Making The Constitution Work
By
Fred Jenkin
Metis Publications Law Service
 As contemplated in the 1993 (interim) and 1996 (final) Constitutions, our legislators have been far from idle during the first decade of the "new" South Africa. Our Constitution, with its allied Bill of Rights, has required sweeping legislative reforms in regard to inter alia, land, education, pensions, hospitals, health facilities, industry and employment. In all these areas the impact of the HIV/AIDS pandemic has been particularly hard.
The task of implementing this evolutionary new political and social dispensation, fulfilling - within prescribed time limits - a mandatory legislative programme, designed to reverse a multitude of racially discriminatory laws and simultaneously regulate the subsequent dynamic social transformation which is taking place in almost every aspect of human life and endeavour in South Africa, has proved both onerous and exacting.
In the normal course of events, Acts of Parliament provide for the objectives and purpose of legislation. Implementation thereof is effected by means of ministerial delegation of functions supported by Regulations and Policy Declarations which the relevant Minister (empowered to do so by the Act in question) makes in order to achieve these objectives.
Thus, to be effective, legislative reform of the magnitude envisaged in our Constitution requires both vision from our legislators and efficient instruments of government (organs of state) to carry out that vision. For a variety of reasons, progress in implementing these reform laws has left much to be desired.
In land reform the will, determination and energy have been exhibited, but each has been dissipated by two different but closely related factors. The first has been the unscrambling of an unsavoury egg of vast dimensions - the statutory legacy of apartheid land laws and those of the former "independent states and "self- governing territories". The second has been the difficulty encountered in marrying the "Western concept" ideals, upon which our Constitution is based, to the reality of traditional social structures and land use in the rural areas - into which such a huge proportion of our population was thrust in the dark days of apartheid and within which, in this period of job losses and unemployment, it largely remains.
In the matter of social pensions, reform has been plagued by provincial department incapacity, inexperience and sheer inefficiency, coupled with enduring obstinacy to admit the existence of such - e.g. vide the Judgement of the Supreme Court of Appeal: Case No.493/2000.
Education reform has been beset by vested interests wielding the weapon of legitimate criticism to delay, divert or dilute it, and health reform has been blighted by the presidential and subsequent ministerial denial of the fact that virtual decimation (or worse) awaits our population unless we act swiftly and decisively to arrest it.
The sum result has been that too much has been thrust upon organs of State which are either in no condition or of the wrong mindset to handle their task - and that task, in the light of the social transformation it contemplates, is to make the Constitution work.
It is a fact that some of our law reforms have given rise to unforeseen circumstances, sometimes with unfortunate results. It is also a fact that commercial pirates and opportunists who prey upon the most vulnerable abound in a society undergoing social reform. So also do organs of state use law reform as an excuse for inaction. As a general rule of thumb, the lower down the scale of functional responsibility such organs may be, the greater the degree of inertia. However, let it be said that staged or incremental law reform, on the scale required by our 1996 Constitution which is to be implemented within our particular social environment(s), does demand the wisdom of Solomon to divine all the circumstances which may possibly have relevance.
Conversely, it may sometimes prove impossible to legislate properly for circumstances which can indeed be anticipated or are already known to exist. In this respect, the ravages of HIV/AIDS have already made their presence felt. For example, upon whom and how does one place the onus for the attendance at or payment of school fees for a child who is a member of a family whose de facto head is a minor ? This is an increasingly common circumstance.
This scenario is bound to be repeated when the Communal Land Rights Bill becomes law. How does one legislate to ensure the security of tenure of such a family that has, in all probability lived for generations on the land in question. How does one ensure that the rules of the future CPA or other community organisation both recognise and grant full membership rights to the members of such a family (all minors)?
The question arises as to whether reliance might be placed upon the Courts or the authorities implementing such legislation to make a fair and feasible decision in such circumstances:-
The Courts? Yes - but a competent court is not in a position to deal with a matter until it has been brought before it for adjudication, i.e. an actual or perceived injustice must have already occurred before it can be brought to the attention of the relevant Court.
A government department, or functionary thereof? In the light of experience, such reliance might well be futile. Quite simply, the capacity and discretion to do so is not there. Sadly, it is our experience that it has been left to civil society to act to rectify such matters.
Recently, an extraordinary and most bizarre circumstance arose which, if we have properly understood the press reports, indicates that the legal representatives of an organ of State have declared their intention to use HIV/AIDS statistics compiled by an independent and unrelated authority to mitigate or substantially reduce the financial obligations imposed upon it by statute law - to the potentially permanent detriment of a blameless minor.
What person, what legislator, even one with the gift of clairvoyance, could have foreseen an occasion such as this? The fact that the origin of the matter, a Road Accident Fund claim, appears to have or had nothing whatsoever to do with HIV/AIDS, and there has been no reason to believe that it could or would have done, or even might do so, seems to have gone straight out of the window.
Such an example makes one wary of placing reliance upon authorities implementing legislation to make fair and feasible decisions where legislation is deficient or inadequate to meet the circumstances. In regard to the HIV/AIDS pandemic, the TRAC record shows that it is civil society that must stir itself into action to make the Constitution work, and it is civil society and the NGOs and community organisations within it which can be the most effective in doing so.
As a member of the HIVAN network, we hope we are part of that portion of civil society that both can and will take equally effective action should the need arise.
Fred Jenkin (Editor - Metis Publications Law Service)
Fred Jenkin is a law researcher. A member of the HIVAN network, he is also the co-author and compiler of several published works covering, inter alia, education law, land reform and traditional leaders. He is an acknowledged authority on legislation currently in force and effect in the Province of KwaZulu-Natal. In November 1995 he was appointed to the Panel of Assessors of the Land Claims Court.
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