The Bill of Rights: An Ideological Tug-of-War

Since 1994, South Africa’s jurisprudence, specifically academic writing, praised the Constitution and the Bill of Rights and speaks with almost religious reverence about “enshrined rights.” In our jurisprudence you have theories like “transformative constitutionalism” and the writings extrapolating the vision of the Constitution for the new South African society.

As heart-warming as it is, these types of writing puffs the very fundamental functions of the Constitution into obscurity. The function of the Constitution is very simple: to spell out the rules of the game for the State. Its primary function is the limitation and regulation of State actions and powers.

Unfortunately, for most writers, it is not a social project; it is a legal document consisting of constitutional principles limiting the power of the State, and that is the function of all constitutions around the world.

Our legal tradition aligns with the Anglo-American legal tradition, which is why we compare our Constitution (and law) with countries such as the United States, Canada, Scotland, and Australia. But our Constitution is very peculiar in many ways. If you take a look at the constitutions of both the United States and Canada, you see a pantheon of rights with one singular purpose – limiting the State and its influence in the private lives of its citizens. It is this underlying philosophy, amongst others, that binds these countries into a collective legal tradition.

South Africa, in most cases, agrees with the philosophy of the United States and Canada regarding rights, but we have anomalies that complicate the working and interaction between the rights in Chapter Two of our Constitution. These anomalies cause an internal ideological contradiction in the document. I will discuss two of these contradictions.

The inclusion of welfare rights

If you look at the Bill of Rights of the United States and Canada, you see many of the same rights we have, for example freedom of expression, freedom of movement, rights of the accused, etc. But in South Africa’s Constitution you find socio-economic rights (I'll call them 'welfare rights') such as:

• Section 26, the right to housing;

• Section 27, the right to medical care, food, water and social security;

• Section 29, the right to education.

You do not find these in other constitutions sharing the same legal background, and the question is: why?

The answer is very simple: it contradicts the underlying philosophy of constitutional rights – that being to limit the power and influence of the State and thereby ensuring individual freedom. Welfare rights place constitutional obligations on the State to enact legislation to provide for what is promised, of course, funded by the State via taxation. One must always keep in mind that the State can distribute only what it takes from other citizens. Herein lies the contradiction in the Bill of Rights: we have rights that limit the State’s power, alongside other rights that expands the State's power, by means of funding those powers with public money.

I believe our constitutional drafters realised this contradiction, and framed the language of our rights in such a way that the State is granted the power to reconcile the juxtaposed ideological norms. This created even more ideological contradiction in the language of specific sections of the Bill of Rights itself.

Contradictions within rights themselves

The best way to illustrate this phenomenon is with reference to section 25 – your right to property.

If one looks at the American Constitution’s guarantee of property rights in the 5th Amendment, the language is simple:

“No person shall ... be deprived of life, liberty or property without due process of law, nor shall private property be used for public purposes, without due compensation.”

The right to property is protected in the negative (your property may not be taken), the same as in South Africa, but there is not a qualification placing any welfare obligations on the State. The 5th Amendment only states that if the State wants take your property (called 'eminent domain' to our 'expropriation') it is to be done with due process and compensation must be paid.

South Africa’s right to property in section 25 is a lengthy provision, with nine subsections spelling out one's right to property. These provisions are:

• Section 25(1), no person may be deprived of property without a law of general application, and no law may permit the arbitrary deprivation of property.

• Section 25(2), the expropriation of property (the State taking it) is allowed by law of general application, for public purposes subject to due compensation.

• Section 25(3), sets out factors to take into account when quantifying the amount of compensation.

These sections are basically the same as the American protection of rights, but we have sections 25(4) to 25(9) that create obligations for the State to make laws allowing for land reform, water reform, land claims, access to land, access to natural resources, and the redistribution of land subject to section 36 (the limitation clause).

Here the contradiction is clear: the first part of the section tries to limit the power of the State, and then the second part places obligations on the State to realise all these social goals. And when one reflects on this dichotomy one realises that for the State to fulfil its obligation, it needs to infringe on the very property rights this section protects. This is the contradiction within the section itself.

This contradiction creates immense complications in our legal discourse and I would argue leads to the effective limitation of the right itself, which makes the Bill of Rights largely superfluous. One might think I am being dramatic, but it has actually already happened.

The Constitutional Court judgement of Agri SA shows how this internal tension leads to the limitation of rights.

The case dealt with the expropriation of mineral rights and who owns it. An Act of Parliament called the Mineral Resources and Petroleum Development Act allowed mineral rights to be expropriated so that the “nation” acquires rights in the minerals, but the State controls all minerals in South Africa (called 'State custodianship'), and mining companies can lease the rights from the State. What was contentious was that the Act allowed for no compensation to be paid.

How did the Act get past section 25 of the Constitution, which demands compensation? Well, it took a bit of legal gymnastics. The Act created the State custodian fiction, as mentioned above, and the court found that section 25 only provides compensation to be paid if the State acquires the property as the owner. Because the nation ostensibly received the property rights in this case, the State did not have to pay compensation. Thus, the court affirmed this legal fiction, pursuant to the constitutional goals of section 25.

This was all made possible by the constitutional obligation to promote access to natural resources for all, as it is part of the public interest to do so (section 25(4)). The protection of the rights were made subject to the power of the State, which is a contradiction in ideology. There is a myriad of other problems with this judgement, such as legality - the court overstepping its power in interpretation – but the underlying contradiction, I believe, was the primary cause of this interpretation.

Without delving deeper into linguistic and ideological inconsistencies, the contradiction shown above is enough to identify the problem. You cannot limit and obligate the State in one sentence, as these concepts of the limited State and the involved welfare State are contradictory in their essence.

Conclusion

Constitutional rights discourse is a grandiose balancing act, which is itself very complex. However, the situation becomes even more complicated when the role of the State is not ideologically singular, as it is in the United States. We are not just balancing individual rights with each other; we are also balancing the limitation of the State with its welfare obligations.

The first balancing act is not a problem, because the compromise between individual rights can amount to a win-win situation, as no right categorically excludes another (by these rights I mean the normal rights of freedom, not the welfare rights). Balancing the limited State with the welfare State is a much more problematic aspect, as these concepts are mutually exclusive. You cannot limit the State by obligating it to do something.

We have a long way to go in our rights discourse to solve these ideological impasses, and we cannot simply ignore these contradictions in the Constitution and hope for the best. How to balance these contradictions? I truly have no idea, but what I do know is that these contradictions need to be addressed in order to avoid that the purpose of these rights, i.e. ensuring the freedom of the people, is not snuffed out.