Is the ANC led government in breach of the ‘Social Contract’?

Opinion by Gideon Brits

Is the ANC led government in breach of the ‘Social Contract’?
Why South Africa’s Constitution is under attack

A social contract is an agreement between the people of a society and the government of that society.  The people agree to follow the rules made by government and in exchange government must provide certain rights and freedoms.

The origins of ‘social contract’ theory can be traced back to Greek and Stoic philosophy but really came into prominence during the ‘Age of Enlightenment’ in the mid 17’th to early 19’th centuries.  Prominent philosophers like Grotius, Hobbes, Locke, Kant and Rousseau proposed this approach as the reason for political legitimacy.

In South Africa this ‘social contract’ is our Constitution (Act 108 of 1996).  This contract was accepted by our freely elected government and forms the highest authority in South Africa.  The preamble to the Constitution clearly states this.

“We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic”

It is important to note is that our government does not get the right to govern from the democratic process but from the Constitution.  The democratic process merely elects those who govern.  Our freely elected government can make laws and policies as they see fit but they still need to keep to the ‘social contract’.

The rights and freedoms that our elected government must provide are set out in Chapter 2: The Bill of Rights.  If government fails to deliver on these, then one can argue that government, although democratically elected, is in breach of the ‘social contract’.

Section 9(1) states that; “Everyone is equal before the law and has the right to equal protection and benefit of the law”.  This implies that everyone should also be equally prosecuted by the law.

Section 165 deals with the Judicial Authority and states that the courts are independent and subject only to the Constitution and law.  Section 165 (3) specifically mentions that; “No person or organ of state may interfere with the functioning of the courts”.

Given the acceptance of the facts of ‘state capture’ in general and testimony at the Zondo commission in specific one may argue that the government as whole is in breach of the ‘social contract’.  The question arises as to whether this may lead to a cancellation of the ‘social contract’.

Clearly one corrupt official or one suspect appointment at the NPA would not constitute a breach of contract.  The determination as to what constitutes a breach of contract lies within our ‘social contract’ itself.  Article 167(4)(e) of the Constitution states that “Only the Constitutional Court may … decide that Parliament or the President has failed to fulfil a constitutional obligation”.

Should one feel the government is in breach of the ‘social contract’ then the first step would be to approach the constitutional Court for a ruling.  As South Africans we seem to have forgotten the significance of our Constitution.

Other matters which perhaps may be taken to the Constitutional Court are:

  • Section 27 which provides for the right to sufficient food and water. If government was partly to blame for the water crises in the Western Cape then perhaps they can be forced to comply with a suggested remedial action?
  • Section 26 places the obligation on government to, within its available resources; progressively realize the right of access to adequate housing. Whilst the Constitutional Court cannot determine the budget it is within its mandate to investigate whether or not ‘available resources’ are utilized for this purpose.

A more interesting right, given current political discourse, is section 25.  The right to private property together with rule of law forms part of the very essence of the ‘social contract’.

Most of the Constitution may be changed by a two thirds majority in parliament.  That much is true for section 25 as well.  The proposed amendment of section 25 has caused a lot of fear and consternation in South Africa.

What was lost sight of however is Section 167(4)(d); “Only the Constitutional Court may  … decide on the constitutionality of any amendment to the Constitution”.

It is still unclear as to what, if any, Expropriation Without Compensation amendment would amount to.  Such amendment would however still be subject to constitutional review as to the ‘constitutionality’ of such amendments.

The constitution is the highest authority in the land regarding our ‘social contract’.  Perhaps the time has come to approach the Constitutional Court for guidance in certain matters.


Gideon Brits