Page 18 - Constitutional Model for a Democratic South Africa By Prof Vuyisle Dlova

There are many reasons that are advanced by those who have refused to incorporate a Bill of
Rights in their constitutions. In the context of developing countries the “magnitude and
urgency of the development task facing the nation”, has often been mentioned. Other
reasons include the fragility of public order in the emerging states, possible conflict and
tensions between the judiciary and the government, the need to transform institutions in the
process of building socialism, and the fact that some of the rights that are said to be in need
of protection e.g., right to social security, cannot be afforded by the poor countries and to
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purport to protect them would therefore be idle showmanship.
The last objection, namely the plea of poverty, has largely been answered by state practice.
For example, both India and the Republic of Ireland distinguish between social or economic
rights which are recited in the constitution only as directives of policy, and individual human
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rights which are made justiciable. The distinction is useful as it would save the future
government of Azania/South Africa from being sued, for instance, for not providing decent
housing.

There is no doubt that the black majority government will inherit a bench that will, put mildly,
be sceptical of its policies especially those relating to the distribution of land and affecting
property rights. They could easily seize on a Bill of Rights, especially if it is drafted in the
usual form to include all those vague rights e.g., equal protection before the law, to attempt to
strike down all legislation they regard as inimical to their philosophy of right and wrong. But a
Bill of Rights need not contain such wide provisions.

Furthermore, the philosophical complexion of the present judges is a legacy of colonialism. It
simply means that it was not in the interest of the aliens to train and appoint indigenous
people to judicial office. This problem will be solved in time and to our mind it is not an
adequate reason for us to reject an institution that could help us curb abuse of power that
could result in bitterness and long term instability.

Similarly, in order to minimize the damage that a hostile bench could make in the meantime, it
could be necessary to separate in the constitution the issue of protection of individual human
rights like personal security, from protection of property rights. Protection of lawfully acquired
property is a duty of every state and constitution but only in society based on private property
can it be regarded as one of the fundamental human rights.

It is suggested therefore that the section on property rights and provisions for its acquisition
and compensation should be separate and should be carefully drafted to give the government
enough scope to make the necessary structural changes that will make South Africa a truly
non racial and democratic country with a just and equitable distribution of wealth.

The objections to a Bill of Rights based on fragility of public order seem to us not to be a very
serious one. Surely a properly drafted Bill of rights could qualify such right in such a way as
to exclude from protection any conduct that is aimed at undermining peace and stability or
which threaten the existence of the state itself.

At any rate where there is a serious breakdown or a threatened breakdown of public order
then a state of emergency could be declared in order to restore order. And as we suggested
above, the emergency clause could be drafted in such a manner as to exclude the courts
from inquiring beyond the procedure followed in making the declaration.