The Unravelling of the Constitution, Economy, and Constitutionalism in South Africa

Abstract The South African constitutions of 1993 and 1996 and the constitutionalism they entrenched have played a significant, if not central, role in shaping a market economy, one forged on the basis that a developmental state would lead the transformation of apartheid South Africa. The Bill of Rights enshrined the basic elements of such an economy: the right to property, a competitive market, and (indirectly) the freedom of contract. As corrective measures, the rights of workers and employees were firmly safeguarded, while a ‘social’ state was established by entrenching socio-economic rights in order to ward against market failure to distribute resources equitably. Ample constitutional scope was given for the emergence of a developmental state, although, in line with best practice, decisions about currency stability were allocated to an independent central bank. Yet, during the Zuma presidency, the economy went into recession. The claim is now that certain constitutional elements hinder economic growth, for example, the property clause, workers’ rights, or the independence of the Reserve Bank, but they obscure the fact that the country’s economic problems originate in the realm of politics, policies, and an incapable state. The economic crisis will not be resolved by the Constitution and constitutionalism; nevertheless, any future policies and initiatives should be grounded on the bedrock of constitutionalism: inasmuch as constitutionalism brings stability, it is supportive and enabling of economic growth and the fair distribution of resources.