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A government review of the Constitutional Court should find that no provision of the Constitution has been an obstacle to transformation, former chief justice Arthur Chaskalson said on Thursday evening.
Social and economic transformation was indeed possible within its framework and perhaps needed only minor amendments if necessary, he said in a public dialogue in Cape Town.
Justice and Constitutional Development Minister Jeff Radebe had released a discussion document on judicial transformation in February, saying the decisions of the Constitutional Court and the Supreme Court of Appeal would be reviewed to establish the extent to which their decisions had contributed to the reform of South African jurisprudence and law.
It would analyse jurisprudence and socio-economic rights, particularly the eradication of inequality and poverty, and the enhancement of human dignity. It would also examine the state's capacity to realise the outcome of such court decisions.
Chaskalson said the African National Congress (ANC), in its discussion documents for the “second transition” of the country, had identified key challenges to transformation, most notably that too few people were employed and that the quality of education for especially black people was still poor.
“I am not aware of any decision (by the court) that could be said to cause these factors. The causes of poor education are complex and rooted in the past. However government has the responsibility to provide a good education. There is nothing in the Constitution stopping government from providing this,” he said.
Corruption was identified as another key threat to democracy.
“There is nothing in the Constitution or the decisions of the courts that facilitates corruption. Corruption is a threat to constitutional democracy.”
The government needed to have the commitment and political will to fight corruption within its ranks, a task he described as “very, very difficult”.
Chaskalson said the country's widespread poverty and extreme and persistent inequality would eventually lead to dissent and instability, a far greater threat to democracy than the perceived threat of judicial power and its decisions.
He said service delivery protests were likely to increase and grow more intense if the root causes were not addressed.
“Lessons of history warn us what could happen in such situations... If key challenges are not addressed I think our Constitution will, indeed, be in danger.”
The former chief justice was satisfied that the judiciary itself had seen transformation, stating that over 60 percent of sitting judges were black and over 30 percent were women.
It could, however, see more women sitting on the bench.
When asked what the public could do to help with transformation, the 80-year-old said a mind-set change was needed. The privileged needed to accept there was poverty and inequality and show “a positive commitment (to change this) instead of whining condemnation”. - Sapa