As published by Siyabonga Hadebe in the African Times
The Constitutional Court of South Africa stands as a potent symbol of hard-won freedom, a gleaming architectural and jurisprudential rebuke to apartheid’s tyranny. Its rulings on socio-economic rights, dignity and equality promised a rupture from a past where the state – the colonial and apartheid corpus– stood irrevocably alienated from, and hostile to, the Black majority – the demos.
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However, the very foundation supporting this beacon exposes a troubling continuity: its heavy reliance on private, mostly foreign funding, routed through the Constitutional Court Trust (CCT).
Although originating from post-1994 necessity and cloaked in noble intent, this private funding model acts as a sophisticated agent of recolonisation. The model sustains ‘assisted justice,’ promotes ‘directed justice’ favouring elite and external interests, and systematically excludes the Black majority from genuine control of their highest constitutional guardian, reasserting the damaging corpus-demos divide beneath a veneer of liberal ideals of constitutionalism.
Tshepo Madlingozi’s article, Social Justice in a Time of Neo-Apartheid Constitutionalism, critiques South Africa’s post-1994 constitution. He argues that it created a “neo-apartheid constitutionalism” because it has not dismantled the country’s deep-seated social divides. He contends that by extending human rights without first decolonising the Western concept of humanity, the constitution risks merely transforming the status of the formerly oppressed to one that imitates their former colonisers.
On the other hand, Mogobe Ramose argues that the Constitution has constitutionalised the injustices of colonial conquest by ignoring the ethical imperative to redress its epistemological, economic and political consequences. Meanwhile, Sanele Sibanda adds that the Constitution, shaped by dominant group interests, was never designed to achieve genuine social justice or structural transformation. The mere existence of the Constitutional Court Trust, a conduit for privatised power and the collapse of public order in South Africa, entrenches Achille Mbembe’s notion of ‘fiscality.’
Fiscality means that political legitimacy and institutional survival become tethered to the capacity to attract, manage and appease private, usually foreign, sources of capital, rather than to the democratic will of the people. In this paradigm, judicial independence risks being subtly recalibrated to align with donor priorities, while people are reduced to passive observers of legal processes supposedly carried out in their name.
Thus, this article argues that the ConCourt’s infrastructure and raison d’être are an artefact of financial dependency, translating constitutional ideals into market-compatible, donor-approved jurisprudence. This dependency on external funding has allowed the post-apartheid state and its foreign collaborators to repurpose colonial institutions and laws in a way that entrenches neo-patrimonial rule.
This means that despite the shift to democracy, the state’s structures continue to exclude the majority and favour a select few. The result is a form of recoloniality, where the state functions as an impersonal entity (corpus) that is fundamentally disconnected from its people (demos), prioritising elite dominance over inclusive governance.
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Benevolent Strings: The CCT and the Architecture of Assisted Justice
According to the CCT website, it was established in 1995 and manages funds for the Court’s benefit, supporting law clerks, the library, the Art Collection and initiatives like the African Law Clerks Exchange. Its donor roll reads like a directory of Western philanthropic power: Ford Foundation, Open Society Foundations, Carnegie Corporation and European governments.
Notably, the Carnegie Corporation funded a five-volume ‘poor white’ study on impoverished Afrikaners in the 1930s, whose recommendations have since been criticised for entrenching segregation and laying the groundwork for apartheid. And Open Society Foundations, meanwhile, has long been criticised for using its global grant-making to shape judicial and policy agendas in ways that align with liberal capitalist orthodoxy.
This dependency is structural and troubling. The CCT claims to avoid funds from entities likely to litigate before the Court, primarily sourcing from overseas, while placing contributions by South African capital, usually white, to anonymity via a US intermediary. Now acting as benevolent Good Samaritans of the post-1994 period, South African capital largely retains apartheid-era structures, has moved capital abroad, and has avoided transformative measures.
Professor Njabulo Ndebele interprets this seemingly virtuous arrangement as white capital evading responsibility to redress historical injustice, leaving Black South Africans trapped in what Frantz Fanon called the ‘zone of non-being.’
Together, these dynamics construct a paradigm of ‘assisted justice’: the ConCourt depends on external patronage instead of being fully supported by the people it serves. The South African state, shaped by a colonial legacy of extraction, cannot adequately fund its apex court, leaving it reliant on supposedly benevolent foreign donors.
This mirrors what Australian academic Ntina Tzouvala calls a “standard of civilisation,” which grants conditional inclusion for non-Western communities only if they conform to capitalist modernity. As a result, human rights become a moving target, and South Africa’s Black majority is denied full rights while expected to meet shifting Western expectations.
This arrangement replicates the colonial logic in which essential governance functions depend on external validation and resources. It undermines the ConCourt’s perceived sovereignty and establishes a subtle trusteeship, where the Black majority are reduced to passive recipients of externally enabled justice, rather than sovereign custodians of their apex court. This replicates the ‘private ownership’ model of the South African Reserve Bank.
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Directed Justice and the Whispers of Recolonial Influence
The ConCourt’s dependence on foreign funding from ideologically driven foreign funders raises concerns about ‘directed justice’. While direct interference seems improbable, this system subtly channels influence. Funders have particular perspectives on human rights, the rule of law and development. The CCT, needing sustained support, may consciously or unconsciously prioritise projects aligned with donor interests.
For example, significant funding for the African Law Clerks Exchange, though commendable, could encourage a transnational legal framework preferred by these foundations. Likewise, the globally acclaimed Art Collection, supported by the US Ambassadors Fund for Cultural Preservation, may eclipse urgent funding needs for direct access to justice initiatives benefiting rural and marginalised communities.
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The Trust’s elite composition, comprising esteemed justices and professionals, further distances funding priorities from the lived realities of the Black majority. Justice becomes ‘directed’ not by the demos (the people), but by a convergence of international philanthropic trends and domestic elite perspectives. This risks marginalising locally rooted conceptions of justice still grappling with apartheid’s economic and spatial legacies.
Even though the ConCourt’s jurisprudence is portrayed as formally independent, it operates within an ecosystem subtly shaped by foreign benefactors’ preferences. This mirrors colonial administrations that designed legal systems to serve imperial interests rather than local needs. Neo-apartheid, recoloniality, and state capture are more real than perceived.
The elites and influential groups, including the media, NGOs and academia, have found ways to misinform, leaving the majority disempowered and structurally excluded from meaningful participation in institutions meant to protect their rights.
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Exclusion Embodied: The Black Majority and the Hollowed Social Contract
The core injustice blemishing the post-apartheid dispensation is the systematic exclusion of the Black majority from playing a meaningful role in supporting their Constitutional Court. The CCT model exposes a deep divide between the state and its people, as the state is almost admitting to failing to fund a critical branch of government and outsources this responsibility to foreign entities and a domestic elite managing the trust.
The state of paralysis appears intentional as the economy and security continue to flounder, while both local and funders prioritise their own interests. Navy Admiral Monde Lobese has warned that severe budget constraints have left the SANDF logistically paralysed, undermining its ability to secure the country’s maritime borders.
He emphasised that this vulnerability is not due to a lack of will, skill or commitment from the Navy, but rather the failure of the National Treasury and government to adequately resource the military.
Similarly, Nhlanhla Mkhwanazi’s recent ‘revolt’ can be seen as another symptom of structural neglect, where key state institutions are incapacitated and forced to operate under severe resource constraints. These instances exemplify Mbembe’s concept of ‘privatised sovereignty,’ in which extractive economic priorities and selective allocation of coercive power undermine the state’s capacity to protect citizens and strategic assets.
State security minister Khumbudzo Ntshavheni has warned that “one of the risks [facing the country] is the risk of coup d’état.” However, she avoided addressing the deeper, systemic patterns of elite capture and institutional neglect that continue to erode the South African state and its democratic framework.
Meanwhile, the Black majority, whose liberation the court symbolises, are structurally sidelined. Their potential contributions are funnelled into anonymity, denying them the dignity and agency of visible investment in their constitutional future. This exclusion mirrors a broader economic alienation, where Black South Africans remain disproportionately locked out of ownership and control.
The social contract is undoubtedly hollowed out, as the court and other key institutions, reliant on distant patrons rather than the people they serve, risk becoming institutions above the demos, not of it.
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Towards Authentic Sovereignty: Reclaiming the ConCourt for the People
Breaking this cycle requires a radical reimagining grounded in decolonial praxis. The South African state must be held fully accountable for financing the Judicial Branch, including the Constitutional Court. Reliance on the CCT (foreign funding) for its functions constitutes state failure and perpetuates recolonial dependency. Decolonial financing could include a transparent endowment from corporate or wealthy contributions, with strong safeguards, and visible public participation to ensure collective ownership and accountability.
This means that the CCT must be strictly supplementary, with all funding fully disclosed and debated to ensure projects serve local justice priorities, not donor agendas. Rebuilding the ConCourt and a just justice system on the sovereignty, resources and visible participation of South Africans, especially the Black majority, will allow it to transcend colonial shadows, fulfilling the transformative constitutionalism promised in 1994. The gavel must reflect the people’s will, not distant patrons.
Around 2020, former Chief Justice Mogoeng Mogoeng caused a stir when, in his Judiciary Report, he revealed that he had been offered R600 million to ‘modernise’ the courts. The courts’ poor condition, central to delivering justice, reflects persistent underinvestment and neglect. This revelation came at the height of ex-President Jacob Zuma’s arrest, which Mogoeng likely deemed immoral and unlawful. Unfortunately, he retired abruptly before disclosing full details of the sponsorship, highlighting where real power truly lies.
This article has been published in partnership with the African Times.
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