Professor Thuli Madonsela powerful speech on Constitution, equality and immigration

Added: 2026-05-24

[00:00:00]South Africa celebrated 30 years the supreme law of the countryitution 1996 Soitution Africa.

[00:01:04]former. He's an Democrat protector.

[00:01:46]Unemployment, immigration, Facebook emotions wrong. Foreil immigrants 9 It's about 8 hours. 8 hours.

[00:03:56]It was a long walk to food and we didn't even know where it was. So, let me apologize because the ashes because of the rain obviously they were not able to stand on the way for us but we we managed to to get there. So people will just join us as we start and continue.

[00:04:18]Now h at this point in time to help us draw together the rich threats emerging from this morning's discussion we now invite one of South Africa's foremost voices on constitutional democracy ethical leadership and social justice professor Tuli Madonella who is the director the director for the center for social justice in the faculty of law at Stalenbos University where she occupies the law trust chair professor of law in social justice studies. She teaches constitutional law, social justice, admin law, constitutional governance and ethical leadership. So she's just the right person uh to speak to us. and she's also the former public protector of South Africa and full-time commissioner in the South African law reform commission. Uh, Professor M.

[00:05:22]Madonella is also a member of the African Academy of Sciences and the Scottish WS society and she has helped draft several international human rights instruments at UN AU and SADC level and country reports as well. She's the author of two books, Gender Mainstreaming, which was published in 2002, and Gender Management also in 2002. And she's the co-author and architect of the inaugural benchwork for equality codes and resource book for equality court drugs. Distinguished guests, let's put our hands together to welcome Professor Madson.

[00:06:13]>> [applause] >> Thank you, Professor Pasuana.

[00:06:21]Greetings, esteemed colleagues.

[00:06:24]A special greeting to our host, Madame Speaker Toodiza, our leader, former President Taboni, the leadership of the Tabbei Foundation, Minister Bantu Holisa, members of Parliament, Vice Chancellor Lee Gabula, and other leaders of UNISA.

[00:06:57]Esteemed colleagues, fellow speakers and participants, I thank you for the privilege to address this joint colloquium which enables us to reflect on 30 years of our constitution in the context where we are also commemorating 50 years of June 16 and 70 years of the women's march of 1956.

[00:07:28]We also two days or three days away from celebrating Africa Day.

[00:07:38]I've been asked to speak about the constitution, social justice and ethical leadership in his article titled the fragility of rights.

[00:07:52]The late Chief Justice Arthur Chascalin states that obscious and several spirits are worst guardians of people's rights.

[00:08:13]This is a quote from an English lawyer and political writer.

[00:08:21]This came to mind as I listened to the compelling presentations and speeches presented by my colleagues and leaders this morning.

[00:08:38]What emerged from the colleagues and leaders is clearly that yes both the country and the continent have moved and clearly today is better than yesterday in some respects but pretty much everyone who spoke from the speaker the vice chancellor our keynote speaker pro Dulo and the panel that spoke just before me, it was clear that we haven't done as well as those who dreamt about a better South Africa and a better Africa expected us to have done 30 years into democracy.

[00:09:31]So the question that arises is why haven't we done as much as we've done?

[00:09:40]Well, Chasen would argue that maybe, just maybe, we've been obs but several to what?

[00:09:57]several to old law principles, several to the international order.

[00:10:04]What really has hamstrung us?

[00:10:10]Well, the speakers this morning suggested two possibilities or even three. Some said the problem lies with the constitution that it is not fit for purpose and this is the the case whether we're talking about the South African constitution or we talking about African constitutions.

[00:10:38]The second view was its implementation and I think profendi my colleague from salos university was very strong on that that it's implementation um and she focused on parliament but the question would be can we look at parliament look at the executive look at business and look at civil society the way the United Nations does. It looks at everyone and and ask ourselves is that the the problem? And then there were others who like the keynote speaker and and others who suggested really the problem is both the wording of the constitution and implementation.

[00:11:34]So I'm here to talk to you about the constitution, social justice and ethical leadership. I must disclose up front that I stand with the middle that says with the benefit of hindsight there are things we could have done better in the constitution.

[00:11:58]But having worked at Stalen University on social justice for the last 10 years and having spent a year at Harvard studying precisely what went wrong and having worked with young people at the Tuma Foundation, I've come to the conclusion that leadership, values-based leadership has been one of our key problems.

[00:12:25]So has been leadership values and state craft and I'm going to go into that and I'm not saying the constitution itself doesn't need more improvement.

[00:12:38]I'm with professor talingo who says it is odd that we have a constitution that followed immediately after a partate but it doesn't mention a partate the instit the Indian constitution of 1950 which followed immediately after untouchability talks about untouchability the Irish constitution of 1937 deals with it confronts very specifically where Ireland moved from and we said injustices of the past.

[00:13:14]Maybe in retrospect those injustices of the past could have been dealt with slightly differently and and named properly. There's power in naming things. Those of us who work in the gender space understand that there's power in naming things. But also what is missing there just up front is a sentence in late late president former president and late president declutation says we recognize the injustices of the past and honor those who fought for justice.

[00:13:58]It doesn't state as the Stellen Bush restitution statement says that we also recognize the in the consequences of those injustices.

[00:14:14]So those are things we have to think about. But here's what Charlesson says are the goals of our constitution in his article titled the fragility of rights.

[00:14:24]So this statement he makes about those who are um obscious and seile just team spirits so to speak should not be guardians of people's rights. He says our constitution has the following goals.

[00:14:44]Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.

[00:14:54]Two, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law. Three, improve the quality of life of all citizens and free the potential of each person.

[00:15:13]and finally build a united and democratic South Africa able to take its place as a sovereign state in the formula of nations.

[00:15:26]So if we're judging the constitution in terms of has it delivered on its own promises and if we agree with former chief justice a chasim would say it should have delivered on four things.

[00:15:40]Are we healing the divisions of the past by progressively becoming more democratic in everything we do? And democracy here doesn't just talk elections once in a year.

[00:15:53]Democracy includes for example the fact that professor talingos he said we passed a law and president me I remember during your time we you pushed us you pushed us with the equality act and and and your government then ran out of time and nothing was ever done with the with with chapter 5 of the equality of act after that. So, but what is democratic about that is who decided not to implement the act.

[00:16:24]So, the average person made sure that they elected people of their choice to parliament. When they were invited to comment on the bill, they commented on the bill.

[00:16:36]And when there was an opportunity to send people to parliament to come and talk about the bill, they did hear. And I remember here some members of the old national party single me and professor Gu and attacking us for including the promotion of equality part in the bill.

[00:16:59]But yet everyone who has spoken today and yet everyone who speaks about South Africa they always say we inherited an unequal society.

[00:17:08]How do you then come up with an act that only has anti-discrimination?

[00:17:12]Because under discrimination is when you have you occasionally treat people badly. So the only way you can handle a precondition of inequality is if you move full force to do that. Incidentally 10 years later England came up with a similar act and they have implemented it and that's why you see all kinds of people in power now in all kinds of institution in England today.

[00:17:41]So from a democratic point of view, from a democratic values, I want you to ask yourselves who gets undisclosed access to decision makers whilst other people follow the disclosed democratic processes. And how do we stop those in America? How did they stop those? Well, currently they're in trouble. Maybe they're not the best of examples, but they came up with something called sunshine laws and and prov spoke about the importance of democracy of of transparency in participation. So you only participate if you know what's going on and what are the consequences of what's going on. So they came up with sunshine laws that say everyone who exercises public power must disclose in their diary who they going to meet with what they're going [snorts] to discuss and what the outcome of that meeting is.

[00:18:40]So that would help us to know who's stopping the implementation of chapter 5 of the equality act. Right now we don't.

[00:18:47]We just know it's sitting there and I think last year the department of justice said it's about to be implemented and then it just vanishes.

[00:18:57]The human rights commission ordered the department of justice to implement chapter five of equality. The president and and I'm sad to say this because the president has come through for us on on hunger and and he's leading the charge.

[00:19:13]But he told the United Nations that one of our laws that were implementing is the equality act.

[00:19:19]We're not implementing an equality act.

[00:19:21]by implementing an anti-discrimination act because we have ignored the progressive promotion of so it's almost like you're lying unintentionally. So public servants make sure that we implement the equality act so that when they the the president says we have an equality act that we're implementing he's telling the truth 26 years into democracy. So that's democratization.

[00:19:46]But the second part of it is social justice.

[00:19:52]Social justice is one of the oldest values in discussions about democracy.

[00:20:00]It emerged in the first half of the 19th century and it was an economic issue. It was not social worth. It was if we if we produce social goods that is the good things in society.

[00:20:21]We co we cooperate to do that. Why is it that some get 70 times more of the money or the wealth that comes from that?

[00:20:32]Now, but with Luigi Tapareli inventing or coining the concept within Catholic social thought and another Catholic uh scholar um Antonio um developed it further and brought it into social justice. So that's within Catholic social thought, but it it is a legal concept because it was migrated into international law by the treaty of Sai and that's a treaty that founded the ILO in 1919 and since then international law has mentioned it. Philadelphia declaration in the mid30s, the UN uh convention on the elimination of all forms of racial discrimination in the 60s and uh social instruments from the United Nations such as the Copen declaration on social um development in 1995.

[00:21:38]But here's the important part is South Africa is one of 60 constitutions that entrrench social justice in their constitution. 60 constitutions.

[00:21:51]Um so what is social justice? John Rose just described it as fairness to all.

[00:21:58]We describe it as the kind of fairness to all that deals with embracing the equal humanity of every one of every social group in society that is social justice. It's in social sector and that would be reflected in just equitable and fair distribution of all opportunities, resources, benefits, privileges and burdens in a society.

[00:22:26]Again going back to John Rose, it's about it's a distributive concept about how we do we distribute evenly or fairly the burdens of living together and the benefits of living together.

[00:22:42]Now it was embraced in South Africa and as Charles Cosin mentions the constitution is aspirational. So it imposed a transformative duty on our state and in this very same article he talks about that that it imposed a duty on everyone to operate transformatively because the state we inherited he mentions what Orian said no one could mix the significance of the humanitic standard said the values etched upon the court are not those that have informed our past. Our history is one of repression not freedom, oligarchy, not democracy, apartate and prejudice, not equality, understand not open government. So those things like the equality act chapter 5 disappearing in the dark is what Charles Kasin was saying. This is not what we signed up for. This is what said we signed up for. So what did we sign up for?

[00:23:51]Langa J and Muhammad among others Muhor as well. They tell us in this muan that we signed for a a society that is based on social justice but the kind of social justice that is a dimension of Ubuntu. So in other words, we signed up to become a society that is founded on Ubuntu and social justice is one of those pieces of what does a society that is based on Ubuntu look like and I'm going to just quickly now go into the the the next part that um the constitution requires is human rights and it's about equitable access and enjoyment of all human rights not just the social [clears throat] Not just the social economic rights but all of them but equally now we are a better society in that most people have electricity I think over 80% people have electricity over 20 over 80% now have um have water running water and most people who need education get it for free I think the question we've got to ask ourselves when it comes to human rights is what about the ones who are left behind?

[00:25:20]If social justice is one of the values that underpins who we are supposed to become and it's a it's it's part of a broader value system of Ubuntu. Is it fair that sometimes we build the best of bridges that annoy our colleagues from Sweden when we are supposed to be meeting basic needs and becoming globally competitive?

[00:25:47]Should we sometimes say no no this design is too far ahead? It would look beautiful but it would take too much of our resources and given the fact that we have a duty to ensure that everyone is within a flow of basic rights. Let's cover everyone because we've done well.

[00:26:03]I mean under parted those people did not have all of the things that they had. I just want to go back to education as um an area. The president gave us an example of Din Swallow, a young girl who now went to a free school uh went to NSF foret university got into something similar to yes youth employment service.

[00:26:31]I mean I've got my colleague here Tamasu who's coming up with who's who's with my colleague with the youth employment service. So he mentioned everything that we've done to make sure that we free the potential of young people. Some people threw it and see it's rubbish. Some people celebrated it. But there's a middle ground again which is yes. Number one, every child deserves that. Not some. But number two, if all we were fighting for as the historically marginalized were jobs, there would never have been a struggle in South Africa.

[00:27:14]Because if you think about for example the 1943 statement the first bill of rights actually comprehensive bill of rights that includes social economic rights written by intellectuals in the ANC that include pix that bill of rights was not confining the historically repressed to to jobs.

[00:27:38]It was talking about social justice which means everyone should ascend to the highest level possible for human beings.

[00:27:46]And if of course they at the bottom it should not be because they confined by structural inequality. And obviously how do you do that? By dismantling the structures of a party which the colleague see this morning. So why is it not happening?

[00:28:02][snorts] Profi puts the door the problem at the door of Parliament.

[00:28:09]Madame Speaker, why has Parliament not asked the Department of Justice why is chapter 5 of the Equality Act sitting on their desk? Since President Begy, nothing has happened on it.

[00:28:28][snorts] President Begi, I'm not praising you.

[00:28:30]I'm not happy about the land.

[00:28:33]But the moment of dealing with chapter five because I was supposed to reflect on what other people have said. Yes. and on the values and for me here it's a value of concern because chapter 5 was about we don't just open channels of social mobility to a few which be does but we open the channels of social mobility to everyone [snorts] including people repressed because of class because if we go the social justice way white working-class people are accounted for too whilst we are leveling the playing field on the basis of race. Uh improve the quality of life of every citizen. We have improved the quality of life of every citizen but there are gaps. Lastly, build a united and democratic South Africa able to take its place as a sovereign state in the family of nations. What was reflected on this morning is how increasingly our people are treating foreign nationals of African origin.

[00:29:44]I don't have a lot to urge there than to say we need to propagate the values of Ubuntu and the values of the constitution everywhere we go. And that's why when we start events at the chair for social justice at Stanbush University and the Tuma Foundation, we start with the constitution, the African uh anthem, the the AU anthem and thirdly the preamble. And as part of our everyday law and justice project, we think every child should know the preamble. Why? Because in terms of neurologically, neuroscience tells us if they say it all the time, they will aspire to do that. Uh, one of my my granddaughter likes President Beggi's poem. I gave it uh to your team this morning. I am an African.

[00:30:37]And but it makes her feel proud to be an African. and she now talks about being an African, not being a black African, being an African. Like she embraces all Africans regardless of their color, but she's proud to be an African. Why?

[00:30:53]Because poems like that have been placed in her psyche. We want the same thing to be done with our preamble. But with that preamble, we also understand that as South Africans, we want to be a South Africa that is united and able to take its place as a sovereign state in the family of nations. And by that, to be a global citizen, we've got to embrace others. But I'm just going to say that from a government point of view, part of the problem there is the need to make sure that we regulate immigration. And that's why as a social justice chair we've supported the department of home affairs because it's not enough to say immigration unregulated immigration is not a problem.

[00:31:44]If when your child is sick you go you you go to med clinic as I do yes it's not a problem but if you're going to a crowded clinic in the rural areas it's a different story or in the township is a it's a different story. If you had a spas a shop but suddenly there are better people with more resources that are running spas shop, it is a problem for you. [snorts] If you're looking for a job and restaurants won't take you as if there's an invisible sign there that says no South Africans aligned, it is a problem for you. So unregulated immigration and employers who pay less to undocumented immigrants are a problem.

[00:32:26]But we've got to teach our people don't take your law the law into your own hands. But secondly, let's make sure that the police who don't act are held to account. So I want to end and say from a leadership point of view, what we have flagged from the Stalenbush University is we need to do better in aligning our state craft with these goals.

[00:32:55]We've even come up with a tool that is called a social justice impact assessment matrix.

[00:33:01]When government was going to was imposing restrictions on everyone on COVID, we said you're going to kill township economies. You're going to kill rural areas. And we issued a statement and policy brief in April 2020.

[00:33:15]Everything we predicted happened. But we didn't have AI to quantify the future to simulate the future in numbers. So when government tried to increase VET, we simulated the future in numbers.

[00:33:34]It meant increase unemployment which is racialized. You know people tell Trump that h there's unemployment for white people because black people are taking jobs.

[00:33:45]Unemployment is said to be official employees at 32% for everyone, but among Africans is 38%, among white people is less than 7%. Yes, unemployment is too much for anybody who's unemployed, but unemployment still has a racial character. 55% of our economy is owned by 1%. 55%.

[00:34:07]The majority within that 1% are white people. Land is still 72% white. I can go on and on and on and on. The number of people who are able to live in a state that is over 250,000 to their children in South Africa. The percentage of African people who are able to leave more than 250,000 to their descendants.

[00:34:33]Think about it. What percentage is that?

[00:34:37]3%.

[00:34:39]among white people it's close to 60%.

[00:34:45]So clearly the real monopoly game of aparate remains with us as Justice Cameron said in Daniels versus Cryante and your state craft should include simulating the future. We did the same thing now with with the fuel levy. We haven't heard a response from government, but a different government has already asked the private sector to please at least don't increase your your pricing on 20 items, 20 food items. But we could have predicted this.

[00:35:26]We could have made these requests long before it happened. So I'm not one of those who says our problem is corruption. I'm not one of those who says political wiz is a problem. I think we we we too scared of the World Bank and and international institutions that regulate us and whatever they say we don't check it out. So all I'm asking going forward to all government and civil societies when somebody comes up with an idea don't look at the fact that it will solve unemployment today. It might be a Trojan horse.

[00:36:03]ask what does South Africa look like in a 100 years time if we go this route in 50 years time in 30 years time in 20 years time in 10 years time in 5 years time and next year. Thank you.

[00:36:19][applause]