Abstract

BREDENKAMP, Francois. The contractual dimension of constitutions: new challenges for South Africa?. Tydskr. geesteswet. [online]. 2010, vol.50, n.4, pp.467-483. ISSN 2224-7912.

Despite the fact that the SA Constitution of 1996 has variously been lauded as a "model constitution," even as "one of the world's best constitutions" - especially when viewed from a liberalist-individualist perspective - this contribution maintains that the Constitution displays several shortcomings when viewed from the perspectives of the Afrikaner and Afrikaans-speaking communities, and probably that of other minority-communities in South Africa, as well. These shortcomings from the outset point to the incomplete closure of the social contract and of the constitutional guide-lines generated in the run-up to the first democratic elections for a new government in 1994. The article first draws attention to the historical and dynamic factors which usually act as foundation for social contracts and attempts to identify problems in the South African process, after which it suggests possible remedies for such problems. An exposition of the political theory of political covenant and mutual social contract is given, with special reference to the federalist process leading to the constitution of the United States of America. Having then treated the transference of the social covenant to a secular and social setting, the future of the social contract in South Africa is interrogated and the pressing need identified for the renewal and renegotiation of the solemn social contract between all South African citizens. The role and the potential of the political parties in this visualised process is briefly discussed, but largely discounted because of the steady erosion in the public's perceptions of politicians' credibility and trustworthiness. The article closes with a plea for a renewal of the solemn social accord between South Africans, a process to be initiated by civilian organisations and individuals from the grassroots upwards, so that the country might re-enter its destined path with a new sense of purpose and unity. The germs of such a movement are, in fact, already discernible. The deterioration in Afrikaner (and other minority) perceptions of the efficacy of the South African constitution ran concomitantly with the drafting and implementation of the constitution of 1996 (which set aside many important constitutional guide-lines determined by the national Convention for a Democratic South Africa) (Codesa), the one-sidedness of the Truth and Reconciliation Commission and its processes and the failure of the "Government of National Unity" (Giliomee(2003): The Afrikaners: the Biography of a People). Chief among these perceptions is the dwindling of the legitimate interpretative community of the constitution down to the government and its supporters and, in addition, the poor representation of minorities in parliament, the continuance of the Westminster "winner takes all"-approach to the outcomes of elections and the general abuse of the rights of minorities, in particular those pertaining to language rights. In surveying the rather modern notion of the social accord as the result of a covenant reached, initially, between God and man and, later, between a ruler and his subjects, attention is given to the substantial contribution of Jean Cauvin (Calvin) and his adherents (Althusius and others). The American federal constitution is treated as a case-study in the attainment of a solemn, yet mostly secular, covenant or accord between citizens with varied interests and inhabiting widespread and substantial territories. In the last instance, the future of the social accord in South Africa is discussed and the suggestion is made that an informal process, from the grass-roots level upwards, and with the inclusion of all civic communities, be set in motion in the search and formulation of a new and solemn social accord which would truly embody a common set of social and community values. A groundswell of consensus could set the scene for a re-interpretation or even partial re-phrasing of the South African constitution which may put to rest many of the present objections to it. A new consensus in South Africa could cure many of the social maladies presently experienced and set the scene for a new era for political success in South Africa, one that is sorely needed.

Keywords : South African constitution; South African social accord; Calvinist political theory; Calvin; Althusius; federal United States constitution; South African Government of National Unity; mutual covenant; future of South African social accord.

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