Authored By: Mokhabela Moeti
University of the Free State (South Africa)
Abstract
This paper critically examines the South African Constitution’s unfulfilled promises of equality, unity, and protection for all who live within its borders. Despite its progressive framework, entrenched issues such as institutional racism, xenophobia, gender-based violence, political overreach, and high rates of recidivism reveal systemic constitutional deficiencies. The study highlights how constitutional ideals have failed in practice, with racism persisting in higher education, xenophobic hostilities targeting African foreigners, political empowerment of former offenders, and insufficient protection for women and children. Ultimately, it calls for urgent constitutional reforms to realize the Constitution’s original vision of justice, equality, and dignity for all. The analysis concludes with recommendations aimed at restoring the Constitution’s transformative ambition and reaffirming its commitment to genuine social renewal.
Keywords
South African Constitution; institutional racism; xenophobia; gender-based violence; political overreach; recidivism; human rights; constitutional deficiencies; Black identity; voter rights.
Introduction
The Constitution is a body of fundamental principles that provides how the State is to be governed, and it defines the citizen’s rights and duties. The Constitution had a dream to heal the divisions of the past, to equally protect everyone, build and unite everyone. These promises are provided under its preamble, however, it has not fulfilled its promises. The “birth certificate”, they call it, of a free and democratic South Africa[1]. However, firstly, there are constitutional deficiencies in this Constitution. South Africa, with its constitutional commitment, it values non-racism and non-sexism[2]. This is also emphasised in section 9(4) and (3) read together (the Equality clause). However, discrimination based on race still draws a breath within the borders of this country. Section 2 provides that this Constitution is the supreme law and any law or conduct inconsistent with it is invalid[3]. The conduct of racism is found in the higher education institutions. This will further be elaborated under the “Black Anchor: The colonialism eye poker” subheading. There is a powerful phrase in the preamble of this Constitution that says, “Believe that South Africa belongs to all who live in it, united in our diversity”, this paper extends the message of this phrase to African foreigners, who are subjected to Xenophobic attacks. Section 9(1) of the Constitution provides that “everyone”, not only citizens, has the right to equal protection and benefit of the law. And section 9(4) does not allow unfair discrimination to any person, not only citizens, and section 12(c) forbids violence towards everyone. However, foreigners are subjected to attacks in South Africa, and this will be elaborated under the “Intragroup Hostility: The Black Identity and the Fractures Within”. Additionally, section 9(1) provides for everyone to be equal before the law, to be protected by the law and enjoy its benefits. However, women and children are abused, raped and murdered while this section is in effect. And section 28(2) provides for the paramountcy of the child’s best interest, but still the masses still chant “JusticeForCweCwe”. This will further be elaborated under “The Silent Exclusion: Women and Children” subheading. The cycle of sexual assaults, murders and gender-based violence in general, is caused by the same offenders in most of the cases, the first time an offender is a perpetrator for sexual assault, and the second time is a murderer. This is caused by the concept of rehabilitation; this has caused more problems than solutions. This will further be elaborated under “The Root Causes of Recidivism”. Secondly, there is an overreach. This is evident with section 19(3), that affords the right to vote. This will further be elaborated under “The danger of a ballot paper”. Finally, this paper will discuss the impacts of these deficiencies and overreach under “The impact of SECTION I and SECTION II”. Then, will recommend and conclude how these may be conquered.
The Constitution’s dream: An Unfulfilled Promise
The South Africa’s Constitution, in its preamble, upon its adoption, promised that South Africa belongs to all who live in it, united in their diversity. However, it is black against black. Citizens are calling for “illegal” foreigners to go back to their countries[4], as if white people when they first arrived in South Africa they were legal foreigners. This Constitution emphasises unity in diversity, however, if it is not black against black, then it is white against black before the eyes of the same Constitution. Additionally, it was adopted as the supreme law to establish fundamental human rights. In theory it did, but in practise it did not. There is not a single day a parent would not worry for the safety of their children, and not a single day a woman would not worry about her safety in this country where there are police officers, one could imagine the extend of fear if they are a female child. Crime against women and children are jaw dropping even under the establishment of these human rights. Most importantly it provided to recognise the injustices of the past. With this one would assume it refers to eradicating these injustices, one of them being racism. I believe if it recognised that, there would not be a place named Orania[5], and organisations like AfriForum[6] would not exist if this constitution recognises those injustices. This dream of the Constitution is far long from becoming true, this Constitution is still in a coma for over 30 years and still dreaming, since 1994. It still has unfulfilled promise.
SECTION I
Black Anchor: The colonialism eye-poker
Institutional racism is not a fiction, it is reality especially in institutions where there are predominately white people. This was evident with Dr Pedro Mzileni, a black lecturer, who had delivered a guest lecture on 25 July 2023 at the University of the Free State (UFS) titled: “Coloniality, Social Justice and Constitutionalism”. Dr Mzileni in his statement provides that six white students were selected by the AfrForum to record his lecture with the intention to file a complaint against him to the UFS Vice-Chancellor and the South African Human Rights Commission (SAHRC)[7]. This was purely a racial attack, from the selection of six white students to the white organisation filing a claim. This is not perplexing, because AfriForum do this to show how comfortable it is in this country, and not even the Constitution can interfere with that. This is not only the racial case AfriForum has ever involved itself, but the other one will also be included in the subsequent subheading. Dr Mzileni has dedicated his academic life to poke colonialism in the eye, and this is seen in his academic work “Bibliometric Coloniality in South Africa: Critical Review of the Indexes of Accredited Journals, Decolonisation as a Spatial Question: The Student Accommodation Crisis and Higher Education Transformation and others” and in his lectures. Because of this, he became a target for racism. This injustice is a defective part of our Constitution that needs to be addressed.
Intragroup Hostility: The Black Identity and the Fractures Within
The issue surrounding “Black” foreigners in South Africa has been a phenomenon that no one can overcome, not even the Patriotic Alliance (PA). The black against black doctrine has become a pandemic in South Africa. The ANC government has made it so hard to get a job in South Africa to a point we start blaming each other on the ground, the focus has been redirected from the government to foreigners. If one come out perpetuating Xenophobia is rewarded a Ministry position in the government, all it takes to fool each other as blacks and turn against each other. Black people suffer from “opposing illiteracy”, they lack education on the true meaning of opposition. They oppose what other black people oppose, and we end up having some blacks who are “opposing literate” and who are “opposing illiterate”. For instance, the Democratic Alliance says they want to make National Student Financial Aid Scheme (NSAFS) a loan[8], opposing increase on minimum wage and Black Economic Empowerment (BEE)[9], then you see a black person who is struggling, in the strongest terms of struggling, supporting and voting for DA. Then other hand, you have the black proud political party, the Economic Freedom Fighter (EFF), that is against this absurdity of DA, then a certain group of black people oppose EFF and propose DA. This is a pure black against black doctrine of absurdity, the “opposing literate blacks” versus “opposing illiterate blacks”.
Now back to the foreigner issue, we have accepted “white” foreigners in South Africa because it is a rainbow nation believer, so why cannot we accept “black” foreigners. Some argue that the issue is about documentation, but white people possess South African Identity Documents that were made for them when we accepted to live with them, what are the challenges to make one for “black” foreigners? We are more concerned to accept a person who travelled seas to get here, but reluctant to accept a person who took a taxi to come here, the other one had to travel from a continent to another, the other one had to travel from a country to another, but preference is given to the one who travelled contents. Who had a problem with white people not having legal documentation of South Africa when they came here? No one, why? The answer is simple, because white people enslaved us, racially segregated us, treated us as animals, we were sold as an item, dehumanised, and subjected to apartheid atrocities first and then we accepted them, document or no document, because they showed us that they do not play. Now the question becomes that, do these black foreigners have to enslave us too first, dehumanise us and then that would be when we accept them and treat them as one of ours? We as black people more committed to turn against each other to please white people. This is another defective part of our Constitution that needs to be addressed.
The danger of a ballot paper
The Constitution has overreached its affordance of right to vote, it is understandable that this was to cure the injustices of the past, where black people were excluded from voting. However, careful consideration of what we wish for by this must be reasonably paid. There has been a surprising controversy regarding the disenfranchisement of prisoners. It seems that when there is an allegation of a prisoner’s rights being potentially infringed, the Constitutional Court treat is as an urgent matter for a “direct access. The August and Another v Electoral Commission and Others[10] and Minister of Home Affairs v National Institute for Crime Prevention[11] cases have firmly protected and upheld the rights of prisoners to vote. In August case it was held that by denying prisoners right to vote, it contravenes section 19(3)(a) of the Constitution. It was provided that this contravention cannot even be justified in terms of section 36 of the Constitution (limitation clause). Section 24B (2) of the Electoral Laws Amendment Act[12] provides that a convicted prisoner serving a sentence of imprisonment without an option of a fine is not eligible to vote, however, it did not sit well with the Constitutional Court. The Constitutional Court deemed the amendments in section 24B invalid in the case of the Minister of Home Affairs v National Institute for Crime Prevention. It believed the Act curtailed the of convicted prisoners it two was:
Firstly, the Act prevented, from voting, convicted prisoners who on the day of elections were serving a sentence of imprisonment without an option for a fine. Secondly, the Act prevented convicted prisoners who were serving an imprisonment sentence without an option of a fine from registering to vote while they are in prison[13]. The effect of the Electoral Laws Amendment Act 34 of 2003 was valid and enforceable, I do not see how it was unconstitutional or invalid. The dangers that “will” arise because of the abovementioned cases will drop this country to its knees, regardless of whether it is a democratic or a human rights country. I mean we are slowly witnessing part of the dangers currently. There is a man who was a “very successful criminal and made millions robbing banks, illegal casinos, filling stations and more…”[14]. He is now a successful Minister of Sports, Arts and Culture of South Africa, from a successful criminal who made millions robbing to a successful Minister yet to make millions, it must really be nice to be Minister McKenzie. We can go all day long talking about why he became the Minister under the African National Congress (ANC) government, and nothing would be perplexing of the reasons. But it is simple, in South African in general, under ANC in particular, one has to offend the legal system first, do bad things and offend the society, then when he decides to change, he will be rewarded with a dream people work hard for without breaking any law in this country. This does not start now with people like Minister McKenzie, it started long time before with white people who subjected us to apartheid atrocities, now when you uphold white supremacy, the markets celebrate you. However, when you are a law-abiding citizen, a patriot, you will always come last in the queue. To skip it, is by breaking the law first. In essence, for acknowledgement and recognition in this count is through by first being inconsistent with the Constitution, that is a ticket for a dream come true. To state a few, to get proper education without any disturbance of corruption, one must go to prison first. For you to be a motivation to the society, you must break the law first and pull out a change card, then there is a dream come true, a hero. We are more focused on “change” and “rehabilitation” of convicted prisoners as if South Africa is a land of convicts, we have centralised convicted prisoners as if that is what Democracy means. ANC is to be blamed for this hunger for a “change” because it affects every citizen. In South Africa we reward a fish for swimming. A “crime does not pay” is such a cliché, it does pay if you would opt to be the sports Minister, Minister McKenzie might attest to this. He unashamedly said he is in the politics for “power”, make no mistake,[15] his emphasis of “P” in a word power must conscientize the South African citizens about his intention in the government, the “AbaHambe” madness was just a decoy. His reason to be in power might be the same reason he was in power in prison, it also starts with a letter “P”, probably his emphasis meant something that we might discover before his term as a Minister lapses. The danger of a ballot paper simply means that in the next fifteen years or less, we would be led by a political party founded by ex-convicts.
This would be a simple thing to be achieved, there are hundreds of thousands of convicted prisoners and ex-convicts, the current government is stagnant and works for no one other than the people in power, “IF” these convicts can come into unity by exercising their right to vote that is firmly guarded by the Constitutional court, and form a political party themselves, they will achieve this. Minister McKenzie founded Patriotic Alliance (PA) with another ex-convict, Kenny Kunene, and it is into the government now. If we disenfranchise this privilege, a lot of politicians in the current government would not see the next term of office. But probably the problem did not start here, it started long time ago. Truthfully speaking, if this privilege is disenfranchised, and white supremacist who subjected black people to apartheid atrocities, colonialism and racial segregation are made to face their crimes, as they shall be, two percent out of their whole population percentage might be eligible to vote. Because racially, they are the race that has committed heinous crimes in the history of humankind, crimes as slavery, torture, murder, rape and others that might fill up this entire paper.
SECTION II
The Silent Exclusion: Women and Children
The country has been crying out loud for justice, marching from province to province demanding justice for a young innocent soul that was sexually assaulted. These victims are being excluded from justice. Section 9(1) provides for everyone to be equal before the law, to be protected by the law and enjoy its benefits. However, women and children are abused, raped and murdered while this section is in effect. And section 28(2) provides for the paramountcy of the child’s best interest, but still the masses still chant “JusticeForCweCwe”. If section 28(2) was really about paramountcy of a child, justice would have been served by now. I still fail to understand the difficulty encountered when a white principal was supposed to give out his DNA, no one said he did it. Because of the sensitiveness of this case, a refusal to corporate automatically implicates you. One becomes a potential perpetrator if they refuse to corporate. The Constitution must effectively take charge to deliver justice, women and other patriots have done their part.
The violence against women and children has become a norm in this country, politicians start to even make this part of their campaign. This is a mocking of women’s pain, none of these issues must be politicised. The list of women being murdered and raped is becoming long. This is another deficiency in the Constitution.
The Root Causes of Recidivism
Rehabilitation has never been an adequate mechanism to combat societal injustices and crimes, because even though there are rehabilitation of offenders in South Africa, crime statistics are progressively growing[16]. There are certain crimes, when committed, the offender should not be rehabilitated. Crimes as sexual assaults, murder and kidnapping must be classified as crimes that when committed, the offender receives an ‘eye for an eye doctrine’. Rehabilitation in these crimes are just a “cooling off period” for the offender to strategise a perfect execution of the similar crime, this is re-offending. No system, even the justice system, has to integrate these offenders back into the society. By reintegrating these offenders back into the society is tantamount to giving an offender a custodianship of their victims. It is concerning that in terms of section 153 of the Criminal procedure Act, to protect the privacy of the person testifying, the court will hold that this person must testify behind closed doors especially for sexual offences or when minors are involved for the interest of society; section 158(3)(d) and (e), allows witnesses to testify, if the court believes there might be potential intimidation or harm to the witness or victim, without physically being in the courtroom by a way of CCTV; and section 170A protects child witnesses and other vulnerable witnesses to testify through an intermediary who will relay their evidence, so they do not face the accused directly. These sections protect the witnesses and victims from accused who will in turn, in most cases, become perpetrators. However, after a certain period of time the justice system send these perpetrators back to these victims and witnesses, should not it be a concern that potential harm or intimidation by these offenders to these victims would be easily executed in the society. For an ‘eye for an eye doctrine’, offenders who sexually assault and murder must be death penalised. The fear of a death penalty in S v Makwanyane[17] case was rooted in Ubuntu[18], section 9, right to life, and section 11(2), which prohibits cruel, inhuman, or degrading treatment or punishment, however, I fail to see why we would extend the Ubuntu doctrine to someone who lack Ubuntu himself. The concept of Ubuntu says ‘motho ke motho ka batho’, I would be misleading the readers if I hold the view that people who brutally murder, sexually assault and kidnap women and children for human trafficking are humans in the context of Ubuntu. Considering the right to life, I also do not see the fairness of respecting a perpetrator’s life if he failed to respect the life of a victim in murder cases. Considering prohibition of cruel, inhumane and degrading punishment, I fail to see how a cruel perpetrator may be protected by this prohibition but subject his victims to them, indeed this Constitution favours criminals more than victims. One argued that if it was an eye for an eye the whole world would go blind, I hold a different view to that because there are optometrists. This injustice is a defective part of our Constitution that needs to be addressed.
The impact of SECTION I and SECTION II
The impact regarding institutional racism is that black intellectual midwives, would stop dreaming to become part of the higher education culture, because of these injustices. The concept “diversity” will lack a substantial meaning in the context of African institutions. Regarding the intragroup hostility, this continent would no longer have black people within, but enemies within. Black against black is another form of colonial method, we went from physical colonial method to psychological colonial method. The only difference is that we colonised ourselves by fighting each other, and this impresses a certain race. Civil war will begin in the whole African continent if we carry on like this. Additionally, the danger of a ballot paper impact, considering the high number of ex-offenders in this country as compared to non-offender, we will have this country being ran by ex-convicts who will impose absurd laws that work for them, because we have high number of ex-offenders than of non-offenders.
The exclusion of women and children will impact us to a point we will no longer have women in this country, only men. The cause of recidivism, this impact by showing the lack of effective government, the whole word is watching as South Africa is crippling to control its citizens.
Recommendation
Regarding institutional racism, the true existence and constitutionality of AfriForum must be questioned in this country. The right to vote must be limited, citizens over 60 years old should not be allowed to vote, and people with criminal record also. By one having a criminal record they open a gate for suspension of their right to vote, this is fairness. Rehabilitation for certain crimes should not be entertained; crimes as sexual assault and murder must be subjected to death penalty punishment. If the justice system is concerned about wrongful convictions in these crimes, then it is time prosecutors and investigating officers do their job effectively to avoid wrongful conviction. For crimes against women and children, it is time now they are declared state of emergency in terms of section 37 of the Constitution. And in this duration, the international interference must be allowed for international countries to resolve these issues. The international court of justice has recognised the prohibition of systematic racial discrimination and the suppression of human rights as a norm that has its source in the United Nations Charter, convention, and customary international law[19]. This systematic racial discrimination and suppression of human rights takes place within the country, and a country with a bad human rights record does not meet the requirements for collective recognition by the United Nation members.
Conclusion
The South Africa’s Constitution stands as one of the most ambitious attempts at legal and social transformation in modern history. Yet, three decades into democracy, the chasm between its emancipatory vision and the lived experience of ordinary citizens remains stark. Racism and xenophobia persist in both overt and systemic forms, while gender-based violence and institutional racism betray the Constitution’s most sacred promises. Institutions tasked with healing historical wounds often replicate or entrench them, casting doubt on the depth of the country’s commitment to substantive equality and human dignity. Moreover, the broad enfranchisement of all citizens, without sufficient safeguards, has introduced vulnerabilities that threaten democratic stability and governance. The Constitution’s authority must not rest solely on its celebrated text but must be renewed through honest reckoning, structural reform, and a recommitment to the humanity it seeks to protect. Without such deliberate efforts, South Africa risks relegating its constitutional dream to the realm of aspiration rather than achievement.
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Pedro Mzileni, ‘Public statement by Dr Pedro Mzileni, responding to the South African Human Rights Commission (SAHRC) dismissal of AfriForum hate speech complaint’ (26 November 2024) < https://media.licdn.com/dms/document/media/v2/D4D1FAQGv0fnrKapq2g/feedshare-document-pdf-analyzed/B4DZTMx5XVG4AY-/0/1738602423859?e=1746662400&v=beta&t=MTqnp-he2qhvLkkZl3cjBp-r0P9y78o0xwOldD9nVvw > accessed 24 April 2025
Constitution of the Republic of South Africa,1996
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Minister of Home Affairs v National Institute for Crime Prevention 2004 (5) BCLR 445 (CC)
August and Another v Electoral Commission and Others 1999 (4) BCLR 363 (CC)
[1] Constitution of the Republic of South Africa,1996, i
[2] Constitution of the Republic of South Africa, section 1(b), 1996.
[3] Constitution of the Republic of South Africa, section 2, 1996.
[4]DefenceWeb, ‘Conscription and illegal immigration at the core of Patriotic Alliance defence and security manifesto’(28 May 2024) < https://www.defenceweb.co.za/governance/governance-governance/conscription-and-illegal-immigration-at-the-core-of-patriotic-alliance-defence-and-security-manifesto/> accessed 25 April 2025
[5] Orania is a white separatist town located in the Northern Cape Province, in South Africa, on the Orange river in the Karoo region.
[6] Is an organisation that represents white people to engage in public debates, to stop Malema and support white people.
[7] Pedro Mzileni, ‘Public statement by Dr Pedro Mzileni, responding to the South African Human Rights Commission (SAHRC) dismissal of AfriForum hate speech complaint’ (26 November 2024) < https://media.licdn.com/dms/document/media/v2/D4D1FAQGv0fnrKapq2g/feedshare-document-pdf-analyzed/B4DZTMx5XVG4AY-/0/1738602423859?e=1746662400&v=beta&t=MTqnp-he2qhvLkkZl3cjBp-r0P9y78o0xwOldD9nVvw > accessed 24 April 2025
[8] Chantel King MP, ‘The DA’s alternative NSFAS funding model’ (31 Aug 2023) < https://www.da.org.za/2023/08/the-das-alternative-nsfas-funding-model > accessed 28 April 2025
[9] Michael Bagraim MP, ‘A national minimum wage hike will deepen South Africa’s unemployment crisis’ (30 Sep 2024) < https://www.da.org.za/2024/09/a-national-minimum-wage-hike-will-deepen-south-africas-unemployment-crisis > accessed 28 April 2025
[10] August and Another v Electoral Commission and Others 1999 (4) BCLR 363 (CC)
[11] Minister of Home Affairs v National Institute for Crime Prevention 2004 (5) BCLR 445 (CC)
[12]Electoral Laws Amendment Act 34 of 2003, Section 24B(2)
[13] De Vos P, ‘Prisoner’s right litigation in South Africa: a critical evaluation’ CSPRI Research paper
No.3 <https://dullahomarinstitute.org.za/acjr/resourcecentre/South%20African%20Prisoners%20Right%20to%20Vote.pdf > accessed 26 August 2024, 3-4.
[14]Charles Cilliers, ‘The Choice – The Gayton McKenzie Story (Paperback, illustrated edition)’
<https://www.loot.co.za/product/the-choice/hgcc-273-g890?srsltid=AfmBOooIiO-
WoUvvtfUtMGO3tyEHr03XVI44HxARtAFHHbItpbsF7CKN > (accessed on 26 August 2024)
[15] TikTok <https://vm.tiktok.com/ZMrcvSh4a/ > accessed 26 August 2024
[16] Crime Registrar Head Office, ‘POLICE RECORDED CRIME STATISTICS-REPUBLIC OF SOUTH AFRICA: Third Quarter of 2024-2025 Financial year’ (October 2024 to December 2024) < https://www.saps.gov.za/services/downloads/2024/2024_2025_3rd_Quarter_WEB.pdf > accessed 28 April 2025
[17] S v Makwanyane and Another (CCT3/94) [1995] ZACC 3
[18] Vicky Marshall, Ubuntu is an ancient African word rooted in humanist African philosophy and can be roughly translated as “humanity to others”, or “I am because we are”. It comes from the Zulu proverb “Umuntu ngumuntu ngabantu”, meaning “a person is a person through other people” (25 May) < https://www.dandelionphilosophy.com/blog/whats-in-a-word-the-meaning-of ubuntu#:~:text=A%20philosophy%20intertwined%20with%20culture,inspired%20leaders%20and%20great%20thinkers.&text=Ubuntu%20embodies%20values%20of%20harmony,have%20consequences%20for%20the%20future. > accessed 28 April 2025
[19] Dugard et al, Dugard’s International Law: A South African perspective, pp.145-148.
