Do not blame the courts for lack of transformation, says Adv Wim Trengrove
The charge by the government that the courts obstruct transformation has been rejected by Adv Wim Trengove, SC, a leading constitutional law lawyer.
Delivering the keynote address at the launch of a new book, Law and Poverty: Perspectives from South Africa and Beyond (Juta & Co), in Stellenbosch on Thursday evening (31 May 2012), Trengove said the “responsibility for transformation rests squarely on the government” and the “courts do not in any way inhibit it in doing so.”
The book was edited by Professors Sandra Liebenberg and Geo Quinot of Stellenbosch University’s (SU) Law Faculty. It is a collection of essays presented at a colloquium hosted by the Faculty in May 2011 under the banner of the University’s HOPE Project, a campus-wide programme through which the institution is tackling major societal challenges.
Trengove cited an August 2011 statement by ANC secretary general Gwede Mantashe “that people who take matters to the Constitutional Court, use the courts to overturn progress in the transformation of society and that the courts oblige by reversing the gains of transformation.”
In March this year, the Department of Justice and Constitutional Development published the terms of reference of an intended “assessment of the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on the transformation of society”.
Last night, Trengove argued it was unfair of the government to blame the courts for its own failings.
The courts “are drivers of transformation, often in the face of fierce resistance by the state,” he said.
“They cannot provide homes, food, water, healthcare, education and social security to the poor. But they can and do hold the state accountable for its provision of those basic services to the poor, at least to the minimum standard required by the Constitution.”
Trengove said in the recent case of activists taking the government to court for not providing textbooks to tens of thousands of school children in Limpopo, what he found “most distressing” was “not the state’s administrative failure, but that it fought the application to final judgment.”
On 17 May, the High Court in Pretoria ruled that the failure by the Department of Basic Education to provide textbooks for several Limpopo schools was unlawful and violated the Constitution.
Trengove pointed out that Law and Poverty “explores and debates the ways in which the abstract prescriptions of the Constitution may be translated into effective legal policies”. He therefore considered the book a “necessary and timely contribution to the quest for eradication of the blight of poverty on our land.”
Is his address (click here for a PDF), SU Rector and Vice-Chancellor Prof Russel Botman drew attention to the fact according to the Development Indicators released by the Presidency, 49% of South Africa’s population lives below the poverty line of R524 a month.
“The Constitution proclaims it was adopted so as to ‘improve the quality of life of all citizens and free the potential of each person’, but clearly we still have a long way to go,” he said.
“It is precisely this disjunction between, on the one hand, our constitutional ideals, and on the other, the brutal realities of life in our country that the Law Faculty has been grappling with.
“The vehicle for its investigation has been the HOPE Project initiative called ‘Combating Poverty, Homelessness and Socio-Economic Vulnerability Under the Constitution’. And this book, Law and Poverty, is a direct result of activities undertaken within this initiative.” – DESMOND THOMPSON
- Click here for a video in which the editors of Law and Poverty, Professors Sandra Liebenberg and Geo Quinot of Stellenbosch University’s (SU) Law Faculty, talk about the book.