South Africa’s constitution is often celebrated as a transformative document – a beacon of human rights and a repudiation of apartheid-era segregation.
Central to its founding principles is the powerful preamble: “South Africa belongs to all who live in it, united in our diversity.”
This statement was a bold declaration against the injustices of apartheid, which confined the majority black population to Bantustans and reserved the land for a privileged minority.
It was a resolute affirmation that South Africa now belongs to all its people, regardless of race or background.
However, recent interpretations by the Constitutional Court have arguably distorted this historic pronouncement.
By broadly interpreting the constitution’s rights conferred to “everyone” as including not only South Africans, but also foreign nationals, the court risks undermining the very ethos of the nation’s founding – a nation that belongs to its citizens, especially those who suffered systemic exclusion and denial of dignity.
The landmark Endumeni judgment of the Supreme Court of Appeal (2012) emphasised that language used in legal texts should not be read in isolation, but within the broader context – social, historical, and constitutional (teleological) – that gives it meaning.
Applying this principle to the constitution’s preamble and language, it becomes evident that the phrase “everyone” was not intended to be an open-ended inclusion of all people globally.
Instead, it refers to the South African people – those who have historically been denied dignity and rights under apartheid.
The constitution was crafted as a social contract to redress historical wrongs and ensure the dignity of the majority marginalised population is restored and protected.
The current broad interpretation by the court has profound implications. By including foreign nationals and illegal immigrants under the umbrella of “everyone”, South Africans – particularly the historically marginalised black majority – are placed in competition for scarce resources such as housing, health care and social services.
This interpretation risks exacerbating social tensions, fuelling xenophobia, and undermining efforts to build a cohesive nation founded on the principles of justice and redress.
Moreover, this approach arguably perpetuates the exclusion of the black majority.
They were once forcibly removed from their land and stripped of their dignity.
Now, they are expected to compete with the entire world for access to limited resources.
Such a narrative risks reversing the progress made towards redressing historical injustices, replacing it with a zero-sum competition where the rights of South Africans are diminished in favour of an overly broad inclusion.
The phrase, “belongs to all who live in it”, was not a declaration that South Africa belongs to everyone from across the world, but rather to all its citizens, especially those who endured systemic oppression and exclusion.
It was a call for national sovereignty rooted in the collective identity and dignity of its people – particularly the black majority that was marginalised.
Contextually, this statement was a radical affirmation that the nation’s land and resources are the patrimony of its citizens.
It was a repudiation of apartheid’s racialised land dispossession and a pledge to build a society founded on equality, dignity, and inclusive nationhood.
The expansive interpretation by the court threatens to undermine the legitimacy of the constitution itself.
The document was borne out of a struggle against systemic injustice, a collective effort to rebuild a nation that was torn apart by racial segregation and oppression.
When the judiciary appears to distort its fundamental principles – treating the constitution as a promiscuous document that can be reinterpreted to serve transient political or social interests – there is a real risk that the people will view the entire constitutional order with suspicion and disdain.
This could lead to a dangerous erosion of trust, with some citizens perceiving that the constitution is being prostituted – used as a pliable tool for political expediency, rather than as a sacred social contract rooted in justice and shared values.
While the principles of human rights are universal, their application must be rooted in the specific context of SA’s history and societal realities.
The court must return to the interpretative approach advocated in Endumeni – reading “everyone” in light of the constitution’s transformative goals.
Only then can the judiciary uphold the true spirit of the constitution: a nation where the black majority, after centuries of exclusion, is empowered, not displaced.
