South Africa is in the grips of a “winter of dysphoria” – a time of discontent and anger that is not restricted to those in society who have been left behind in terms of wealth and opportunities. Professor Thuli Madonsela, director of the Centre for Social Justice at Stellenbosch University (SU), believes that this period of “unpeace” is rooted in a failure to understand and address matters of justice.

“Everyone is angry because we believe here that as long as there’s injustice somewhere, there can’t be sustainable peace anywhere,” she said. “So, even if you’re rich, you are not going to enjoy your money if there is injustice, because again, ancient societies – including the Bantu societies – knew that injustice will cause anger, resentment.”

Madonsela was speaking at an expert roundtable held by the Centre for Social Justice at Bertha Retreat in Franschhoek on Thursday, 17 August. Attended by a range of professionals, including lawyers, broadcasters and activists, it was an opportunity for reflection on social justice and constitutional achievements over the past 30 years of South African democracy.

Another member of the roundtable, Institute for Economic Justice (IEJ) co-founder Neil Coleman, pointed out that the UBS Global Wealth Report for 2023 showed the Gini coefficient for South Africa rose from 80% to 89% between 2000 and 2022. The Gini coefficient is a measure of income inequality, with 0% representing perfect equality.

The Constitution was a set of rules, said Justice Albie Sachs at the roundtable on social justice on 17 August. He added that it was up to the people of South Africa to use those rules to get the outcomes they wanted. (Photo: Tamsin Metelerkamp)

“The bottom 90% [of the population] held 30% of the wealth in 2000. That has now dropped, in 2022, to 19% [of the wealth] – the wrong direction. At the same time, we have a study by Wits University’s health department which documented one in five households in South Africa are sending a family member out to beg for food on a regular basis,” he said.

Read more in Daily Maverick: South Africa’s wealth inequality has increased markedly over past two decades – UBS

The “dystopia” of South African democracy is leading people to reject both democracy and the Constitution, according to Madonsela. She added that some people within the country had even taken to calling themselves “Constitution abolitionists”.

“I have come to the conclusion, though, that whilst people blame the Constitution… the problem probably lies with the implementation. And an example for us was during Covid-19, where instead of designing [policies] with and for all, and designing purposefully, it was one-size-fits-all,” she said.

The Constitution, in a way, is simply a set of rules, the rules of the game. We are the players.

Reflecting on the struggle against apartheid, Justice Albie Sachs – the anti-apartheid activist and former Constitutional Court judge – noted that it was important to remember the gains made by those who fought for democracy and the Constitution, as today, it is their ideas that give courage to people who demand a better life.

Read more in Daily Maverick: ‘Unity in diversity’ – Justice Albie Sachs reflects on the importance of participatory democracy in SA

“The Constitution, in a way, is simply a set of rules, the rules of the game. We are the players… and it’s up to us to use those rules to get the outcomes that we want. And if the rules are fair, if the rules imply generosity, openness, equal opportunities, where skills and unity and thoughtfulness… can produce good results, then if we have that inside ourselves, inside our thinking… we can achieve the outcomes that we want,” he said.

Former Public Protector Thuli Madonsela. (Photo: Gallo Images / Papi Morake)

Obstacles to social justice

There are four key obstacles facing the South African social justice sector, according to Tshepo Madlingozi, director of the Centre for Applied Legal Studies at Wits University. The first is a collapsing state.

“If you read the Auditor-General’s report on municipalities, and how many of them are dysfunctional, over 70% are dysfunctional… For us the impact is that we need to change our strategy, because social justice work relies on a functional state – we take them to court, they implement the change,” explained Madlingozi.

“I will use just one example in Limpopo, where we won a case for provision of water… We won that case about eight years ago and today there’s no implementation. Not because [the government] doesn’t want to implement, but [because] there’s no capacity.”

Another obstacle is the shrinking civic space, as more activists and lawyers in the sector are hit by Slapp (strategic lawsuit against public participation) suits, he continued, adding: “You see this trend all over the world. The more the state is collapsing, the more they turn towards repression of activists.”

The debates on the Constitution need to address these questions of power, particularly economic power.

Madlingozi also drew attention to the collapse of leftist movements in the country and what he described as the “implosion” of trade unions such as the Congress of South African Trade Unions and National Union of Metalworkers of South Africa.

“The fourth obstacle, which scares me the most, is increasing constitutional illegitimacy,” he said. 

“I’m not talking about decolonial scholars or abolitionists… I’m speaking of… ordinary people that are increasingly asking, ‘What has this Constitution done for us?’ And [saying], ‘If I want to really get my rights, I’m going to do something else. I’m going to bribe for a house; I’m going to bribe to get on the housing list.’ Or ‘I’m going to burn down a school to get a clinic; I’m going to burn down a clinic to demand a school. That’s the only way I can get things done.’”

Socioeconomic justice

Coleman linked rising wealth inequality with the growing desperation and hunger of ordinary people in the country. He referenced a recent incident, reported in Daily Maverick, where a mother killed her three children and herself, seemingly after a long battle with debt and hunger in the home.

Read more in Daily Maverick: Desperate Eastern Cape mom kills starving children and hangs herself

“The debates on the Constitution need to address these questions of power, particularly economic power, because these are not natural social phenomena. They are the outcome of the exercise of power,” he said.

“What I am arguing today is that central to that exercise of power has been the role of a department in government that some have described as a state within a state – that is National Treasury. It has an overarching role, which cuts across all three levels of government. And it cuts across every single government department.”

The IEJ, along with other civil society organisations, is attempting to ensure the extension and improvement of the Social Relief of Distress (SRD) grant, introduced during the Covid-19 pandemic. However, Coleman said that 50% of the poorest South Africans were being excluded from the grant due to regulations driven by Treasury.

“R35-billion is being spent this year on the SRD grant. That might sound a lot [but] it’s less than 2% of the national budget… Currently, about 8.5 million people are benefiting… but a paper by UNU-WIDER [United Nations University World Institute for Development Economics Research] documents that about 50%, about 31 million… of the poorest South Africans have benefited directly or indirectly from this grant,” he said.

One of the obstacles the social justice sector is facing is a collapsing state, said Professor Tshepo Madlingozi, director at Wits University’s Centre for Applied Legal Studies. (Photo: Tamsin Metelerkamp)

An austerity paradigm within South Africa was likely to drive the country further into debt, according to Coleman, since it would cause the gross domestic product (GDP) to shrink. As such, the debt-to-GDP ratio would become further skewed.

“One can say that the Constitution contains some seeds of transformation, but tilts more towards the entrenchment of economic power relations… It may be that some constitutional changes are necessary,” he said.

Other speakers highlighted further issues of concern in the social justice sector, such as participation in elections; women’s rights; the performance of Chapter 9 institutions; and the role of the media in informing the public.

Embracing ubuntu

The Constitution is meant to be a mirror of society, according to Madlingozi. However, he questioned whether people saw themselves in the foundational document, pointing out its failure to explicitly mention apartheid, colonialism or the concept of ubuntu.

“‘Human rights’ is but one grammar of dignity… it’s not the only grammar of dignity… Human rights has made itself – through colonialism, Westernisation – as the only type of dignity, but if you go to different countries, there are different ways of granting dignity,” he said.

“In some African cultures, it’s the notion of ubuntu. And when we do this work in communities, people don’t see social justice from a legal perspective, or from a cultural perspective. They see it from the perspective of ubuntu. ‘I deserve this because I’m a human being; I deserve this because the community must take care of me.’”

Madlingozi called on those in the social justice sector to reimagine their strategies and form a new agenda for the future, in the light of ongoing state collapse.

“I think part of it is to remove it a little bit from constitutionalism and from legalisation… and really say: what kind of society do you want to build? A society that takes care of people, a society where people – just because they are human beings – get certain things? And part of that, of course, is to use ubuntu with all its contestations,” he said. DM