Publications
Partners
The Constitution has turned into a document of convenience.
Its implementation hinges on who is in office at a particular time and what their goals are.
Certain constitutional rights and obligations receive second-class treatment.
Section 237 of the Constitution orders that all constitutional obligations must be performed diligently and without delay.
This section is phrased in an instructive manner to force those in political, governance and administrative office to act timely, judiciously and diligently.
The answer to the unavoidable question of whether all constitutional obligations are performed diligently and without delay is a heartbreaking “no”.
Dumisane Lubisi of City Press wrote an article titled “Mother tongue education is a dream deferred” (City Press, January 27 2019).
The article was a corollary of the decision by the University of Pretoria to drop Afrikaans as a medium of instruction and use English as the sole language of instruction to make the campus “more inclusive”.
Lubisi reminded us that the phasing out of Afrikaans counters the dream of having a truly South African university where diverse languages, including indigenous languages, are used as medium of instruction.
In October last year, I raised my voice in a City Press newspaper article titled “Schools should teach all official languages” (City Press, October 28 2018).
I opined that legislative and policy development or change is needed to realise this dream and thus avoid its deferment.
The aim of my article was to encourage the offering of all indigenous languages in all schools, so as to be more inclusive.
Disregard of the provisions that constitutional obligations must be performed diligently and without delay has resulted in a wrong and regrettable decision being taken by various universities in South Africa to abolish Afrikaans as a medium of instruction and consequently not introduce African languages.
The Constitution instructs the state to take practical and positive measures to elevate the status and advance the use of indigenous languages.
The use of indigenous languages includes their usage thereof as a medium of instruction.
Delay, by the state, to perform this obligation has certainly deferred the rights of indigenous people to use their languages as a medium of instruction.
Neglect of this constitutional imperative has also denied various sectors of the society, more especially women, the right to equal protection and benefit of the law.
For example, it took a non-governmental organisation, the Women’s Legal Centre (WLC), approaching the high court to fight to compel government to enact legislation to recognise Muslim marriages.
Many years passed while the state was working on legislation to regulate these marriages.
The department of home affairs argued in the WLC matter that in terms of the right to religious freedom there was no duty to enact legislation, that the section was permissive not peremptory to enact.
The department lost sight of the imperative to take legislative or other measures to protect persons disadvantaged by unfair discrimination and that the rights in the Bill of Rights be fulfilled.
The home affairs department is also blind to the constitutional acknowledgement of diverse and complex religious dynamics in communities, hence a provision that the Constitution does not prevent legislation recognising marriage concluded under any system of religious law.
Further delay is seen in government’s decision, as reported by the SA Government News Agency, to appeal the court decision that legislation dealing with marriages under Islamic Law be passed.
The issue of public holidays as prescribed by the Public Holidays Act is another example of omission of the duty to act diligently and without delay.
There are religious communities in the country that feel that their days of religious observance or celebration, such as Diwali, are not awarded the same recognition as Christian days that are entrenched as public holidays and therefore perceived as more important than those of non-Christians.
Further protraction by the state to address this challenge is in violation of its duty to not discriminate against anyone, to fulfil the rights in the Bill of Rights and to perform its obligations diligently and without delay.
The land issue was another incontrovertible public catcalling until Parliament decided to conduct hearings on it.
The central question is whether, since the inception of a democratic dispensation, the state acted diligently and without delay to redress the results of past discrimination related to land reform.
Recalling that the state has been empowered to take legislative and other measures to achieve land reform, subject to compensation or not, having only conducted hearings last year on whether to amend the Constitution to expropriate land without compensation, the state neglected to act diligently and without delay.
People are headed for elections to cast their votes in May, beaming with hope that subsequent justice will prevail and that their rights will be diligently and timeously fulfilled.
. Sedupane is an advocate
