by Christo Landman, PhD; Former Constitutional Commissioner (s.185) for the Protection and Promotion of Civil Rights

The Bill of Rights (Chapter 2) is a cornerstone of democracy in SA. However, the Bill of Rights is subject to limitations contained or referred to in section 36, or elsewhere in the Bill. Section 36 reads that the rights in the Bill of Rights may be limited only in terms of law of reasonable general application.

This poses severe problems. Hence any party - such as a communist party or Christian Democratic Party – can utilize section 36 to interpret each and every stipulation of the Bill of Rights. For instance, section 11 of the Bill of Rights reads that everyone has the right to life:

• The ANC as majority party interprets section 11 as ample grounds to abolish capital punishment but legitimize abortion and applies s. 36 to enact accordingly. 
• The CDP, for instance, argues that God has given the state the power of the sword. Hence capital punishment is allowed under limited conditions. Abortion is prohibited, because human life starts at the moment of conception.

Another example: the equality clause (s. 9) allows for special legislative and other measures to protect or advance disadvantaged persons or categories of persons:

• The ANC applies s. 9(2) on Blacks.
• The CDP, on the other hand, applies s.9(2) on all disadvantages persons.

From this state of affairs flows a logical conclusion that since government offers a unique interpretation of the constitution, within its own dogmatic presuppositions, that government should be distinguished from the constitution itself.

The majority party functions according to its own structures and party structures do not coincide with the structures (departments, etc.) of government.

However, in a totalitarian context, such as the ANC majority party, the differentiation is uprooted and the differences between state, government and party are progressively eliminated.

Although the constitution provides for freedom of expression (s.16) and that persons may not be denied the right with others to form, join and maintain organs of civil society [s.31(1)b], the governing ANC tends to see organised education and organised sport, among other aspects, as organs of state. Hence, President Mandela at one point in time appointed a commission to investigate organised sport in SA.

The inevitable conclusion is that a party with a Christian democratic agenda differentiates between state, government, party and organs of civil society. But, a totalitarian party, such as the ANC, erodes the differences and, in the end, the party becomes the state and the state a one party state.