The Constitution reads, “We, the people of South Africa, recognise the injustices of the past, honour those who suffered for justice and freedom in our land, respect those who have worked to build and develop our country, believe that South Africa belongs to all who live in it, united in our diversity”. Of fundamental importance, the Bill of Rights provides the cornerstone of democracy in South Africa. In the advent of the quarter of a century after South Africa finally attained democracy, Thabo Masombuka sat down with South Africa’s seventh Minister of Justice and Constitutional Development (And Correctional Services) on behalf of BBQ Magazine to take stock of the journey and progress made since the Constitution was signed into law in 1996, as such paving the way for a new constitutional order in South Africa.

If there is one man who stood against the tide in seeking to shape a new political destiny, by raising a voice against corruption and state capture, that man is Ronald ‘Ozzy’ Lamola, the former Deputy President of the ANC Youth League when Julius Malema was the President. He single-handedly protested outside the various sittings of the NEC of the ANC against what was then state interference and capture by the Gupta family in the administration of the state.

But no one listened. He now leads the most powerful cluster in the country—the justice and crime prevention cluster, having been appointed by President Cyril Ramaphosa in May 2019. As President Ramaphosa begins the process of considering the appointment of the Chief Justice of the apex constitutional court, a few weeks after the local government elections, we catch up and sit down with the Minister of Justice to understand how far the Constitution of the country—arguably the most highly celebrated liberal document across the world, has fared in changing the lives of its citizens, particularly the most vulnerable and the poor.

Asked what he thought about the value and significance of the Constitution 25 years after its enactment, the Minister premised his comments by stating that, “In the Constitution, we have been able to achieve what is set out in the preamble and the objectives. In addition, the Constitution has facilitated South Africa’s transition from the old order into the new order.”

Notwithstanding this, he is of the strong view that the Constitution is not, and should not be, an answer to all social ills and deficiencies, but must—as it does, provide a framework and opportunity for citizens to express their socio-economic challenges and rights.

That being the case, Lamola makes the point that the Constitution has given rights to citizens in terms of equality and dignity.

He further acknowledges that more still needs to be done to advance socio-economic rights of individuals, particularly those from poor and disadvantaged communities, as the socio-economic inequalities are still stubbornly high.

Despite the Constitution having given birth to various pieces of legislation, such as the Equality Act, the Employment Equity Act, the BBBBEE Act, and many other economic transformation interventions that are able to promote the participation of black people in the main stream of the economy, the majority still remain trapped on the periphery of the economy.

The perpetuation of such an unequal society remains largely unsustainable. The equality clauses ensure that everyone is equal before the law and has equal protection and benefit of the law.

Whether or not, in real terms, South Africans, especially poor black communities, are in fact equal, remains arguable.

When challenged on this, Minister Lamola states that those are the real challenges that the country needs to focus on in order to change the economic conditions of all South Africans, so that we build a real society based on equal opportunities.

27 years after democracy, black South Africans remain trapped in poverty, with unemployment and inequality rising astronomically. When asked about the income gap between the poor and rich widening radically—and how the Constitution has been able to help in this regard, Lamola said: “Yes, more still needs to be done. It is in the interest of all South Africans that we strive towards economic equality where everyone feels that they are part of the mainstream of the economy. In that way, that will result in a society where there should be an equal sharing and equal distribution of resources.”

He argues that there has been efforts to redress this and policy makers at the time had envisaged that these laws should advance meaningful progress and take us somewhere, including laws on land reform and redistribution.

Unfortunately, the outcome is different. Experience points us somewhere to the contrary. More efforts still need to be placed at the execution level. We still have a long way to go in achieving the objectives of these pieces of legislation.

Is the Constitution a fundamental compromise?

In this regard, we suggest to the Minister that some radical sections of the country have criticised the Constitution for being too soft and too compromising on the key fundamentals of transformation such as the property clauses, with the governing party having moved very slowly in addressing issues of redress.

Lamola is having none of that. He insists that it “is a misconception that the current Constitution is a compromise. What was the compromise was the 1993 version of the interim Constitution had the compromise and contained the sun-set clause.” He further states that the current version is a product of the National Assembly made up of representatives of all major political parties in the country.

“The Constitution is a transformative piece of intervention. Even Section 25 speaks about issues of land reform, restitution, and redistribution, stating what must be done in order for those land reforms to be achieved. However, the failures of land reform are well documented in what is now recorded as the Mothlante Report on constitutional land reform. “It is not that the failures of land reform are because of the Constitution, but issues related to nepotism and state capacity to enforce some of the laws and legislative interventions,” he reminds us. Former Deputy President, Kgalema Mothlante, has led a high level panel on the assessment of key legislation and the acceleration of fundamental change, in which land reform, restitution, redistribution, and security of tenure and the failures of land redistribution are discussed. When asked whether the current version of the Constitution is unambiguous and clearly defined in terms of intent and objective, Lamola asserted that it could not be more clear. He believes that the Constitution is not to blame, as the issues relate to state capacity. With the introduction of the Expropriation Bill, the Constitution was a well-thought document that could have been tested as a case study when it comes to economic interventions.

Transformation of the judiciary

Transformation and the acceleration of black judicial officers in general—and black women in particular, has been a serious topic of discussion for a long time. When pressed as to whether the next chief justice should be a black woman, Lamola chose to refrain from answering the question, but he did point to some key stats that back up a move in the right direction for transformation. He was of the view that there has been tremendous progress in the appointment of black female judicial officers, not only in the magistrates, but for the judges as well. A clear effort in that process is being put in place. The focus now is, however, on ensuring that there is content of the jurisprudence coming out of the courts to ensure that it is inherently transformative and deals with the imbalances of the past.

Of the 311 judges that were appointed after 20 years of the Constitution, at least 86 of them were women.As of 2019, at least 47.8% of South Africa’s magistrates were female. This substantially represents good progress in the transformation of the judiciary. In early 2020, while 207 of the 210 recommended female magistrates were appointed, Minister Lamola emphasised the fact that “a fully transformed judiciary is not only a constitutional imperative, but also goes a long way in further transforming our magistracy to reflect the demographics of our country.” Notwithstanding, the Minister believes that more still needs to be done to increase this.

Access to justice—a fundamental ethos of the Constitution

But what about access to justice?

There has been some progress in the setting up of more judicial offices, such as the introduction of new divisions, but is there a plan to perhaps put in place specialist courts to deal with a number of specific concerns for communities? The Minister stated that the transformation of the judicial system entails a broader concept of reform, which includes the reorganisation and rationalisation of the courts to have them aligned with the Constitution, also ensuring that the profession is transformed in such a way that state legal services and initiatives to improve areas of the justice system are put in place.

He does acknowledge that the process to accelerate access to justice is critical in dealing with justice-related matters as envisaged in the Constitution. However, the Minister was cautiously aware that there could not be a special court for every matter or issue that faces society.

However, the Department of Justice recognises that there could and should be areas that prioritise certain matters.

This is despite the fact that there are already existing courts such as the sexual offences courts, the labour court in relation to labour matters, the income tax courts, small claims courts, military courts, and competition courts. Lamola highlighted that there are plans to ensure that the land claims court, which was an interim court, is now going to be a permanent land court. The Bill to finalise this process is already before parliament and is being considered.The Minister has indicated confidence in the Special Commercial Courts, which are responsible for prosecuting high level fraud, stating that such has been accelerated as well in Limpopo and Mpumalanga. This has recorded a significant progress in broadening the provision of access to justice.Otherwise the state and the Justice Department would not be able to have sufficient resources and capacity to be able to manage and administer specialist courts for literally every issue and matter that affects society.

Do South Africans have reason to celebrate the progress of the Constitution?

The country’s Constitution has laid a foundation for the South African people to make an input in building the society that they want—in terms of building the construct between civil society and government. This, according to the Minister, is the biggest take away from the past 25 years. The country needs to selfishly guard against efforts to undermine the Constitution and contribute in ensuring that the Constitution becomes the dynamic living document that it was envisaged to be. So, in that respect, there is more reason to celebrate.

In his own words…

On whether the Constitution is still legitimate and relevant to the lives and conditions of the people…

The fact that the citizens, including the protesters, still participate in forums and platforms that are created by the Constitution, this is indicative of the relevance and importance of the Constitution. Naturally, there would be instances where there is conflict and contradictions created by the very same values in the Constitution, such as the right to life.

On the calls that effectively challenge the integrity of the doctrine of separation of powers by unfairly attacking the judiciary on the basis of state capture…

There are established processes within the judicial service commission that people are able to follow to report instances of misconduct and misbehavior by some judicial officers, otherwise it is unfair to attack and criticise the judiciary without substance and evidence. Otherwise, these attacks do not augur well on the integrity of the judiciary. Ordinarily, the attacks on the judiciary are unsubstantiated and unwarranted based on superfluous and frivolous attacks. Where such evidence exists, consequence management would follow after a procedurally fair process.

On the calls for the amendment of the Constitution…

We welcome the calls and initiatives that seek to amend the Constitution with the view to make it a dynamic and effective legal framework to advance the interests of the South African communities.

On transformation…

There has been tremendous progress in the appointment of black female judicial officers, not only in the magistrates, but for the judges as well. A clear effort in that process is being put in place. The focus now is, however, on ensuring that there is content of the jurisprudence coming out of the courts to ensure that it is inherently transformative and deals with the imbalances of the past.

On the value and significance of the Constitution, 25 years after its enactment…

In the Constitution, we have been able to achieve what is set out in the preamble and the objectives. In addition, the Constitution has facilitated South Africa’s transition from the old order into the new order.

On the income gap between the poor and rich widening radically—and how the Constitution can help in this regard…Yes, more still needs to be done. It is in the interest of all South Africans that we strive towards economic equality where everyone feels that they are part of the mainstream of the economy. In that way, that will result in a society where there should be an equal sharing and equal distribution of resources.

On land reform…

The Constitution is a transformative piece of intervention. Even Section 25 speaks about issues of land reform, restitution, and redistribution, stating what must be done in order for those land reforms to be achieved. However, the failures of land reform are well documented in what is now recorded as the Mothlante Report on constitutional land reform. It is not that the failures of land reform are because of the Constitution, but issues related to nepotism and state capacity to enforce some of the laws and legislative interventions.

On access to justice…

The transformation of the judicial system entails a broader concept of reform, which includes the reorganisation and rationalisation of the courts to have them aligned with the Constitution, also ensuring that the profession is transformed in such a way that state legal services and initiatives to improve areas of the justice system are put in place. I acknowledge that the process to accelerate access to justice is critical in dealing with justice-related matters as envisaged in the Constitution. However, I am aware that there can not be a special court for every matter or issue that faces society.

Minister of Justice and Correctional Services – Mr Ronald Lamola, MP

Ronald Lamola is a Member of Parliament and he was appointed by President Cyril Ramaphosa to form part of the National Executive and Cabinet as the Minister of Justice and Correctional Services of the Republic of South Africa on 29 May 2019.

Background

He was born in Bushbuckridge, Mpumalanga and Matriculated from Machaka Secondary School. He is the former Deputy President of the ANC Youth League. He was elected to the National Executive Committee of the ANC at the December 2017 Conference and he is also a member of the National Working Committee of the ANC.

Academic background

He obtained LLB Degree from the University of Venda in 2005. He holds three Post-Graduate Certificates in Corporate Law; Telecommunications Policy and Banking Law. He also has an LLM in Corporate Law from the University of Pretoria 2013-2014.In addition, he also obtained two Masters Degrees from the University of Pretoria. Lamola’s first Master’s Degree was in Corporate Law, where he explored the regulation of property syndication schemes.

His research looked at the roles of regulators in the regulation of taking deposits from the public, the conflation of the Companies Act, Banks Act and the Reserve Bank Act. Lamola got his second Master’s Degree in Extractive Law in Africa from the University of Pretoria in 2018. His research focused on Corporate Social Investment by the Mining and Energy Sectors.

His research suggests that the Department of Minerals and Energy’s enforcement unit is inadequately resourced to ensure compliance with the social labour plans by companies in the sectors.

Career outside politics

He is an admitted attorney of the High Court of South Africa. He formerly practiced as a Director of a private Law firm which specialised in Competition Law, Litigation, Communication Law and Banking Law.

He also worked in both the Mpumalanga Provincial and Local Governments as:

  • The Acting Spokesperson of the Mpumalanga Premier from January 2011 until October 2011.
  • The Director in the Office of the MEC for Culture, Sport and Recreation in Mpumalanga from July 2009 until January 2011.
  • A Transversal Unit Manager at the Govan Mbeki Local Municipality between March and June 2009. 

Who is Thabo Masombuka?

Thabo Masombuka is an economic transformation practitioner from Middelburg, Mpumalanga, based in Johannesburg.

He is an admitted attorney and the former chief executive officer for the Construction Sector Charter Council (CSCC), overseeing construction sector transformation and empowerment.

He is an activist with unimpeachable credentials in the areas of BBBEE fronting investigations, stakeholder facilitation, empowerment compliance, governance, and risk management.