Jurisprudence 110 Assignment
Constitutionalism: The development of South African law
Mr. Andile (AZ) Ntando
Constitutionalism: The development of South African law
1. Introduction
‘Change is inevitable. Growth is optional’.1 South African law has developed under a form of
constitutionalism that is ever-changing. Thus, the view of the constitution as a historic bridge
between an authoritarian past and democratic future does not embody the notion of a
transformative constitution as it implies a transition from one point to another, rather than a
system of ceaseless growth, continuously adapting to the on-going changes of society. This
essay will provide an exposition on the different approaches to constitutionalism, namely the
transformative and decolonial approaches, also distinguishing between the approaches to
constitutionalism, formal and substantive equality and elucidating on the notion of bifurcation
and post-conquest constitution all in the context of South African law and constitutionalism.
2. Transformative Constitutionalism Approach
2.1 Definition of Transformative Constitutionalism
The concept of Transformative Constitutionalism is vastly contested to high degree, for it to be
understood clearly, the circumstances and rationale to the advent or popularisation of the notion
of a transformative constitutionalism approach to the law must be comprehensively delineated.
Prior to the development of the Interim Constitution of 1994, South Africans were subjected to
laws that championed racial segregation and inequality in every sphere of civil society. After
the Multi-Party Negotiation Process,2 the adaptation of the Interim Constitution of 1994
transpired and brought numerous significant changes to the country and subsequently the
people’s lives.
As mentioned, there is no infallible or absolute definition but a common idea from the
multitude of views is that a transformative constitutionalism approach seeks to rectify the
injustices of the past, injustices that were experienced by the majority population of South
Africa which were victims of the unjust Apartheid laws. However, the definition of the
JC Maxwell The 21 Irrefutable Laws of Leadership (1998)
A negotiation forum established in 1993 consisting of several participants, including political party and
Homeland leaders, convened to plan a new political dispensation for South Africa
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transformative constitutionalism approach also connotes that it is not a transitory approach,
rather an on-going process of constitutional enactment, interpretation, and enforcement with
the sole purpose of transforming and balancing a society of deeply entrenched discrimination
and inequality on the grounds race and colour to a society based of egalitarian values,
multiculturalism, and social justice through participatory democratic processes.
2.2 Difference between formal equality and substantive equality
The prime objective of Transformative Constitutionalism is substantive equality as opposed to
formal equality. The meaning of the term ‘equality’ is as contested as the meaning of concept
of Transformative Constitutionalism. For a millennia, writers and thinkers have contemplated
on the meaning of equality.3 Fredman stated:4
We all have an intuitive grasp of the meaning of equality and what it entails, yet the
more closely we examine it, the more its meaning shifts.
In light of this, the definition of formal equality can be understood in this way, it is a notion
that, in practise, requires individuals to be treated in a similar manner when in a similar
position, endorsing that people should not be treated differently based on arbitrary variables
such as race, gender, culture or religion. Thus, the fundamental idea of this form of equality is
that, when all people are treated equally in the same situations then there can be no ‘direct
discrimination’.5 In a multicultural society, this form of equality individualises oppression and
disregards group marginalisation and oppression.
The Transformative Constitutionalism approach opts the substantive equality route because it
shifts away from the negative view of equality which is the right to non-discrimination to a
more positive view which is the right to substantive equality, and it also addresses the
systematic discrimination, entrenched domination, and inequality. It does this by addressing
both direct discrimination6 and indirect discrimination7 through recognising and
For a philosophical and historical account, see S Fredman Discrimination law (2011) ch 1.
Fredman (n 3) 1
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When an individual or group is treated less favourable than others because of their background or
characteristic such as race, culture, or gender.
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n 5 above
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Discrimination that occurs when there are polices in place that are the same for everyone but has unfair effects
on a particular group.
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accommodating differences and ensuring that discriminatory policies are not reinforced in any
sphere of civil society. 8
2.3 The Constitution as a bridge
The post-amble of the Interim Constitution of 1994 reads as follows:
“a historic bridge between the past of a deeply divided society characterised by strife,
conflict, untold suffering and injustice, and a future founded on the recognition of
human rights, democracy and peaceful co-existence and development opportunities for
all South Africans, irrespective of colour, race, class, belief or sex’’.9
The Interim Constitution in its post-amble is described as a bridge, spanning from an
authoritarian regime to a democratic order, enabling the people of South Africa to traverse to a
social justice, egalitarian South Africa. This metaphor has been contested as it does not embody
the notion of a Transformative Constitution as a permanent ideal that enables constitutional
flexibility. It has been argued that this portrays the constitution as rigid because it connotes that
it is of a transitory nature. However, perhaps this metaphor is not meant to describe a
transformative constitution, rather to describe an interim constitution as a bridge spanning from
an authoritarian regime to a transformative constitution that will enable continuous
constitutional developments.
2.4 Challenges of Transformative Constitutionalism
2.4.1 Access to equal justice
Equality in the justice system can best be described as the privilege of the privileged, in a sense
that, the quality of legal representation is largely dependent on one’s socio-economic status.
This issue is exacerbated by the fact that most South Africans cannot afford legal representation
in a country with a high crime rate. Kofi Annan, the Secretary General of the United Nations
wrote:
Smith, A ‘Equality Constitutional Adjudication in South Africa’ (2014) 14 African Human Rights Law Journal
609
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Post-amble of the Interim Constitution of South Africa 1994.
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“We have seen that without a credible machinery to enforce the law and resolve
disputes, people resorted to violence and illegal means. And we have seen that elections held
when the rule of law is too fragile seldom lead to lasting democratic governance.”10
Considering this, the unequal access to justice is the greatest threat to the current democratic
dispensation. This suggests that the challenge of the transformative constitution, which is meant
to be something less than a revolution might very well lead to it. 11
2.4.2 Responsibility for transformation and reconciliation
A transformative constitution must encompass the desires of the masses, this transformation
for all cannot be the responsibility of a few. The courts alone cannot address the inequalities
prevailing in the different institutions of government and spheres of civil society. It is the
responsibility of every individual to see to it that transformation occurs alongside
reconciliation between victims and perpetrators, to heal from the past and not forget it but
view people for who they are in the present and not as victims or beneficiaries of the
authoritarian regime. It is also the responsibility of the three arms of government to enact
legislative reform to transform the society, however, we must bear in mind that the
transformative constitution is intended to be something more than just reforms. 12
2.4.3 Legal education
Legal education is a large contributing factor in the current state of the law, the way law
students are taught is of paramount importance in reshaping the legal landscape and
ultimately the society at large. Legal students must be able to think critically about the law
they will go on to practise, with the values of the constitution at in mind rather than viewing
the law as infallible and unquestionable.13
2.4.4 Legal culture
This issue draws focus not to the future legal practitioners, but the current legal culture made
up of those who have already received their legal education. The current legal culture is
United Nations Development Program Access to Justice: Practice Note (2004) 2.
P Langa Transformative Constitutionalism (2006) 17 at 355
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P Langa (n11) at 358
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P Langa (n 11) 356
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characterised by a conservative jurisprudential approach. This is not to disregard the legal
practitioners that take into cognisance substantive reason. However, we must safeguard
against the perpetuation of a conservative legal approach, just as much as haphazard
adjudication masquerading as substantive reasoning as that would undermine the Separation
of Powers and lead to the centralisation of authority. 14
3. Decolonial Approach
3.1 South African history as a product of conquest
The history of South Africa has become one characterised by conquest and resistance.
According to Saul,15 South African history occurred in 5 phases with the first phase of South
African legal history focusing on customary law as the main source of law for the indigenous
people and was mainly passed down orally. The second stage is the advent of the Dutch, who
colonised on the International Law of the time, with the Roman-Dutch law of Holland,
Baatavian Placaaten, and the Statutes of India, as the main sources of law, completely
disregarding customary law. In the third phase, English law came to pass by virtue of the
British colonising the Cape, however they allowed for the continued application of RomanDutch law. Phase 4 was the establishment of Apartheid laws from 1948 which deepened
racial oppression and domination. The 5th and final stage was the establishment of a
transformative constitutional democracy in 1996 after decades of resistance and centuries of
colonisation. Thus, South African history can be regarded as a product of conquest as it has
been characterised by colonial rule, oppression, and resistance to said oppression.
3.2 Bifurcation
The term bifurcation refers to a society that is divided into two zones, the zone of beings and
that of non-beings, this reflects the basis of the colonisation of South Africa by the Dutch, as
they disregarded the customs of the indigenous people, labelling them uncivilised and
claimed that South Africa was res nullius. Before the transformative constitution, bifurcation
was underpinned by race segregation, however, in the post-apartheid society the zones are
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P Langa (n 11) at 351
JS Saul and P Bond South Africa the Present as History: From Mrs Ples to Mandela & Marikana (2014)
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separated between white South Africans and black elites on one end, middle and lower-class
South Africans on the other.16
3.3 Post-Conquest Constitution
The fundamentally a post-conquest constitution is one that enables society to “stand
together”.17 This contravenes with the notion of a bifurcated society. A post-conquest
constitution advocates for a political dispensation that will lead to complete restoration of
sovereignty accompanied by a land redistribution, returning it to the conquered. In Ramose’s
view, the shift from parliamentary sovereignty to constitutional supremacy is equivalent to a
second conquest, one of consent. 18
4.
Conclusion
In conclusion, we can be certain that the South African Constitution is transformative, as it is
characterised by a continual process of adapting to the on-going changes in society whilst
shifting society further towards egalitarianism. As the description of a post-conquest
constitution has been given, it is evident that the South African constitution does not embody
a post-conquest constitution, this can be further emphasised by the prevailing bifurcation
within society. However, bifurcation can also be viewed as a challenge of the transformative
constitutionalism approach because it is a form of inequality, which has characterised South
African history as a product of conquest.
T Madlingozi Social Justice in a Time of Neo-Apartheid Constitutionalism: Critiquing the Anti-Black
Economy of Recognition, Incorporation and Distribution’ (2017) at 123
17
D Kleyn, and others Beginner’s Guide for Law Students (Juta 2018) at 205
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Kleyn (n 12) at 206
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Bibliography
Kleyn, D; Zitzke, E; Viljoen F & Madi, P Beginner’s Guide for Law Students (Juta 2018).
Langa, P ‘Transformative Constitutionalism’ (2006) 17 Stellenbosch Law Review 351.
Madlingozi, T ‘Social Justice in a Time of Neo-Apartheid Constitutionalism: Critiquing the
Anti-Black Economy of Recognition, Incorporation and Distribution’ (2017) 1 Stellenbosch
Law Review 123
Ramose, M “Justice and Restitution in African Political Thought” in Coetzee, PH & Roux,
APJ (eds) The African Philosophy Reader (Routledge 1998) 541
Saul, JS & Bond, P South Africa – The Present as History: From Mrs Ples to Mandela &
Marikana (James Currey 2014) 16-62.
Smith, A ‘Equality Constitutional Adjudication in South Africa’ (2014) 14 African Human
Rights Law Journal 609
Maxwell, JC The 21 Irrefutable Laws of Leadership (1998)
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