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THE ESSENTIAL CONTEXT
In City of Tswhane Afriforum applied for an interdict to prohibit the removal and changing of old street names by the City of Tshwane Metropolitan Municipality. Quite astonishingly and unacceptably Afriforum made the following statement in its founding affidavit: “socalled ‘historical injustices of the past’” [original emphasis].46 Afriforum lost the case with that statement alone. Be that as it may, in the majority of City of Tswhane the following is, without more, taken as fact without any reference to examples of the cities and towns that “reverberate with great sounds of veneration for the architects of apartheid” and the relentless full-scale-and-without-exception challenging of progressive or potentially conciliatory change to city, town, or street names: “[C]olonialism or apartheid is a system so stubborn that its divisive and harmful effects continue to plague us and retard our progress as a nation more than two decades into our hardearned constitutional democracy. Almost all cities, towns[,] and street names continue to reverberate with great sounds of veneration for the architects of apartheid, heroes and heroines of our oppressive and shameful colonial past. Virtually no progressive or potentially conciliatory change to city, town or street names goes unchallenged. There are fairly regular challenges to the equitable distribution of honour to heroes of all cultural or racial groups and a concomitant determination to preserve exclusivity to privilege and meaningful control.” [own emphasis]
Mogoeng, C.J. continued and held that:
“The injustices of the past are not to be pampered or approached with great care or understanding or sympathy. And the immeasurable damage racism or cultural monopoly has caused requires that stringent measures be taken to undo it. That approach will help us move away from exclusivity to opportunities, racial domination[,] and intolerance to inclusivity, social cohesion[,] and equitable access to opportunities.”48 [own emphasis]
Mogoeng, C.J. believes that the injustices of the past are to be approached with a lack of care, understanding, and sympathy, which would then, inconceivably, lead to inclusivity, social cohesion, and equitable access to opportunities. The current lack of social cohesion is ascribable to such an irresponsible and arrogant approach. If I may be so bold to refer our learned Chief Justice to the post-amble of the Interim Constitution entitled “National Unity and Reconciliation”:
“The adoption of this [Interim] Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt[,] and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for [U]buntu but not for victimisation.” [own emphasis]
In the same vein, Jafta, J. wrote a separate concurring judgment which has, as an implication, that “… any reliance by white South Africans, particularly white Afrikaner people, on any historically rooted cultural tradition finds no recognition in the Constitution, because that history is inevitably rooted in oppression”.49 In a minority judgment Froneman and Cameron, J.J., two white male justices, took the two judgments to task. They stated that a repressive, domineering, or discriminatory history may also be of concern to those who take pride in the achievements of King Shaka Zulu (despite the controversy about his reign) as well as those who nurture the memory of Mahatma Gandhi’s struggles in South Africa (despite the repugnant statements made by him about black Africans).50 The justices quite correctly stated that our country’s history is rich and complex, but in addition, such complexity means that history has a meaning for each of us, in diverse ways, which the Constitution accommodates and respects.51 They were emphatic by holding that “[t]he complexities of history cannot be wiped away, and the Constitution does not ask that we do so”, whereas Jafta, J. is of the mistaken belief that:
“The fact that the oppressive racist history exists at the level of fact does not mean that it deserves any recognition in the Constitution. Therefore, the implication which the second judgment says may be drawn from the first judgment, would be the correct one. … [R]acist and oppressive cultural traditions have no place in our constitutional order, even though they may exist in history. In contrast, such traditions belong in the dustbins of history where they ought to be buried.”
The Constitution must recognise the existence of and can never ignore objective fact or truth, since to do so would to impute a legal faction of non-existence upon the existence of an objective fact or truth.53 However, the Constitution determines the manner in which legal subjects can justifiably claim recognition and protection of (a sense of belonging grounded in) such fact or truth, which can then, naturally include a culture, tradition, practice, or even religion rooted in the past. Once this nuance is understood one would come to take cognisance of the slippery slope upon which Jafta, J. and Mogoeng, C.J. lost their judicial (impartiality) balance. Their argument reaches the following nonsensical conclusion: the fact that white Afrikaans people was pre-dominantly complicit in the injustices associated with apartheid means that white people cannot have a sense of belonging to any of their shared heritage, culture, and practices, since anything white, and especially Afrikaans, can be linked or related back to a ‘sense, reminder, signified or signifier, or otherwise of (racial) oppression, domination, or control’.
STRUCTURE OF THE CHAPTER
In this chapter the notion of a substantive constitutional revolution is used to show the (i) radical and (ii) substantive change undergone by the South Africa legal order. However, there was a history that preceded and led to the radical substantive de jure change. It has been made plain, in Chapter 2 and Chapter 3, that human dignity is of significant constitutional importance in a ‘post’-apartheid South Africa – the Constitutional Court has, in fact, adopted a dignity based substantive approach to equality. The constitutional importance of human dignity and equality in ‘post’-apartheid South Africa is ascribed to the past systemic practice of racially and sexually instigated unequal treatment that led to and is evidenced by indignity.3 The first two sections of this chapter, relating to the past that preceded the revolution and the utmost importance of respect for the dignity of all human beings, place the South African substantive constitutional revolution in its proper context.
The abovementioned context is followed by an exposition of Ackermann’s notion of a substantive constitutional revolution. Two of the three composite elements of Ackermann’s notion of a substantive constitutional revolution are discussed under the heading “Substantive Constitutional Revolution” and these elements are used to give content to Cornell’s first prong of her interpretation. Hereafter, the second element of a substantive constitutional revolution is further unpacked, under the heading “The Substance of The Revolution: Grundnorm(s)”, through reliance on the notion of a Grundnorm and it is submitted that both constitutional values and Ubuntu are the Grundnorms of ‘post’-apartheid South Africa. I then turn to the notion of a Rechtsstaat in a substantive sense to further add content to the substance of the new order that replaced the old. I conclude this chapter with the third element of a substantive constitutional revolution, denoting the perpetual nature of a substantive constitutional revolution. This perpetual nature is then connected to the notion of be-coming that occupies an important place in the meaning of social transformation and my ethical conception of equality. This chapter, in its final instance, unveils to the reader that, once ethically perceived, the South African substantive constitutional revolution is occasioned by, as consequences, the possibilities of, (i) an ethical interpretation of the Constitution, (ii) an ethical conception of equality, and (iii) a ‘post’-apartheid modernity, which modernity is elaborated upon and developed in Chapter 5.
Chapter 1
1. The Research Problem
2. Background and Motivation
3. Research Questions & Structure
3.1. Part I: The First Research Question
3.2. Part II: The Second Research Question
4. Context, Approach, and Method
4.1. Fundamental Concepts, Terminology, & Philosophical Thought Informing the Approach
4.2. Method
Part I: Substantive Equality & Inadequate Social Transformation
Chapter 2: Substantive Equality in ‘Post’-Apartheid South Africa
1. Introduction
1.1. Structure of The Chapter
1.2. Differentiation & The Right to Equality
1.3. The Role of The Law and Society
2. Interpretation of Section 9
3. Substantive Equality
3.1. Legal Subjects: Living Breathing Human Beings Existing Within a Specific Context
3.2. Legal Subjects: Radically Different From Each Other
3.3. Legal Subjects: Equal in Respect of Human Dignity
4. The Dignity Based Approach: Substantive Equality & Human Dignity
4.1. The Right to Life, Human Dignity, & Equality
5. Section 9: An Overview
5.1. The Harksen-test
6. Restitutionary Measures
7. Conclusion
Chapter 3: Section 9(2) & Inadequate Social Transformation
1. Introduction
1.1. Structure of The Chapter
2. Jurisprudential Inadequacy: Social Transformation
3. Shackles of a Grand Narrative of Our History and The Ossification of Subjectivity
3.1. The Essential Context
4. Section 9(2): Remedial or Restitutionary Equality
4.1. The Achievement of Equality and Remedial or Restitutionary Measures
5. The Nature and Consequence of Remedial or Restitutionary Measures
6. Qualifying as a Section 9(2) Measure: The Van Heerden-test
6.1. Arbitrariness, Rationality, & The Second Van-Heerden Requirement
7. Application of Section 9(2) Measures: Affirmative Action
7.1. The Barnard Dictum
8. Transformation and Race Relations
9. Conclusion
Part II: The South African Substantive Constitutional Revolution and The Consequences Thereof
Chapter 4: The South African Substantive Constitutional Revolution
1. Introduction
1.1. Structure of The Chapter
2. The Past That Preceded The Revolution
3. Respect For The Dignity of All Human Beings
4. Substantive Constitutional Revolution
4.1. Dispensational Change: Constitutional Revolution
4.2. Displacement of The Ideological Substance of The Old Legal Order: Substantive Revolution
5. The Substance of The Revolution: Grundnorm(s)
5.1. South Africa as A Substantive Rechtsstaat
6. Be-coming a ‘Post’-Apartheid South Africa
7. Conclusion
Chapter 5: The Consequences of The South African Substantive Constitutional Revolution
1. Introduction
1.1. Structure of The Chapter
2. Social Imaginary
2.1. Social Imaginaries, Social Theory, Reification of The Social
3. Multiple Modernities Thesis
4. ‘Post’-Apartheid Modernity & Ubuntu
4.1. Ubuntu: Ethical Inroads Towards a ‘Post’-Apartheid Modernity
5. Conclusion
Part III: An Ethical Conception Of Equality
Chapter 6: An Ethical Conception of Equality
1. Introduction
1.1. Structure of The Chapter
2. An Ethical Interpretation of Equality
3. Social Transformation
3.1. Deconstruction
4. The Meaning of Being (Existing as) a Human
4.1. Ethical relations Between Human Beings
5. Be-coming of The ‘Social’
6. Equality
6.1. Human Dignity
7. Conclusion
Bibliography
1. Articles
1.1. Electronic Articles
2. Books
2.1. Electronic Book Sections
2.2. Book Sections
3. Case law
3.1. South African
3.2. Foreign
4. Constitutions
5. Dictionary
6. Dissertations/Thesis
7. International Instruments
8. Inaugural Lecture
9. Journal Articles
10. Legislation
10.1. Acts of Parliament
10.2. Regulations
11. Reports
12. Websites
Appendix
1. Fundamental Concepts, Terminology, & Philosophical Thought Informing the Approach
1.1. ‘being’ and ‘Being’
1.2. Being (of a) Human and Da-sein
1.3. Being-in-the-world
1.4. Existence and Presence
1.5. Emergence of Existence As a Textual Event
2. Section 9(1): Equality as Rationality
2.1. The Right to Equality Before The Law
2.2. The Right to Equal Protection and Benefit of The Law
3. Sections 9(3)-(5): Equality as Fairness
3.1. Indirect Discrimination
4. An Ethical Interpretation of The Constitution
4.1. Interpreting The Constitution Ethically
