Brexit, the election of Donald Trump and activism in South Africa lessons for democracy : the contribution of Justice Sandile Ngcobo

• Record Number: sapr1_v32_n1_2_a5
• Date: 01 August 2017
• DOI: 10.10520/EJC-10339fc739
• Pages: 1-36
• Published date: 01 August 2017
• Author: Ziyad Motala

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https://doi.org/10.25159/2522-6800/3573

ISSN 2522-6800 (Online) | ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–36

ARTICLE

Brexit, the Election of Donald Trump and Activism in

South Africa—Lessons for Democracy: The Contribution

of Justice Sandile Ngcobo

Ziyad Motala

Professor of Law, Howard Law School, Washington DC

Email: zmotala@law.howard.edu

ABSTRACT

Ngcobo J’s conception of democracy is more in keeping with the ancient understanding,

found in the Athenian city-state, traditional African societies and the writings of Karl Marx.

The traditional conception, armed by Rousseau, requires the direct participation of the

population in the decision-making processes that aect their lives. The Athenian notion of the

participation of the population in a town hall meeting is not practical in a large nation state.

Ngcobo J developed a hybrid model that combines elected representatives and participatory

democracy. Under this model, the lawmaker is required to provide for meaningful modes

of participation by bringing the opportunity for participation to the people through provincial

participation. In the annals of comparative constitutional law, Ngcobo J’s opinion is an outlier

that represents a unique and fresh perspective on democracy, much like the Constitutional

Court’s development of socio-economic rights and the use of the reasonableness standard

to determine the legality of government conduct. Ngcobo J does not equate political equality

with equality of opportunity. Apart from requiring the government to provide for citizen

participation in the polity, he imposes a further duty on the government to take armative

steps such as educational programmes, road shows, workshops, media programmes and

publications to make citizen participation a reality for the historically disadvantaged and

those with unequal education. His perspective oers a cogent instruction to the rest of the

world in this period when democracy is under serious strain.

Keywords: democracy; public participation; political participation; meaningful participation;

economic justice; Karl Marx

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Motala Brexit, the Election of Donald Trump and Activism in South Africa

Introduction

It is extremely gratifying to contribute to this festschrift in tribute to former Chief Justice

Sandile Ngcobo. In political discourse, the term ‘democracy’ arouses a great deal of

passion and controversy. This passion and controversy is in full display in the Brexit vote

in the United Kingdom and the election of Donald Trump in the United States. It plays

itself out daily in the political turbulence in South Africa. Under constitutionalism, we

are schooled to resolve problems through democracy. But what does democracy mean?

There is no universal conception of democracy:1 it can be approached as an idealised

notion versus what others might characterise as a practical or realistic system of

government.2 In this respect, Chief Justice Ngcobo’s opinion in Doctors for Life, ranks

among his most important decisions.3 His majority opinion provides a vision for citizen

participation, which the Court correctly framed as an issue that ‘lies at the heart of our

constitutional democracy’.4 In so pronouncing, it established a participatory conception

of democracy that has been armed and applied in a litany of subsequent cases.5

In Doctors for Life, the Court considered the competing visions of democracy and

formulated an understanding that best represented the ethos of the South African

Constitution.6 In his majority opinion, Ngcobo J conceives democracy as a social idea

that requires the participation of the electorate in matters that are of crucial concern to

them. In contrast, the dominant contemporary interpretation of democracy has moved

away from conceiving democracy as a social idea, and adopts an empirical approach by

assuming that those countries which are called democracies are indeed democratic as

1 William Nelson, On Justifying Democracy (Routledge 1980) 2–3; Crawford Macpherson, The Real

World of Democracy (Oxford University Press 1965) 1; Keith Graham, The Battle of Democracy:

Conict, Consensus and the Individual (Wheatsheaf Books 1986) 1.

2 J Dewey, ‘Search for the Great Community’ in L Earl Shaw, Modern Competing Ideologies (Heath

1973) 297.

3 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).

4 ibid para 1.

5 Land Access Movement of South Africa & Others v Chairperson of the National Council of Provinces

2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC); Acting Speaker of the National Assembly v Teddy

Bear Clinic for Abused Children 2015 (10) BCLR 1129 (CC); Moutse Demarcation Forum v President

of the Republic of South Africa 2011 (11) BCLR 1158 (CC); Matatiele Municipality v President of

the Republic of South Africa (2) 2007 (1) BCLR 47 (CC); Minister of Transport v Mvumvu 2012 (12)

BCLR 1340 (CC); Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC); 2012

(5) BCLR 449 (CC); Reect-All 1025 CC v MEC for Public Transport, Roads and Works, Gauteng

Provincial Government 2009 (6) SA 391 (CC); 2010 (1) BCLR 61 (CC); Merafong Demarcation

Forum v President of the Republic of South Africa 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC);

South African National Defence Union v Minister of Defence 2007 (5) SA 400; 2007 (8) BCLR 863

(CC); Lesbian and Gay Equality Project v Minister of Home Aairs 2006 (1) SA 524 (CC); 2006 (3)

BCLR 355 (CC); Minister of Home Aairs v Fourie 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC).

6 The majority opinion of Ngcobo J and the dissenting opinion of Yacoob J illustrate the divergent

views with respect to what democracy and public participation entail. For a discussion on the dierent

theories on democracy, see Robert A Dahl, A Preface to Democratic Theory (The University of

Chicago Press 1956) 1.

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Motala Brexit, the Election of Donald Trump and Activism in South Africa

long as they observe free and fair elections periodically7 and the public’s participation

is expressed through the elected representatives. Justice Ngcobo oers a perspective

that ‘meaning determines application’ and not that ‘application determines meaning’.8

Central to his interpretation, decision-making in the polity cannot be the conne

of elected political elites, to be exercised behind the backs of the population—elite

decision-making and a lack of citizen participation only contribute to citizen alienation,

cynicism and lack of social cohesion.

The United Kingdom and the United States have recently experienced political seizures,

as reected in the Brexit referendum and the election of Donald Trump as US president.

A major contributing factor in the electorates’ voting choices is a feeling of alienation

arising from a deep-seated fear of and anxiety about globalisation and the rigging of

economic choices, such as free trade for the benet of elites. Similarly, South Africa is

in the midst of severe economic, educational and political challenges with nationwide

protests. As in developed countries, decision-makers in South Africa adopted free-trade

policies that have wrecked large sectors of the economy without any consultation of the

people aected by these decisions. The free-trade policies adopted under the leadership

of former Finance Minister Trevor Manual, for instance, have served the interests of

economic elites to the detriment of the poor.9 The political convulsions reected in

Brexit, the election of Donald Trump and the economic and political challenges in

South Africa reinforce the vitality, cogency and depth of reasoning inherent in Ngcobo

J’s approach to democracy. It makes a compelling case that citizen participation should

not be limited to the right to vote but should be ongoing with respect to matters of

critical concern to the citizenry.

This article argues that Brexit, the election of Donald Trump and the economic

alienation of the majority in South Africa instruct us that participatory democracy needs

to be extended to economic choices.10 This article further argues that these convulsions

exemplify and reinforce what the traditional thinkers of democracy instructed us to

avoid—widespread poverty and extreme disparities in wealth are inimical to democracy.11

Ngcobo’s conception of democracy is more in keeping with the ancient understanding

found in the Athenian city-state, traditional African societies and the writings of Karl

Marx. The traditional conception, armed by Rousseau, requires the population to par-

ticipate directly in the decision-making processes that aect their lives.12 The Athenian

7 ibid 84.

8 For these contrasting approaches, see Barry Holden, The Nature of Democracy (Barnes and Noble

1974) 7.

9 Ziyad Motala, ‘Free Trade, the Washington Consensus, and Bilateral Investment Treaties the South

African Journey: A Rethink on the Rules on Foreign Investment by Developing Countries’ (2016)

6 (1) American Univ Business LR 31 at 37–38 (hereinafter Motala Free Trade, the Washington

Consensus).

10 Discussed in section 5.

11 Discussed in section 6.

12 See Jean-Jacques Rousseau, The Social Contract (Marc Michel Rey 1762). For a copy and translation,