FOLLOWING THE RUTHLESS cuts proposed by the Treasury in the 2021 budget, what the constitution says about the rights of people living in South Africa suddenly becomes a significant issue. All the petitions to Parliament demanding that the budget be rejected speak of human and socio-economic rights. The Centre and the Left call the budget unconstitutional.

The neoliberal Right stays silent on that, repeating the mantra “there is no money”. There never is money for what they don’t want. The Finance and Fiscal Commission (FFC) is a “statutory body”. The Treasury is obliged to consult it. It sent a letter to the Treasury saying that it was “concerned that the government has not considered the impact of Budget 2021 on the rights set out in South Africa’s constitution”. It asked Finance Minister Tito Mboweni “how and where he has applied his mind to these matters”.

So what does the constitution actually say? In the crucial clause on the right to health care, food and water and social security, it says: “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights” (we’ve added the emphasis). It might be that they will refer to this sentence in the constitution, giving it their own interpretation. Maybe this can be the basis for a campaign, but will we win a judgment… Amandla spoke to human rights lawyer Richard Spoor: “The problem is the issue of ‘reasonable measures’ and ‘available resources’. The judges would probably not take sides. One economic school says it is ‘not reasonable’ to tax the rich (or whatever progressive economists suggest); another school says it is reasonable. One school says resources are ‘available’. The Treasury says they are not.”

Backwards not forwards

The rapid spread of struggles against financial exclusion, from Wits University to other tertiary campuses, may just be the vital spark for the coming together of a broad struggle against austerity.

Children, on the other hand, have an absolute constitutional right to “basic nutrition, shelter, basic health care services and social services”. All the qualifying clauses from the other socio-economic rights disappear. Nothing about “reasonable measures”, “within its available resources” or “progressive realisation”. Simply “Every child has the right”. But what has this constitutional “right” produced? After 25 years of democracy, more than one child out of every four in South Africa is undernourished and has stunted growth.
And with cuts in basic education, public health and social grants, the government is pushing for regression of socioeconomic rights across the board. Far from “progressive realisation”, we are going backwards. Billions of rand have been withdrawn from the NSFAS funds for support to hundreds of thousands of students. Already in 2020 there was a moratorium on filling vacant posts and a wage freeze in the public service, with packages offered for early retirement. The government’s plan is to continue the “freeze” for three years.

Only public service can guarantee “rights”

The government has created an emergency for the people. Its plan is to shrink the public sector – both its absolute size and its share of the whole economy. So in effect the budget policy is promising a more dysfunctional and incapacitated state. We face the prospect of rampant looting combined with cuts in public services. But it is only public services that can be made free or affordable for the majority. That is a simple fact. It is done by redistribution-taxing the rich, with wealth taxes, income taxes and taxes on profits; clamping down on private and corporate tax dodging.
That is why all socioeconomic rights won by the working class and the poor in any country for the last hundred years have been achieved through struggles for more public services. There are no free lunches from private businesses – they sell goods and services to the highest bidder for profit. In the same way, the environment, water quality, air quality, none of them will be protected without strong intervention by the state.

Response of students and workers

Now the students have taken the matter to the streets. They plan to shut down all higher education institutions. They have taken their grievances to the government, not to the Constitutional Court. Will the workers follow? Business day columnist Duma Gqubule cut to the chase, when he said, “Wednesday was a watershed moment in the post Apartheid economy. We saw the first death due to austerity. That irrational austerity has defunded the National Student Financial Aid Scheme (NSFAS) and cut R8 billion from university subsidies.” Gqubule may not actually be correct that Mthokozisi Ntumba is the first death due to austerity. How many people have died because they were not able to access public services? And what about the others who have been killed protesting poor services? But the essential point is austerity and neoliberal economic policies have led, and will lead, to loss of life.

Public sector strike 2014. Public sector workers will be key to whether a co-ordinated challenge can be mounted against the attack on public services launched by the ANC government.

Will the students lead?

The rapid spread of struggles against financial exclusion, from Wits University to other tertiary campuses, may just be the vital spark for the coming together of a broad struggle against austerity. There are many examples in history of students acting as detonators, drawing society’s attention to key ills and then inspiring mass action. The role of both high school and tertiary students in the national liberation struggle has been recognised by the annual marking and celebrating of June 16 as a public holiday. May ’68 in Paris is legendary in terms of the revolutionary potential of student struggles, and especially for the link that they made with the workers’ movement. In recent times, student struggles have helped galvanise broader struggles against neoliberalism (Chile) and climate change (Fridays for Future). But opportunities have been missed. There was an opportunity to bring together the Marikana, Numsa and Fees Must Fall moments. It didn’t happen. Can the obstacles to such broad, mass struggle be overcome this time round?

Will the workers follow?

Public sector workers will be key to whether a co-ordinated challenge can be mounted against the attack on public services launched by the ANC government. NSFAS is part of those public services. So is the CCMA. Students and workers alike are suffering. But Carol Paton, writing in the Business Day, was optimistic that Ramaphosa has nothing to fear from the public sector unions:

“After years of talking about trade-offs but not doing them, some big trade-offs are suddenly done: the budget pencilled in a 0% cost of living increase for public servants for the next three years and did not increase social grants in real terms. On top of that, a decrease in corporate tax was thrown in for 2022, the clearest signal of all that at the top levels of government there is an appreciation that investment is the country’s number one priority.

It was an audacious budget; how will it go down politically? The biggie is the public sector wage bill. It is an open wound in the relationship between the ANC and Cosatu. A strike of some sort is inevitable. Unions will have to send a signal that they cannot be completely ignored. But some are more predisposed tostrike than others. The National Education, Health and Allied Workers Union (Nehawu)— the angriest of the Cosatu unions — is considerably constrained by essential services rules, and the SA Democratic Teachers Union, the least constrained, is the least militant. The leadership of the Public Servants Association, a Fedusa-aligned union, has become very outspoken and militant. But the members have never once been on strike.”

So, according to Paton, Ramaphosa has nothing to fear. But is this accurate? In the first instance, the killing of Mthokozisi Ntumba has created unprecedented anger, not just amongst students but in all sectors of society.

Law cannot substitute for mass struggle

And then there is the growing coalition around the “unconstitutionality” of the 2021 budget. This of course is a double-edged sword. On the one hand it can unite and radicalise the struggle against the budget as a fundamental degradation, which needs to be resisted at all costs. On the other hand, it could collapse the potential for political struggle into a legal one, jeopardising the potential for organising, mobilising and movement building. Already, the failure of government to honour the 2018 – 2020 wage agreement is headed for the Constitutional Court.

What happens if the unions lose? Putting all their eggs in the legal basket and not preparing their members for a bitter, hard and long struggle would be disastrous. Missing in the struggle against austerity is an organisational vehicle that can bring the different constituencies and struggles together and where political and legal struggles can be united in an effective strategy. People’s Assemblies, in many different countries and contexts, have been effective in uniting diverse struggles against neoliberalism.

Imagine if students,working with public sector unions and other movements were to host assemblies in different centres of the country, where common struggles can be shared and strategies developed. The coming winter may just turn into Ramaphosa’s own winter of discontent. Dreaming is easier than doing. But anger amongst the excluded is brewing. The critical question is: can we learn from the lost opportunities of 2013 – 2016?