Central to the constitutional narrative in South Africa is that the Bill of Rights was birthed in the negotiations leading up to the adoption of it in 1994. In legal circles it is generally believed that the architects of the Bill of Rights were mostly liberal lawyers influenced by the Constitutional jurisprudence of countries such as America, Canada and particularly Germany.
This narrative is fundamentally challenged by Tembeka Ngcukaitobi in his book, The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism. In the first seven chapters of the book he lays a foundation for his final chapter, “The Birth Of Constitutionalism.”
His story begins in the 19th century, in the midst of the frontier wars between the Xhosa and the British colonial administration. Although the story is his interpretation of what transpired, his research and use of original sources is impressive. I, however, have one reservation about the story he tells. Towards the end of the book the author writes: “In focusing on the past, this book attempts to understand the complexities of present-day South Africa.”
Some input on the relationship between the various other groupings in what was to become South Africa would have helped our understanding of the complexity of present-day South Africa. Here the brutal treatment of the Khoi Khoi and Bushmen I adopt Noel Mostert’s approach in his history of the Eastern Cape in “Frontiers”, where he argues that San was in fact a pejorative description used by the Khoi Khoi when referring to the Bushmen by one another and by the Bantu speaking people of South Africa comes to mind. Also the ruthless wars of conquest, variously referred to as the Mfecane and Difaqane. Thus for example, Ramabina Mahapa in a recent article alerts us to the fact that the Khoi Khoi and Bushmen’s claims to land in South Africa have been forgotten in the land debate.
And so on the one hand the powerful and profoundly insightful quote the author uses from Joseph Conrad’s Heart of Darkness at the beginning of Chapter 1 speaks of the horrors of European colonialism in Africa:
“The conquest of the earth, which mostly means the taking it away from those who have a different complexion or slightly flatter noses than ourselves, is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it; not a sentimental pretence but an idea; and an unselfish belief in the idea – something you can set up, and bow down before, and offer a sacrifice to… .”
On the other hand, in the same book, Kurtz’s final words before his death, “The horror! The horror!” speaks not only of the horror of European colonialism, but also of the horror of the brutality of Africa itself.
Touching on this not only would have done more justice to the complexity of South Africa in the 18th and 19th centuries, it also would have helped the reader grapple with the complexity of present-day South Africa.
However, what is beyond dispute in the first part of his story, is that evil structures were systematically put in place primarily by the British government to ensure that it could extract as much as it could from the people of South Africa, not least of all their land. And this alone makes the book compulsory reading for all, particularly for white Africans who become self-righteous when it comes to the debate concerning the redistribution of land.
This first part of the story is a very necessary context for the central purpose of the author in his book, to introduce the reader to South Africa’s first black African lawyers and the role they played in the struggle for a non-racial South Africa where all her people would be of equal worth. This context gives the reader a far better appreciation of the full extent of the enormity of the task which confronted these first black African lawyers.
I regard myself as someone who over the years has endeavoured to find the “real” story of South Africa, not least of all the jurisprudential history of the country. Reading this book and the author’s reference to ZK Matthews, reminded me of the challenging words of Matthews which I first read as a student in the nineteen seventies – he was given this advice by a mentor: “You may be tempted into facile views of the difficulties around you … You may be tempted to cut yourself off from the rest of your people, or on the other hand to an unthinking advocacy of what the mob clamours for. But I am sure you will examine all things with a clarity of intellectual vision, free from passions unless it be a moral passion for the good, and when you have thought things through to present your views with temperate courage.”
This book alerted me to the fact that I still have some way to go before I find the “real” story; before I am able consistently to be free from what the mob clamours for, not least of all the mob within me, indeed my own indoctrination!
As an example, besides the challenge to the accepted narrative of what gave birth to our Bill of Rights, which I will return to later, the account of the use of the test case was very illuminating. I am of that generation of lawyers who stood in awe of the creative use of the test case by Geoff Budlender and the late Arthur Chaskalson, and their colleagues at the Legal Resources Centre. Before I read this book I was simply ignorant of the fact that the test case strategy had already been used by black African lawyers some 50 years before the Legal Resources Centre came into existence. In this regard what is particularly impressive is the context in which someone like Pixley Seme in 1930 had to operate as a black African lawyer. Not only did he not have the local social capital of a Legal Resources Centre, unlike the Legal Resources Centre he was also isolated from any international assistance.
Given this reality, it is not so much his legal acumen which is impressive, it is his courage and dogged determination which fills the reader with awe.
However the greatest challenge for me was that the book has forced me to go back to the drawing board when it comes to my narrative about what gave birth to the present Bill of Rights. And here we must not only think concretely. We need to reflect on what gave rise to the specific content and meaning the protagonists in the book gave to words such as dignity, equality and freedom.
Referring to a document produced by the ANC in 1943, the “Africans’ Claims”, the author writes:
“In a post-democratic South Africa, the enduring nature of the Africans’ Claims continues to be recognised. Kgalema Motlanthe,…, has drawn parallels between the Africans’ Claims and South Africa’s Bill of Rights, noting the ‘continuity of both the aspirations of our people and their loyalty to a particular worldview.’ He is correct in doing so. Nearly half a century later, in 1989, another group of ANC-aligned lawyers drew up the ANC’s ‘Constitutional Guidelines for a Democratic South Africa’. They did not do so from a position of ignorance. The guiding light was the Africans’ Claims of 1943 – a document that weathered the storms of colonialism and apartheid. Today, the spirit of its founders lives on in the Bill of Rights that forms part of the Constitution of South Africa. And so, when the ‘Eurocentric origins’ of the country’s constitutional order are called into question, it is illuminating to investigate its unfolding history. We might then discover the truth that history ‘is not a calculating machine’; instead as Basil Davidson suggests, ‘It unfolds in the mind and the imagination, and it takes body in the multifarious responses of a people’s culture, itself the infinite circle mediation of material realities, of underpinning economic fact, of gritty objectivities’. ”
Of course, once again we must be courageous enough to carefully examine this “new” narrative “with a clarity of intellectual vision” and “to present our views with temperate courage.” The question which immediately comes to mind as needing further investigation is if the book does justice to the influence and input of non-ANC black African lawyers. However, at the very least the book is a fundamental challenge to the narrative that our Bill of Rights is largely a product mostly of liberal lawyers influenced by the Constitutional jurisprudence of countries such as America, Canada and particularly Germany.
That is answering the question at a concrete level.
At a deeper level the answer to who thought up the idea of a Bill of Rights, is not important. What is important is what the source is for giving content to concepts such as dignity, equality and freedom. This is a question as important today, as it is for the future and was for yesterday as the present black African lawyers on the Constitutional Court daily reshape the moral landscape of South Africa.
Thus for example the author writes: “By examining the forgotten origins of constitutionalism, South Africa may be better equipped to imagine a shared future based on equality.” He does not point the reader to what the source of this equality is, so necessary to understand what is meant by equality in the first place. As Berkman and Mattison III write when referring to the 1948 Nuremberg Declaration as an example: “(It) took one particular universal ethics path to articulating universal agreement on certain moral standards without articulating the moral basis for them”.
His reliance on Basil Davidson, touches on this conundrum of how one gives content to concepts such as equality, freedom and dignity. “ ‘It unfolds in the mind and the imagination, and it takes body in the multifarious responses of a people’s culture, itself the infinite circle mediation of material realities, of underpinning economic fact, of gritty objectivities’. ” The assumption being that the gatekeeper to the subjectivity of culture and the imagination is “gritty objectivities”.
Cordoza in 1921 responds to this gatekeeper of “objectivities” as follows: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them — inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in James’s phrase of ‘the total push and pressure of the cosmos,’ which, when reasons are nicely balanced, must determine where choice shall fall. In this mental background every problem finds its setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.”
And perhaps it is in this respect that the book does not do full justice to what informed the minds and thinking of his protagonists. He in effect argues that the explicit desire of “European settlers” was to produce “a docile class of black elites, willing transmitters of colonial culture. Rather, its products were prepared to stand up to the system, using the very tools of Western legal training in confronting its inequities….. However, as the black lawyers soon learnt, the entire edifice of the judiciary operated as an extension of Empire. Although their call was for the rule of law, African lawyers recognise that, without equality before the law, the rule of law could be turned into an instrument for rule by the powerful. And so, individual actors, such as the lawyers dealt with in this book, were indispensable to the just functioning of the rule of law.”
Yes they did use the very tools of Western legal training in their struggle. And in this respect the book is compulsory reading for all people who genuinely want to find the “real” story of South Africa.
But perhaps a more important point is what informed their struggle. An even handed treatment of the realities of the 18th and 19th century in South Africa would show that like the British government, the other power relationships in existence in South Africa at the time also trumpeted, not that all were equal before the law and are of equal worth, but that “might was right”.
The author quotes John Tengo Jabavu’s response in 1910 to the exclusion of all people other than white in the proposed governing of the Union of South Africa:
“The Native and Coloured people must now realise that an entirely new chapter in South African history is opening, in which they will have to depend on themselves and their South African European friends for the securing and maintenance of their civil and political rights. They must become united politically and, refusing to cling to any of the present political parties, must work for the creation of a new political party in the State which will unite the religious and moral forces – European and Natives – of South Africa upon lines of righteous legislation, justice and fair play irrespective of race and colour (my emphasis).”
Likewise, referring to Alfred Mangena’s response the author writes: “A law, founded on justice, should have been the foundation of South Africa, but as Mangena pointed out, the problem with the South Africa Act was that it was not based on ‘that which is just’. As a result, it ‘failed to qualify as a law’ ”. (As an aside, some 80 years later our first Chief Justice, Arthur Chaskalson in effect argued the same point, using the American jurist, Dworkin, as an authority for this proposition. I am sure he would have preferred to have used Mangena had he known about this quote!)
Here Jabavu and Mangena are not simply referring to tools of Western legal training. They are relying on an undergirding worldview, foreign to the culture of a British government focussed on exploitation for their own agenda, and indeed also largely foreign to the other cultures present in South Africa.
Now something else informed their thinking, central to which was the equality and worth of all people, no matter how humble or powerless. Might was not right.
Perhaps there should have been one more chapter (or perhaps there can be a follow up book!), dealing not with the political choice of constitutionalism as a form of government, but with what informed the minds of these lawyers when seeking to give content to “righteous legislation, justice and fair play irrespective of race and colour” and deciding on “that which is just”.
One area for such a chapter or book to address, would be to explore the vexed issue of the role of and the content which should be given to ubuntu. Vexed because despite even Justice Pius Langa in the death penalty matter (S vs Makwanyane ) conceding that the Constitution does not define ubuntu, it has been consistently used by the Constitutional Court as a crucial hermeneutical lens when giving content to concepts such as dignity, equality and freedom. Indeed retired Justice of the Constitutional Court, Laurie Ackerman in his book Human Dignity: Lodestar for Equality in South Africa, highlights the subjective difficulties when coming to giving ubuntu a meaning.
Such a chapter or book should also then look beyond the imperfect people who founded and ran the educational mission inspired institutions such as Lovedale, Healdtown and Fort Hare University (and indeed The Lovedale Press, so fundamental to black African intellectuals in the 20th century), which produced many of these black African lawyers, to the revolutionary message contained in the book they introduced to these lawyers. A book which made it quite clear that all people are equal in worth.
Ackerman, L. 2012. Human Dignity: Lodestar for Equality in South Africa. Cape Town: Juta Publishers.
Berkman, J and Mattison III, W.C. 2014. Searching For A Universal Ethic. Cambridge: Eerdmans Publishing Company.
Cordoza, B.N. 1921. The Nature of The Judicial Process. London: Oxford University Press.
Mostert, N. 1992. Frontiers: The Epic of South Africa’s Creation and the Tragedy of the Xhosa People. London: Pimlico.
S v Makwanyane and Another 1995 (3) SA 391.
|1.||I adopt Noel Mostert’s approach in his history of the Eastern Cape in “Frontiers”, where he argues that San was in fact a pejorative description used by the Khoi Khoi when referring to the Bushmen|