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Justice Kollapen’s Human Rights Lecture unveils sobering insights about 30 years of democracy
Author: Corporate Communications and Marketing (Hannelie Booyens)
Published: 11/04/2024

​​​​On the eve of South Africa's commemoration of 30 years of democracy, the HF Oppenheimer Chair in Human Rights Law hosted the 18th Annual Human Rights Lecture at Stellenbosch University's (SU) Faculty of Law. A thought-provoking lecture focusing on the critical questions of poverty and inequality in South Africa was delivered by Constitutional Court Justice Jody Kollapen. 

The lecture was attended by members of the Rectorate, including Vice-Chancellor and Rector Prof Wim de Villiers, the Dean of the Law Faculty Prof Nicola Smit and Prof Sandra Liebenberg (H.F. Oppenheimer Chair in Human Rights Law), members of the judiciary, UN agencies, civil society organisations, academics and students.  

Kollapen's address delved into the historical context of South Africa's transition from apartheid to democracy, emphasising the country's constitutional commitment to inclusivity, equality and social justice. He highlighted the hope that millions of South Africans had after the first democratic election in 1994 that the Constitution would offer a departure from apartheid's brutality and facilitate radical social justice.   

“In many respects, our journey over the past 30 years has at some levels been a journey of success. But in many other respects, it has been an unfulfilled and a deeply contested journey," Kollapen noted.  

“Today, we are more united, I would say, than we were ever before. Even though there are significant fault lines in our society and new forms of exclusion exist, we have a political system, we have a legal system, we have a judiciary that's still subject to criticism. We have a vibrant civil society and a free and independent media. These are all signposts of a democracy that is working on some levels."  

He pointed out that thirty years post-apartheid poverty and equality continue to shape the lives of millions of South Africans.  

Most unequal society 

Kollapen underlined the importance of converting constitutional promises into tangible realities to ensure the long-term success of democracy. “The failure to do so carries enormous consequences. I can't imagine that we could sustain a democracy with the levels of poverty at which it currently exists. This isn't just a problem of the government and the people who seek to assert their rights. It's something that affects all of us because there's simply no way we could find that little safe corner and get on with our lives in the hope and the belief that somehow we'll be insulated from what is happening around us."  

People are entitled to ask what democracy has delivered for them, Kollapen said. In many parts of the world, there is a regression in democracy and if it does not deliver on its dividends, there is real risk people won't embrace or protect democracy, he warned. He described the upcoming seventh democratic election as a “potential watershed moment" in our country's democratic journey.  

Kollapen referenced a 2006 speech by former Chief Justice Pius Langa at SU where he described transformation as a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. “It's precisely in these institutional arrangements that power lies and reproduces itself and where the engine of change must reach and effect the changes a democratic order requires," Kollapen noted. “But it is also our inability to reach those places, or having reached them to rearrange them, that may see us hobble along and perhaps explain the contradiction of having arguably the most egalitarian constitution in the world but living in consistently the most unequal society in the world."  

Kollapen described the discomfort of some South Africans to confront their prejudices and insecurities in locating their place in our democracy. “It's too easy to latch on to a slogan such as the Rainbow Nation, but in reality, these fears and insecurities and these hopes and aspirations play themselves out on the playing field of our democracy."   

Kollapen referred to Former Deputy Chief Justice Dikgang Moseneke's book My Own Liberator that argued that while the protections in respect of socio-economic entitlements were praiseworthy and they promised a state-sponsored reduction of poverty, in practice socio-economic rights did not speak to how to restructure the economy in a way that rendered it more productive and inclusive.  

“Overcoming poverty and inequality is not just a matter of statistics or of balancing our hopes and fears. The reality we must confront is that our ability to address inequality and poverty will determine the sustainability of our democracy. We cannot offer the hope of the Constitution but demonstrate an inability to convert its promise to reality," Kollapen said.  

Getting to the root of inequality 

He encouraged the audience to think about what it means to live in an unequal society and who the beneficiaries and victims of inequality are. “We have to go beyond the surface and drill down to understand what the drivers and root causes of inequality are."   

Kollapen stressed that poverty and inequality are not just problems unique to South Africa but are global phenomena. He noted that achieving equality and socio-economic rights is a joint responsibility that we share as people of this country, with courts playing a vital role in determining compliance with the Constitution.  

Citing different landmark court rulings, Kollapen showed that the courts are obliged to consider that rights don't exist in isolation but in a specific historical and socio-economic context.   

He also warned against the commodification of human rights where only the rich can afford healthcare, education, personal safety and social security. “Virtually everything has been commodified. On the one hand, you have the private sector providing for these rights at a premium to those who can afford it. On the other hand, you find the state sector providing for these rights within their resources.  

“It then raises the question, if human rights are about resources, where did these resources come from? How do we ration them? How do we allocate them?" Kollapen said he didn't know the answers to these questions, but it reminded him of a quote by Mahatma Gandhi: “The rich must live more simply so that the poor may simply live." 

Kollapen provided an analysis of the reasonableness principle in the courts' framework in considering socio-economic rights claims. He referred to Prof Liebenberg's seminal book Socio-Economic Rights: Adjudication under a Transformative Constitution where she describes the features of a reasonable government programme in the context of socio-economic rights. 

Reasonableness review is not a static model of assessing government programmes, Kollapen remarked. For it to achieve the level of scrutiny required, it must be seen as a flexible and dynamic model of review that should not be approached and applied restrictively but generously. “Courts must be alive to both its institutional authority and limits, but also its mandate to prod the legislature and executive to fulfill their primary obligation to take the necessary legislative and other measures to fulfill socio-economic rights."  

He challenged the audience to think what future generations will make of our failure to deliver on the promise of social justice and equality for all.   

“I think what we are all required to do individually, collectively and institutionally is to locate our place in this democracy. And that's not easy.   

“Today, no one can explain the longevity of apartheid. In time, future generations will ask how a society with a history such as ours, armed with the Constitution that we have, acutely aware of the dire consequences inequality and poverty hold for our future, could have allowed poverty and inequality to endure for so long. What will our answer be?"