Broken Promises: Is Democratic South Africa on the Brink of Being a Failing State?

The following Op-Ed is written by Sherylle Dass, Zimkhitha Mhlahlo & Tsukudu Moroeng of the Legal Resources Centre

In 1994, South Africa transitioned from an undemocratic apartheid state into a constitutional democracy governed by a Constitution which holds basic values and principles such as human dignity and equality. The Preamble of the Constitution of the Republic of South Africa, adopted in 1996, sets out the main goals of our Constitution: to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights, to lay the foundations for a democratic and open society in which government is based on the will of the people, to ensure that every citizen is equally protected by law, to improve the quality of life of all citizens, to free the potential of each person, and to build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.¹ The success of any Constitutional Democracy thrives on these democratic values and promises a better life for all through the realisation of not only civil and political rights but socio-economic rights as well. 

The Constitutional Court in the Raduvha case stated that “over two decades ago, we adopted our Constitution. In doing so we signalled a decisive break with our past – a ringing rejection of a history of denial of human rights to our people. We started an ambitious and laudable project to develop, nurture and infuse a culture of respect for human rights in all aspects of our lives. We all committed ourselves to a new and egalitarian society founded on values of human dignity, equality and freedom for all”.²

Despite promises by the state to improve the lived realities of our people through advancing a transformative constitution, this “egalitarian society founded on values of human dignity, equality, and freedom for all, remains elusive”. Whilst a constitutional supremacy guarantees civil and political rights, it does little to address structural inequality and economic apartheid. The struggle for the emancipation of black South Africans ended in 1994 and signalled the dawn of a new struggle for the economic emancipation and the realisation of socio-economic rights for all its people. The report card on South Africa’s performance in the last 27 years since the end of the first struggle, however, is abysmal.

The ideological belief that our Constitution is a symbolic bridge between our past and our future can only be truly transformative if there is an effective and accountable government that is committed to addressing structural inequalities, arising out of the underlying systems of oppression, inherited from the apartheid state, which continues to thwart the economic emancipation of historically marginalised groups. 

The chasm between the rich and poor in contemporary South Africa is not inevitable. It is a consequence of policy choices, neglectful abrogation, and malignant violations of international and constitutional human rights that successive governments have made in South Africa, and which have served to effectively maintain inequality over time. The rise of authoritarian and populist politics, not only within factions of the ruling party the Africa National Congress but also in major opposition parties the Democratic Alliance and the Economic Freedom Fighters, fuel racial tensions, influence attacks on democratic institutions and the rule of law. This, and the absence of ethical leadership along with elevated levels of corruption, all serve to dilute the potential towards a fully transformative constitutional democracy that delivers on its promises of a better life for all South Africans.

The Failure to Fulfil The Constitutional Promise

The transformative constitutional promise and the guiding principles were a starting point, not the final destination. While our democracy is arguably a young democracy, the state has failed to respect, promote, and fulfil key socio-economic rights such as access to education, housing and healthcare as well as failing to adequately implement land reform for most of the population. The socio-economic and spatial disparities in the present day resemble the disparities during apartheid – a testament to the continued legacy of apartheid laws, the effects of which the state has failed to reverse. 

South Africa is regarded as one of the most unequal states, with one of the lowest life expectancies, in the world.³ The state’s failure to redress the legacy of apartheid spatial planning through progressive and transformative policy and legislative reform, for example, can be linked to the failing state of our basic education system and the inequalities in the provision of basic education in South Africa. The right to basic education is one of the most, if not the most significant fundamental right and is recognized as such not only within the wording of our own Constitution but internationally, as a foothold towards the achievement of other socio-economic rights essential for not only the development of the individual and as part of active citizenry, but for the development of the state and its economy. The Constitution has elevated this right above other socio-economic rights and declares that this right is immediately realisable and is not subject to progressive realisation. Access to education is one of the most effective solutions to develop the lives of poor South Africans.⁴ 

The South African education system during apartheid was heavily segregated by race, with white students benefitting disproportionately from funding and resource allocation. Apartheid spatial planning entrenched this segregation and created a delineation between white privileged schools and black schools. During the transition to democracy between 1990 and 1994, there was significant change in funding and resourcing to foster educational equity. However, equity was a concern for many since there were fears that “declines in the quality of these privileged schools would lead to ‘White flight’ where White students and White teachers would move to the private sector En-masse, resulting in a low-quality Black public system and a higher-quality White private system”.⁵ The compromise, to allay this fear, was to maintain the status quo, with the South African Schools Act of 1996 creating a safeguard that allowed public schools to charge fees so that they could maintain their level of resources and stay public, put crudely to maintain their privilege. 

Despite the elevation of the right to education and the need to redress the inequitable two public-school apartheid system that heavily favoured the white minority, the State has, to a significant extent, maintained an unequal education system that now heavily favours the privileged minority at the exclusion of many black and poor learners. For example, the Department of Basic Education has failed to meet its 2019 deadline to eradicate mud schools and build enough classrooms to address the problem of overcrowding in public schools.⁶ Some public ordinary schools lack access to basic services such as water while some still use pit-toilets as their main ablution facilities. 

Equally, laws regarding the spatial and urban planning of South Africa are a remnant of apartheid legislation and policy, upholding segregation and inequality in present-day South Africa. Planning laws both aid the advancement of white communities and hinder growth of black communities. 

Similarly, the State has failed to make progressive and transformative reforms in access to adequate housing. Spatial justice for similar reasons remains elusive for the majority of black South Africans with the current configuration maintaining the privilege of those who benefited from apartheid spatial planning, and a fraction of middle-class black people being invited to the party. The foundations of the housing needs of South Africa’s urban poor are inextricably linked to apartheid spatial planning. Acknowledging this interrelationship is essential to seeking workable solutions or alternative approaches to meet the housing needs of vulnerable and marginalised urban inhabitants. The foundation of various cities in South Africa is testament to the inequality in the country, since they are built around the colonial ideologies that degraded African communities. While borders between cities, townships and rural areas were legally abolished, the effects of the Groups Areas Act still manifest themselves; affluent areas are populated by majority white people and the emerging black middle class with the poor and working-class stuck in congested informal settlements that lack adequate access to water, sanitation and other basic amenities that form part of the right to access housing. Much of the population who live in peripheries of cities live in inhumane housing conditions.

The provision of housing was identified as a priority of reconstructing the post-apartheid state through the Reconstruction and Development Programme (RDP) in 1994 and later, with the right to housing enshrined in the Constitution in 1996. However, the housing delivery backlog attests to failures, with many recipients of government-subsidised housing having been on waiting lists for more than 20 years.  Driven by a plethora of factors, many have taken matters into their own hands by occupying pieces of unoccupied land, resulting in more informal settlements.

The state has not only failed to provide housing, but it has also purposely failed to respect property rights and, in many instances, violated constitutional protections against deprivation of property, destruction of homes and evictions of…