The Constitutional Court functions as an integral part of the post-1994 ruling class under the leadership of the African National Congress (ANC). It is not unusual for supreme courts to play this role.

On the contrary, it is normal, because supreme courts are usually a specialised sector of the dominant political-ideological institutional arrangements. Through their rulings, they defend and entrench the dominant ideology. More than this, they establish and promote legal legitimacy for the dominant ideology.

This does not mean that the highest courts – including the Constitutional Court – do not sometimes rule against the legislature, the executive, and the state administration. They do so regularly, especially in the contemporary South African state, which has become embarrassingly dilapidated, mismanaged, and corrupt. But rectifying state failure does not per se meddle with the ideological commitments of the dominant elite.

The ideological commitment at issue here is not merely transformation, which is to say, a project parading as redress for historical racial discrimination. The ideology is better described as transformationism, sometimes also called the national democratic revolution (NDR).

Ideological Creed

Transformationism is the totalitarian ideological creed and corresponding project of South Africa’s post-1994 dominant elite led by the ANC to achieve and maintain the ANC’s (and aligned organisations’) hegemony over all spheres of South African society through centralised control of all instruments of government, power, authority, and public influence.

This includes all legislatures, centres of executive authority, the judiciary, the civil service, police, defence force, all organs of the state, as well as the economic and civil sectors, professions, education, and all public services, whether provided by the state, private, or civil sectors. The ANC has already articulated this objective countless times in its strategy and tactics documents.

The strategies employed for this purpose include the misnamed broad-based black economic empowerment, affirmative action, and the deployment of party operators; in other words, cadre deployment in the public sector and elsewhere.

Representativity, embodying the ANC's beliefs about equality, namely that the national population composition must be reflected in all spheres of society, is similarly a consistent strategy of transformationism.

Transformationism’s theory is to prioritise the empowerment of the entire black African population (that is, to be broad-based), but in practice it serves the interests of oligarchical power.

Inherent in transformationism is the widely propagated belief that transformationism irrefutably embodies the good and virtuous while that which stands in opposition to it is evil.

Arch-antagonist

Freedom, embodied in individual freedom and – very importantly – also in autonomous institutions in the economic, civil, and cultural spheres, materially bolstered by private property, and free from ANC and state control, is the arch-antagonist of transformationism.

The Constitutional Court has thus far distinguished itself largely as the supreme judicial interpreter and patron of the project of transformationism. That is to which its judgements attest.

Don't forget some of its most (in)famous judgements:

• •AgriSA v Minister for Minerals and Energy in 2013 regarding the legitimisation of the state's deprivation of mineral rights;
• •South African Police Service v Barnard in 2014 regarding affirmative action and representivity;
• •Glenister III in 2015 regarding the legitimisation of the dominant interpretation of history;
• •the Pretoria Street Names judgement of 2016, similarly, in support of the transformationist view of history;
• •AfriForum v Free State University in 2018 about legitimising the transformationist view regarding homogenising the language of instruction;
• •and several others, including the recent judgement of Malema and the EFF over the “Kill the Boer” slogan, in which the court likewise protected a transformationist view of history and specifically the dominant ruling class’ struggle history.

Winds of Change?

But recently we have seen rulings from the Constitutional Court that raise the question of whether the Court has begun to shift its thinking about power and transformationism.

On 8 May, the Constitutional Court’s Phala Phala ruling caused a major predicament for President Cyril Ramaphosa and the ANC.

Yet, while going against the interests of the president, the ruling leaves the ideology of transformationism as such entirely untouched and therefore has no serious ideological implications.

Phala Phala is, in fact, a rehash of the ruling of the Constitutional Court in the Nkandla case surrounding former president Jacob Zuma ten years ago in March 2016.

Then, as now, it was about alleged presidential shenanigans. Then, as now, the National Assembly under the ANC failed in its duty to hold the president accountable. Then it was about the accountability of the president following a report by the public protector; now it is about the accountability of the current president for his antics in Phala Phala.

But then, as now, the judgrment, while politically significant (it was the beginning of the end of Zuma in the ANC), was without any ideological repercussions. And now it could also mean the beginning of the end of Ramaphosa's presidency.

I must stress that while not politically trivial, it is largely ideologically inconsequential, leaving transformationism untouched. The Phala Phala decision was in no way about ideology.

These judgements are ideologically agnostic and leave transformationism intact. As such, they are now, as with Nkandla, regarded too optimistically. They do not at all indicate ideological impartiality on the part of the Constitutional Court.

This notwithstanding, there are actually still good reasons for asking whether the Constitutional Court is becoming uncomfortable with certain egregious manifestations of transformationism.

Relevant here is another recent judgement of the Constitutional Court on the National Health Act (of 2003) delivered on 18 May. The applicants in the matter were Solidarity, the South African Private Practitioners Forum, and several other actors in the medical sector. The minister and director-general (DG) of health and the president were the respondents.

While the case was not directly about the ANC's much-cherished and arch-transformationist policy, the National Health Insurance (NHI) Act, the ruling does have potentially detrimental implications for the NHI as some of its principles are significantly compromised by the ruling.

Sections 36 to 40 of the 2003 Act provide for a scheme seeking to incisively regulate private health services. According to the scheme, medical services may only be created, expanded, or adapted; certain medical services provided; and medical supplies purchased if the director-general of health has issued a so-called certificate of need for such services.

The director-general would issue such a certificate after a needs assessment of the population (in practice, the needs of poor black people are especially considered) for medical services in the area for which the application has been made. According to these provisions, providing medical services without a certificate is a criminal offence and punishable by imprisonment of up to five years.

Centralised State Control

The scheme is transformationist. It provides for centralised state control, is designed to achieve countrywide equality of healthcare, and aims to co-opt private healthcare providers into the service of the state's ideological preferences on pain of criminal sanction.

However, it seems that for the court, this scheme, despite its transformationist character, was illegitimately excessive.

It declared the scheme of sections 36 to 40 inconsistent with the Constitution and invalid for its irrationality since it could not achieve its set goal; moreover, sections 36 to 40 unjustifiably limit the right to choose a trade, occupation, or profession freely, which is at variance with section 22 of the Constitution.

This judgement may merely be a one-off – the first and last in which the Constitutional Court rules against the machinery (the means), if not necessarily the goals, of transformationism. Or is it perhaps a turning point?

To answer the question, we must assess the political-ideological context, which is also the context in which the courts deliver judgments.

Judges, of course, never say that they are swayed by this context. Nevertheless, context can be of great, perhaps even decisive, importance in adjudication.

Two items regarding the context are relevant.

The Political Context

The first is that ANC hegemony is waning.

This leading elite is no longer the powerful ANC (and allies) of the year 2000, 2010, or even just a few years ago. Whereas there were previously great political and reputational risks for the courts, including the Constitutional Court, to rule against the ANC-dominated government with overwhelming popular support, it is now much easier. Previously such a judgement would have seriously jeopardised the court's institutional security, being the weakest branch of government, especially one dominated by an overwhelmingly potent ruling party.

The court is no longer exposed to the sanction of a single overwhelmingly strong ruling party. Within this divided context, the court can now act more impartially with much less risk to its institutional security.

Rulings against the government in which the ANC is no longer so dominant may therefore occur more easily.

The Ideological Context

The second factor is the ideological context. As explained earlier, this is weightier than the political factor, because transformationist ideology is more widely held and ingrained in the broader dominant elite and popular consciousness, bearing the character of South Africa’s own state religion.

But after three decades of transformationism, it is evident that a state dominated by a transformationist agenda has created a vulnerable and disempowered public. The logic of transformationism as embodied in cadre control has hollowed out the state, destroyed infrastructure, suppressed economic growth, and caused massive unemployment, especially among the youth. Instead of transformationism auguring broad empowerment, it has given rise instead to elite privilege embodied in an obscenely enriched oligarchy in and around the ANC.

It is no longer controversial to say this. It is part of South Africa's official historical record as contained in the testimony and reports of, for example, the Zondo and Madlanga commissions. The black economic empowerment project, once an untouchable component of transformationism, is now more widely regarded as an increasingly controversial and dubious project, which is losing some support in certain quarters, including among portions of the black elite.

Just as failed and failing transformationism describes our political context, so too does it outline the context in which the courts, including the Constitutional Court, adjudicate cases.

While the Constitutional Court, as explained above, as part of the dominant elite, remains the supreme judicial apologist of transformationism, it is becoming more aware of some of the excesses and the bad fruits that transformism bears. In many instances it has become undeniable that untrammelled transformationism is to the detriment of the public, including the very sections of the public that are supposed to benefit from it.

The court is finding it increasingly difficult to tolerate this and appears to be showing a willingness to give rulings that curtail some of its excesses.

Now, when the court does this, it will of course not make any explicit ruling against transformationism, or any of its building blocks, as such. Rather, it will denounce and rule against transformationism's results - as it has done in the National Health Act case.

Sakeliga, it should be mentioned, has also previously achieved success in comparable circumstances in the Constitutional Court.

Independent Legal Action

With this in mind, independent legal action by the many institutions of civil society pushing back against transformationism can bear surprisingly good jurisprudential fruit.

Sharp legal reasoning with a view to judiciously crafted legal relief, which wishes to protect the public from the damaging consequences of transformationism, may indeed come to have greater purchase with the court than previously thought possible.

In other words, while a less hegemonic ANC is ushering in more political fragmentation, fluidity, and instability, it may paradoxically be providing more room for the courts to exercise constructive independence in the public interest.

Close scrutiny of forthcoming and future Constitutional Court decisions will determine if this observation constitutes a meaningful shift, or a brief aberration.