In partnership with the Hanns Seidel Foundation, on 29 March 2022, the Nelson Mandela Foundation hosted a dialogue on constitutionalism and the rule of law. Constitutionalism has been an overarching theme for Foundation work for the last five years, and questions about the rule of law have been pressing for attention since the wave of public violence in parts of Gauteng and KwaZulu-Natal (KZN) in July 2021.
During the first democratic administration in South Africa (1994-1999) the top priority was to make democracy stick. This, in a context where over and above colonial and apartheid legacies the social fabric had been profoundly damaged by a decade of intense violence – with civil war in many parts of the country – and a deeply-rooted culture of distrust in the law and all its institutional instruments. That first administration understood that building trust quickly and creating societal spaces for healing were critical.
The panel for the dialogue comprised Deputy National Director of Public Prosecutions Advocate Anton du Plessis (keynote speaker), Sello Hatang (Chief Executive of the Foundation, Professor Sandy Africa (University of Pretoria) and Ottilia Maunganidze of the Institute for Security Studies. Du Plessis reflected on his experiences working under Bulelani Ngcuka, the first head of the National Prosecuting Authority (NPA) in the 1990s. Drawing lessons from that period, Du Plessis scoped the multiple challenges facing the NPA today. He concluded his address with the promise: “The NPA will not let Madiba down!”
Hatang offered a reflection on a recent Foundation project aimed at better understanding the challenges to social bonding and the rule of law in KZN in the wake of the events of July 2021. Between November 2021 and May 2022, the Foundation conducted a mapping exercise in the province, with the support of the Old Mutual Foundation. Its goal was to understand better the nature of the challenge and to identify who is doing what. The Foundation met with structures of the state, the private sector, and civil society, visited many communities, especially in the Phoenix-Inanda-Ntuzuma-KwaMashu area, and participated in three community social cohesion workshops. Hatang’s conclusion was disturbing: “Cultures and practices of lawlessness are rampant. What we are describing is a situation which is, if anything, even more volatile than the one which was exploited by saboteurs last year. It will only take a tremor to unleash another tidal wave.”
Africa, who had headed the Expert Panel into the July 2021 Civil Unrest, and Maunganidze, offered shorter reflections in response to the inputs by Du Plessis and Hatang. Africa explored three main lines of enquiry, each of them suggesting a potentially critical instrument in promoting the rule of law – racial justice, political agency, and the role of traditional authorities. Maunganidze outlined strategies for fixing institutions that have been broken and emphasised the importance of South Africa’s Chapter 9 institutions.
As multiple recent studies have shown, trust in the law and all its institutional instruments has not been at such a low ebb since 1994. Moving forward, transforming extractive and dysfunctional institutions into sites of excellence must be a priority. Du Plessis spoke with confidence about prosecutorial spaces in South Africa, saying “we have the best prosecutors in the world.” His message for other sectors was “find the pockets of excellence,” and build from there. This resonated strongly with Hatang’s account of the Foundation’s work in a number of sectors, with a focus on locating elements within the state willing to become part of a well-functioning and progressive ecosystem.
Despite this positive energy, the dialogue highlighted the challenge of resilient apartheid (and, arguably, colonial) patterning in South Africa, which manifests spatially and in every other way. Disturbing levels of poverty and inequity have been deepened by the impact of Covid 19, the country’s slow economic recovery from lockdowns, the wave of public violence in July 2021, and the economic reverberations of the war in Ukraine. Levels of destitution are disturbing. As are the numbers of households barely able to put food on the table. Until these patterns are shifted meaningfully, the well of desperation and frustration will grow and continue to undermine respect for the rule of law.
Anton du Plessis's full speech was published in the Daily Maverick. You can read it here.