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Our laws let the settler elite off the hook

Author: Basil Cele

WHEN President Nelson Mandela promulgated SA’s Constitution in 1996, it was hailed as one of the most progressive in the world and ground breaking for its focus on socioeconomic rights to redress the material dispossession of black South Africans.
Two decades later, things haven’t quite worked out as planned. Not that anybody needed reminding by Thomas Piketty, but SA remains the most unequal in the world and its wealth is even more concentrated in the hands of a privileged elite than at the outset of democracy.
So why didn’t our trailblazing Constitution effect the necessary changes to bring about a much-needed redistribution of wealth?

The short answer is: It can’t. It simply doesn’t contain the muscle to challenge the inequalities that emerge from capitalist relations.
The South African Constitution is a text born of compromise. Not only was it negotiated in the decade following the end of the Cold War, when American triumphalism ran rampant across the world, prescribing free market policies to all and sundry, but its drafting was also subjected to intense horse trading by the apartheid regime’s National Party, which ensured the economy would remain untouched by the African National Congress once it came into power.
Those calling for radical constitutionalism are missing the point that the Constitution lets an important stakeholder off the hook. The Constitution is incapable of reining in corporate abuses of power and unable to prevent the overaccumulation of wealth by elites, the primary source of SA’s gross inequality.

Two key resources that are crucial for improving the conditions of the working class, the land and its mineral wealth, remain locked in the hands of an unpatriotic settler elite who continue to own vast sections of the economy and large tracts of land that they acquired through colonialism and apartheid.Our Constitution’s protection of property rights has undermined what could have been a robust land redistribution programme, while the nationalisation of SA’s mineral wealth has become a taboo subject, completely uncoupled from constitutional obligations.

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