by the minority for the majority, most notably the ‘homeland policy’ which was central to the apartheid system. Fundamental to that system was a denial of socio-political and economic rights to the majority in the bulk of the country, which was identified as ‘white South Africa’, coupled with a balkanisation of tribal territories in which Africans would, theoretically, become entitled to enjoy all rights. Race was the basic, all-pervading and inescapable criterion for participation by a person in all aspects of political, economic and social life.

8 Black people suffered the worst inhuman treatment imaginable. They were disenfranchised, rendered landless in their native land and had to contend with the worst form of deprivation, indignity and human suffering. Slums and the lowest-paying jobs were and are still largely “their preserve”. An education system designed to stultify the intellectual development and growth of black people, was introduced to ensure that they did not develop the capacity to analyse and begin to challenge more meaningfully the legitimacy of the apartheid system. Science, technology, economics and engineering were some of the fields

of study that were virtually inaccessible to them. Numbers of black law graduates were tightly managed. Sports, recreational and medical facilities available to black people were predictably substandard notwithstanding the economic strength we have always commanded, as a country.

9 We were, for many years, therefore, a nation at war with itself. A deeply-divided nation, objectively desperate for unity and reconciliation but for some reason unable to connect with this reality. The deep and bleeding wounds that we had inflicted on ourselves over the years, had to be healed. When it finally dawned on all our leaders that the time had come to put an end to the war that had claimed many precious South African lives, all of the above realities had to feature prominently in guiding the constitutional dispensation that was going to order our lives, for generations to come.

10 Most political parties agreed to have a convention at which discussions took place on how best to change the South African political and constitutional landscape, for the common good of all our people. This extremely difficult and taxing process culminated in our Interim Constitution.

11 We started our journey as a constitutional democracy with that Interim Constitution whose aim was to provide:4

… a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.

12 After the first democratic elections, the final Constitution was drafted to reflect the dominant aspirations of all South Africans. It was signed into law by former President Mandela on 10 December 1996, in Sharpeville,5 Gauteng. Madiba cemented that historic occasion6 with these words:7

Today we cross a critical threshold.

Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in the Constitution.

Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.

Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa with all their diversity.

Let tolerance for one another's views create the peaceful conditions which give space for the best in all of us to find expression and to flourish.

Above all, let us work together to banish homelessness, illiteracy, hunger and disease.

III. Constitutional aspirations

13 The constitutional aspirations of our people are summed up by...

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