Nelson Mandela Foundation

Con Court

In recent weeks we have been reminded again of how strongly populism is running in our country. Too often public space is brutal, characterised by threatening, bullying and even physical violence. 

The levels of violence being experienced by women, children and those perceived to be foreigners remain at frightening levels. Safe spaces are becoming more and more difficult to find (and to create). Notions of dignity and truthfulness are either ignored or played with fast and loose, forcing many under attack to resort to the courts to deal with fake news and the spreading of baseless rumour. Those with contrarian views are quickly labelled and dismissed. Fires, both literal and figurative continue to erupt, burning homes, which should serve as a sanctuary for families thus leading to insecurity and displacement. 

More and more we see spaces being regarded as safe only if they are exclusionary. Erstwhile political colleagues fall out and then vilify one another in the public domain. Whistleblowing is turned into an instrument for settling personal scores. And so on.

While the Foundation’s continuing litigation on gratuitous displays of the apartheid-era national flag has attracted widespread support and solidarity, it has also exposed us to the seamier side of public discourse and to the bullying of our staff who deal with routine office communications. In August the Equality Court ruled that gratuitous display of the apartheid flag constitutes hate speech, harassment and unfair discrimination in terms of the Equality Act. The application was brought by the Foundation and opposed by AfriForum. The latter has appealed the ruling and the matter remains under consideration by the Supreme Court of Appeals.

Less than 24 hours after the seminal ruling, the Deputy CEO of AfriForum gratuitously, and publicly, displayed the flag, under the pretext of academic debate. The Foundation was of the view that AfriForum’s actions were in bad faith and in contempt of court and therefore sought relief from the High Court. Our application was dismissed by the High Court and we are now seeking relief in the Constitutional Court.

There is another Constitutional Court case (South African Human Rights Commission and the Jewish Board of Deputies vs Cosatu) under way that speaks directly to the principles upon which our Equality Court ruling was based. We have been admitted as Friends of the Court in this case to ensure that our arguments on these principles and on hate speech in relation to the Constitution are heard in the matter. The hearing has been completed and the ruling is awaited.

As with many others, then, we rely on the Constitution always and resort to the courts when we need to.  We worry, however, at how easily constitutionalism is turned into an instrument for protecting power, privilege and property. This has been a constant line of enquiry for us over the last while and we continue to hold up the mirror to ourselves.

It is imperative that constitutionalism be turned into a tool for the fundamental transformation of our society and that more effective strategies be identified for turning the Constitution into a lived reality for all who live in South Africa. This, precisely, is the theme we have selected for the 17th Nelson Mandela Annual Lecture, which we will be convening on 23 November 2019 at the Soweto campus of the University of Johannesburg. Our speaker will be Chief Justice Mogoeng Mogoeng, someone eminently qualified to explore the theme Constitutionalism as an instrument for transformation and deepen our lines of enquiry. 

We look forward to a full house at what promises to be both a special event and a critical moment for public deliberation. If we are to make the country of Madiba’s dreams it is vital that South Africans learn to dream again …