THE CONSTITUTION: A SHIELD OR WEAPON

Abstract:

“Constitutional democracy is widely seen as the highest form of ordered liberty and the strongest safeguard of human dignity. However, worldwide, particularly in South Africa, evidence indicates that constitutions—no matter how nobly worded—often serve as tools for elite preservation, judicial delay, and political spectacle rather than as active protections of real freedom. This article explores whether South Africa’s Constitution of 1996 mainly acts as a shield for the vulnerable or whether its mechanisms — such as justiciable socio-economic rights, counter-majoritarian judicial review, and transformative rhetoric — have been used to block, delay, and ultimately deny the substantive changes its creators aimed for. Drawing on constitutional theory, case law, and political context, it argues that the Constitution functions both as a shield and a weapon, and that resolving this paradox depends on political will, institutional integrity, and the commitment of all branches of government to uphold the constitutional promise in practice, not merely in words.” –  Sapientia: Journal of Philosophy, Volume 18 (June 2023)

1  Introduction

Few documents in the modern legal mindset carry as much symbolic and normative significance as a national constitution. Celebrated as the supreme law of the land, the Constitution of the Republic of South Africa, 1996, begins with a Preamble that promises to “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.” It arose from a remarkable negotiated transition, a compact between oppressor and oppressed, between the architects of apartheid and those who bore its cruellest burden. On its surface, it is a document of extraordinary aspiration.

And yet, three decades after its adoption, millions of South Africans remain without adequate housing, clean water, quality education, and economic opportunity. The constitutional promise of dignity stands in grotesque contrast to the daily reality of unemployment exceeding thirty percent, of shack settlements without sanitation, of public hospitals without medicines. The question this article poses is not merely rhetorical: has the Constitution served as a shield against the continuing violence of poverty and exclusion, or has it — whether by design, by misuse, or by institutional failure — functioned as a weapon against the very transformation it claims to pursue?

The question demands intellectual honesty. The Constitution has, in important respects, genuinely shielded South Africans: courts have struck down the death penalty, extended rights to the LGBTQ+ community, compelled the state to provide antiretroviral treatment, and held powerful politicians to account. These achievements are real. But so is the counternarrative — that the Constitution’s institutions have been captured, its socio-economic rights rendered largely aspirational by the doctrine of progressive realisation, its property clause weaponised to protect accumulated wealth, and its complexity exploited by those with resources to delay justice indefinitely.

This article proceeds as follows. Part 2 examines the theoretical foundations of transformative constitutionalism. Part 3 interrogates the promise and performance of socio-economic rights. Part 4 considers the counter-majoritarian dilemma — the tension between judicial supremacy and democratic accountability. Part 5 analyses how constitutional machinery has been weaponised by both the state and private actors. Part 6 offers a nuanced conclusion.

2 TRANSFORMATIVE Constitutionalism: Promise and Theory

The concept of transformative constitutionalism, most influentially articulated by Karl Klare, holds that the South African Constitution is not merely a negative charter of liberties restraining state power, but an affirmative mandate for structural social change. Unlike classical liberal constitutionalism, which prizes stability, property rights, and procedural fairness, transformative constitutionalism demands that the legal order actively dismantle inherited hierarchies of race, class, and gender.

This is a seductive and powerful idea. The Constitution’s Bill of Rights is among the most progressive in the world, housing not only civil and political rights but justiciable socio-economic rights to housing, healthcare, food, water, education, and social security. The Constitutional Court has, at its finest, embraced this mandate: in Grootboom, the Court held that the state bore a constitutional obligation to provide relief to those in desperate need, and in Treatment Action Campaign, it ordered the government to roll out a programme to prevent mother-to-child transmission of HIV.

But Klare himself cautioned that transformative constitutionalism is not self-executing. It requires judges, lawyers, and politicians imbued with a particular kind of legal imagination — one oriented toward redistribution rather than preservation. The uncomfortable truth is that the legal profession in South Africa, trained in formalist traditions and drawn disproportionately from privileged social strata, has not always risen to this challenge. The gap between the Constitution’s transformative aspiration and the conservatism of its everyday application is one of the most persistent features of post-apartheid law.

Woolman and Bishop observe that the Constitution was designed to be both enabling and constraining — it empowers state action in pursuit of transformation while simultaneously constraining the abuse of state power. This dual character is precisely what makes it susceptible to both interpretations advanced in this article. The same document that gave the Constitutional Court authority to order the government to provide housing relief in Grootboom has also been used to protect property rights that cement the economic privileges of a post-apartheid elite.

3  Socio-Economic Rights: Shield That Bends

The inclusion of justiciable socio-economic rights in the Constitution was a deliberate political choice and a genuine ideological achievement. For the first time in South African legal history, the right of every person to have access to adequate housing, to healthcare, to food and water, and to social assistance, was enforceable in a court of law. These provisions represented, in the words of De Vos and Freedman, a rejection of the classical liberal distinction between “first generation” civil rights and “second generation” welfare entitlements.

In practice, however, the shield has proven fragile. The Constitutional Court’s doctrine of “progressive realisation” — derived from international human rights law — holds that the state must take reasonable measures within available resources to progressively achieve the full realisation of socio-economic rights. While this formulation has some merit as an acknowledgment of fiscal reality, its application has been criticised for providing a judicial escape valve that allows governments to defer compliance indefinitely. As Sunstein has observed, the reasonableness standard invites courts to ask not whether people are housed or fed, but whether the government’s programme is rational — a far more modest inquiry.

The case of Mazibuko v City of Johannesburg illustrates the paradox acutely. The applicants challenged the City’s free basic water policy, arguing that six kilolitres per household per month was constitutionally insufficient. The Constitutional Court declined to prescribe the precise minimum content of the right to water, deferring instead to the executive’s discretion. The judgment was legally defensible but profoundly unsatisfying: the Constitution’s promise of water was upheld as a guarantee of process rather than a guarantee of thirst quenched. Poor communities received a sophisticated doctrinal framework but no more water.

Similarly, around housing rights, the post-Grootboom jurisprudence has been characterised by incremental remedies and modest orders. The Joe Slovo casepermitted the eviction of thousands of informal settlement residents subject to an engagement process — a constitutionally compliant outcome that nonetheless left vulnerable people displaced. Tissington has argued persuasively that the Constitution’s housing jurisprudence has, in effect, managed landlessness rather than ended it.

None of this is to say that socio-economic rights litigation has been futile. The Treatment Action Campaign litigation saved lives measurable in the hundreds of thousands. The Centre for Child Law cases have advanced access to education for marginalised children. But the general pattern is one of constitutionally respectable but substantively inadequate remediation — a shield that deflects the worst assaults on dignity while permitting the underlying structural conditions of poverty and inequality to persist largely intact.

4  The Counter-Majoritarian Dilemma: Democracy’s Double-Edged Sword

The relationship between constitutionalism and democracy is inherently tense. A constitution that is truly supreme — that can override the choices of democratically elected legislatures — necessarily constrains the majority will. In South Africa, this counter-majoritarian character of constitutional review has been celebrated as protection against tyranny and against the excesses of legislative capture, but it has also attracted criticism as a mechanism by which unelected judges impose their own values on a democratic polity.

Ran Hirschl’s comparative study of constitutional courts worldwide concludes that “juristocracy” — the transfer of policymaking authority from elected legislatures to courts — has frequently served the interests of threatened elites rather than the dispossessed. The thesis is that constitutional entrenchment of rights, particularly property and economic rights, serves as an insurance mechanism for groups who fear losing political power. In the South African context, this insight is uncomfortable but not easily dismissed: the negotiated transition produced a Constitution that guaranteed equality and dignity, but also a property clause and an independent central bank whose institutional design constrained the redistributive ambitions of any future government.

The counter-majoritarian dilemma has another dimension, however. South Africa’s democracy has itself been deeply imperfect. The dominance of the African National Congress for three decades — and the consequent erosion of parliamentary oversight, accountability, and the separation of powers — has meant that the Constitutional Court has often been the last line of defence against executive overreach. The EFF v Speaker case, in which the Court declared President Zuma’s failure to remediate his Nkandla homestead a violation of the Constitution, and the subsequent Democratic Alliance v ANC jurisprudenceon accountability, are genuine examples of the Constitution serving as a shield for democratic governance against executive impunity.

Yet the same Constitutional Court that delivered those judgments has been slow to develop a robust socio-economic rights jurisprudence with real remedial bite. It has deferred to executive discretion on matters of resource allocation, accepted broad legislative frameworks as sufficient compliance, and declined to specify minimum core entitlements. The pattern suggests an institution more comfortable challenging political misconduct — where the issues are legally neat — than confronting structural poverty, where the solutions require political choices that courts are constitutionally reluctant to make.

5  The Constitution as Weapon: Capture, Delay, and Elite Protection

5 1  State Capture and the Weaponisation of Process

The nine years of state capture under President Jacob Zuma demonstrated with appalling clarity that constitutional machinery can be weaponised by those within the state itself. The Constitution’s elaborate procedural protections — due process requirements, the right to challenge administrative action, the right to legal representation — were systematically exploited to delay accountability, frustrate investigations, and exhaust public resources.

In S v Zuma, the former President’s legal team mounted years of constitutional challenges to his criminal prosecution — challenges that, whatever their individual merits, had the cumulative effect of delaying his trial by over a decade. The constitutional right to a fair trial, which exists to protect the innocent from state overreach, was deployed as a strategic instrument of delay by a man who had presided over wholesale looting of the public fiscus. This is the Constitution as weapon at its most brazen: its protections calibrated not to shield the vulnerable, but to insulate the powerful from consequence.

Corruption Watchhas documented how constitutional requirements of procedural fairness have been manipulated in procurement litigation, in appointments to public office, and in regulatory processes to create delay sufficient to render accountability meaningless. The Constitution’s insistence on lawful, reasonable, and procedurally fair administrative action — a genuine achievement in principle — has in practice provided a playbook for those who wish to paralyse government in their own interests.

5 2  Property Rights and the Limits of Transformation

Section 25 of the Constitution — the property clause — is arguably the most contested provision in the document. It guarantees the right to property while simultaneously permitting expropriation and mandating land reform. Its first paragraph reads as a protection of existing ownership; its later provisions mandate restitution, redistribution, and reform. Agri SA and FNB v SARSillustrate how courts have navigated this tension — with considerable deference to existing property rights and considerable caution about the redistributive mandate.

Tissington argues that section 25 has functioned primarily as a shield for existing property ownership. The constitutional requirement of just and equitable compensation has, in land reform litigation, been interpreted in ways that make expropriation prohibitively expensive for the state, effectively subordinating the transformative mandate of land reform to the interests of large-scale landowners. The land question — arguably the central question of South African political economy — remains unresolved thirty years after liberation, and the Constitution’s ambivalent property clause bears significant responsibility for this failure.

The irony is structural: the very document that declares the democratic right of all to have their dignity respected has also entrenched an economic order in which the ownership of productive assets remains overwhelmingly concentrated along racial lines inherited from apartheid. The Constitution simultaneously condemns that inheritance and protects the legal forms through which it persists.

5 3  Access to Justice as Constitutional Fiction

A constitution is only as powerful as the ability of rights-bearers to enforce it. South Africa’s legal system imposes enormous financial and procedural barriers to constitutional litigation. The Constitutional Court is an apex institution located in Johannesburg, operating in a complex legal environment that requires specialist counsel, protracted interlocutory proceedings, and considerable financial resources. For the overwhelming majority of South Africans — those for whom the Constitution’s socio-economic rights are most urgently needed — the machinery of constitutional enforcement is practically inaccessible.

Legal aid is underfunded, public interest litigation organisations are under-resourced, and the spatial and linguistic dimensions of constitutional litigation further disadvantage rural and marginalised communities. The Constitution proclaims everyone’s right to have access to courts in section 34 — but access to constitutional courts, in practice, is a privilege of those with the financial means or the institutional support to litigate. The shield is issued to all; only some have the strength to lift it.

Botha observes that the gap between constitutional text and social reality is not merely incidental to the legal system but partly constitutive of it: law legitimates existing arrangements even as it appears to challenge them. The Constitution’s complexity — its elaborate doctrinal architecture, its proportionality analysis, its multi-factor tests — creates an interpretive space accessible primarily to legal professionals, ensuring that the dominant voices in constitutional discourse are those of trained lawyers rather than those who live at the margins of constitutional promises.

6  Conclusion: Shield and Weapon — The Paradox Resolved

The question posed by this article admits of no simple answer. The Constitution of the Republic of South Africa is not straightforwardly a shield, nor is it straightforwardly a weapon. It is both, simultaneously, and the predominance of one character over the other depends on who wields it, in what institutional context, and with what political will.

When the Constitutional Court ordered the government to provide antiretroviral treatment to pregnant women, the Constitution was unambiguously a shield — a legal instrument saving lives that political neglect had placed in mortal danger. When Jacob Zuma’s legal team exploited procedural constitutional rights to defer prosecution for a decade, the Constitution was equally unambiguously a weapon — its protections instrumentalised to insulate the powerful from accountability. These two moments of the same document, in the same constitutional order, illustrate the fundamental paradox.

The resolution of this paradox cannot be purely juridical. Constitutions do not enforce themselves. The Investigating Directorate v Hyundai Court noted that the Constitution must be interpreted purposively, in a manner that gives effect to its underlying values. But purposive interpretation requires interpreters committed to those values in substance, not merely in form. When judges defer excessively to executive discretion on socio-economic rights, when politicians exploit constitutional process to frustrate accountability, when legal barriers price the poor out of constitutional courts, the Constitution’s shield function is disabled from within.

Transformative constitutionalism, as Klare envisioned it, requires more than a progressive document: it requires progressive institutions. The Constitutional Court at its best — in Makwanyane, in TAC, in EFF v Speaker — has demonstrated what genuine transformative adjudication looks like. But the Court has also, in Mazibuko and elsewhere, retreated to a cautious institutionalism that mistakes procedural compliance for substantive justice.

The deeper danger is ideological legitimation. A constitution that proclaims equality and dignity while presiding over a society of extreme and racialised inequality risks functioning as what Klarman calls a “legitimating instrument” — a document whose very nobility of language renders the failures it presides over more palatable and less politically urgent. South Africans are repeatedly told that their rights are protected, their dignity guaranteed, their futures secured — by a document whose enforcement has not prevented the country from becoming one of the most unequal societies on earth.

The answer, ultimately, is not to abandon the Constitution. Its abolition or dilution would remove even the imperfect protections it offers and would foreclose the genuine transformative possibilities it contains. The answer is to demand that the Constitution’s institutions — the courts, the legislature, the executive, and civil society — treat the document not as a ceremonial gesture toward justice but as a binding commitment to it. The shield must be maintained sharp by those who wield it in good faith, and wrested from the hands of those who would reforge it into a weapon.

South Africa’s Constitution remains, three decades on, an unfinished project. Whether it ultimately proves to be the shield its drafters intended, or the weapon its detractors fear, will be determined not in its text — which admits of both readings — but in the daily choices of judges, politicians, lawyers, and citizens who must decide what kind of constitutional order they are willing to fight for.

Bibliography

Cases

Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC)

Centre for Child Law v Hoërskool Fochville 2016 (2) SA 121 (SCA)

Corruption Watch NPC v President of the Republic of South Africa 2018 (10) BCLR 1179 (CC)

Democratic Alliance v African National Congress 2015 (2) SA 232 (CC)

Economic Freedom Fighters v Speaker of the National Assembly (No 1) 2016 (3) SA 580 (CC)

First National Bank of SA Ltd t/a Wesbank v Commissioner, SARS 2002 (4) SA 768 (CC)

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)

Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2001 (1) SA 545 (CC)

Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC)

Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC)

Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC)

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)

S v Makwanyane 1995 (3) SA 391 (CC)

S v Zuma 2021 (5) SA 1 (CC)

Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC)

Legislation

Constitution of the Republic of South Africa, 1996

Books

De Vos P and Freedman W (eds) South African Constitutional Law in Context (2014) Oxford University Press Cape Town

Hirschl R Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004) Harvard University Press Cambridge

Sunstein C Designing Democracy: What Constitutions Do (2001) Oxford University Press New York

Woolman S and Bishop M (eds) Constitutional Law of South Africa 2 ed (2002) Juta Cape Town

Journal Articles

Botha H “Law, Politics, and the Constitutional State” (2010) 26 South African Journal on Human Rights 442

Klarman M “How Great Were the ‘Great’ Marshall Court Decisions?” (2001) 87 Virginia Law Review 1111

Klare K “Legal Culture and Transformative Constitutionalism” (1998) 14 South African Journal on Human Rights 146

Tissington M “Transformative Constitutionalism and Property Rights in South Africa” (2016) 17 ESR Review 12