As
contemplated in the 1993 (interim) and 1996 (final)
Constitutions, our legislators have been far from
idle during the first decade of the "new"
South Africa. Our Constitution, with its allied Bill
of Rights, has required sweeping legislative reforms
in regard to inter alia, land, education, pensions,
hospitals, health facilities, industry and employment.
In all these areas the impact of the HIV/AIDS pandemic
has been particularly hard.
The task of implementing this evolutionary new political
and social dispensation, fulfilling - within prescribed
time limits - a mandatory legislative programme, designed
to reverse a multitude of racially discriminatory
laws and simultaneously regulate the subsequent dynamic
social transformation which is taking place in almost
every aspect of human life and endeavour in South
Africa, has proved both onerous and exacting.
In the normal course of events, Acts of Parliament
provide for the objectives and purpose of legislation.
Implementation thereof is effected by means of ministerial
delegation of functions supported by Regulations and
Policy Declarations which the relevant Minister (empowered
to do so by the Act in question) makes in order to
achieve these objectives.
Thus, to be effective, legislative reform of the
magnitude envisaged in our Constitution requires both
vision from our legislators and efficient instruments
of government (organs of state) to carry out that
vision. For a variety of reasons, progress in implementing
these reform laws has left much to be desired.
In land reform the will, determination and energy
have been exhibited, but each has been dissipated
by two different but closely related factors. The
first has been the unscrambling of an unsavoury egg
of vast dimensions - the statutory legacy of apartheid
land laws and those of the former "independent
states and "self- governing territories".
The second has been the difficulty encountered in
marrying the "Western concept" ideals, upon
which our Constitution is based, to the reality of
traditional social structures and land use in the
rural areas - into which such a huge proportion of
our population was thrust in the dark days of apartheid
and within which, in this period of job losses and
unemployment, it largely remains.
In the matter of social pensions, reform has been
plagued by provincial department incapacity, inexperience
and sheer inefficiency, coupled with enduring obstinacy
to admit the existence of such - e.g. vide the Judgement
of the Supreme Court of Appeal: Case No.493/2000.
Education reform has been beset by vested interests
wielding the weapon of legitimate criticism to delay,
divert or dilute it, and health reform has been blighted
by the presidential and subsequent ministerial denial
of the fact that virtual decimation (or worse) awaits
our population unless we act swiftly and decisively
to arrest it.
The sum result has been that too much has been thrust
upon organs of State which are either in no condition
or of the wrong mindset to handle their task - and
that task, in the light of the social transformation
it contemplates, is to make the Constitution work.
It is a fact that some of our law reforms have given
rise to unforeseen circumstances, sometimes with unfortunate
results. It is also a fact that commercial pirates
and opportunists who prey upon the most vulnerable
abound in a society undergoing social reform. So also
do organs of state use law reform as an excuse for
inaction. As a general rule of thumb, the lower down
the scale of functional responsibility such organs
may be, the greater the degree of inertia. However,
let it be said that staged or incremental law reform,
on the scale required by our 1996 Constitution which
is to be implemented within our particular social
environment(s), does demand the wisdom of Solomon
to divine all the circumstances which may possibly
have relevance.
Conversely, it may sometimes prove impossible to
legislate properly for circumstances which can indeed
be anticipated or are already known to exist. In this
respect, the ravages of HIV/AIDS have already made
their presence felt. For example, upon whom and how
does one place the onus for the attendance at or payment
of school fees for a child who is a member of a family
whose de facto head is a minor ? This is an increasingly
common circumstance.
This scenario is bound to be repeated when the Communal
Land Rights Bill becomes law. How does one legislate
to ensure the security of tenure of such a family
that has, in all probability lived for generations
on the land in question. How does one ensure that
the rules of the future CPA or other community organisation
both recognise and grant full membership rights to
the members of such a family (all minors)?
The question arises as to whether reliance might
be placed upon the Courts or the authorities implementing
such legislation to make a fair and feasible decision
in such circumstances:-
The Courts? Yes - but a competent court is not in
a position to deal with a matter until it has been
brought before it for adjudication, i.e. an actual
or perceived injustice must have already occurred
before it can be brought to the attention of the relevant
Court.
A government department, or functionary thereof?
In the light of experience, such reliance might well
be futile. Quite simply, the capacity and discretion
to do so is not there. Sadly, it is our experience
that it has been left to civil society to act to rectify
such matters.
Recently, an extraordinary and most bizarre circumstance
arose which, if we have properly understood the press
reports, indicates that the legal representatives
of an organ of State have declared their intention
to use HIV/AIDS statistics compiled by an independent
and unrelated authority to mitigate or substantially
reduce the financial obligations imposed upon it by
statute law - to the potentially permanent detriment
of a blameless minor.
What person, what legislator, even one with the gift
of clairvoyance, could have foreseen an occasion such
as this? The fact that the origin of the matter, a
Road Accident Fund claim, appears to have or had nothing
whatsoever to do with HIV/AIDS, and there has been
no reason to believe that it could or would have done,
or even might do so, seems to have gone straight out
of the window.
Such an example makes one wary of placing reliance
upon authorities implementing legislation to make
fair and feasible decisions where legislation is deficient
or inadequate to meet the circumstances. In regard
to the HIV/AIDS pandemic, the TRAC record shows that
it is civil society that must stir itself into action
to make the Constitution work, and it is civil society
and the NGOs and community organisations within it
which can be the most effective in doing so.
As a member of the HIVAN network, we hope we are
part of that portion of civil society that both can
and will take equally effective action should the
need arise.
Fred Jenkin (Editor - Metis Publications Law Service)
Fred Jenkin is a law researcher. A member of the
HIVAN network, he is also the co-author and compiler
of several published works covering, inter alia, education
law, land reform and traditional leaders. He is an
acknowledged authority on legislation currently in
force and effect in the Province of KwaZulu-Natal.
In November 1995 he was appointed to the Panel of
Assessors of the Land Claims Court.
As
contemplated in the 1993 (interim) and 1996 (final)
Constitutions, our legislators have been far from
idle during the first decade of the "new"
South Africa. Our Constitution, with its allied Bill
of Rights, has required sweeping legislative reforms
in regard to inter alia, land, education, pensions,
hospitals, health facilities, industry and employment.
In all these areas the impact of the HIV/AIDS pandemic
has been particularly hard. 