Authored By: Aphumelele Siyandiba
University of Johannesburg
Introduction
Modern-day South Africa is rooted in decolonizing the law of Apartheid in the interest of progressively realizing people’s rights. While there is no fixed definition, transformative constitutionalism means that the Constitution acts as a bridge and thus a tool to move from a society characterised by inequality and injustice to one vested in recognising everyone’s rights and maintaining social harmony.[1] Furthermore, in his article, Justice Langa defines transformative constitutionalism as a means of the Constitution to improve the realisation of rights by ensuring substantive equality.[2] This includes acknowledging that the implementation of the Constitution requires a more sensitive and intentional approach. We cannot just treat everyone uniformly, but we must remain cognizant of historical injustices and uplift previously disadvantaged groups.
Lastly, in S v Makwanyane,[3] The Constitutional Court stated that “What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting…future”. The Apartheid regime that the Constitution seeks to fully decolonize is an era where white people were superior to the broader African population, and they were not afforded any socio-economic rights, as is visible today. It involved a series of oppressive demeanours, such as the removal from their homes to a much more constricted setting. Through the adoption of the Constitution, there have been progressive measures to ensure the equal recognition of human rights, in accordance with section 9 of the Constitution.[4] which states that ‘everyone is equal before the law and has the right to equal protection and benefit of the law’. This article explores the effectiveness of transformative constitutionalism within the South African legal System. Precisely the change that it has brought to society, and where it has fallen short of its purpose.
The Legal Framework
In the South African legal system, a variety of statutes and bylaws have been developed along with the Constitution as means of fostering transformative constitutionalism within the broader society. This is evident in all the sources of law, precisely legislation, common law, and customary law, as the primary sources. Sources of law provide and regulate the basis for human conduct through their substantive material, which includes rules that ought to be followed and conduct that is subject to relevant sanctions.
A. Through a constitutional lens
Chapter 2 of the Constitution contains the Bill of Rights,[5] which affords everyone certain rights as well as rights specifically adopted for citizens. These rights include sections 26 and 27 of the Constitution, whereby section 26. Additionally, section 27 provides for the right to health care, food, water, and social security. Furthermore, the National Health Act was adopted in correspondence to section 27 to regulate the application and implementation of health-related matters.[6] The Broad-based Black Economic Empowerment Act was enacted to improve the economic standards of the black population in South Africa.[7] Ever since, there have been more appointments of black individuals to higher economic positions in the country. Many other statutes and regulations have been adopted with the common purpose of decolonizing the apartheid system, thus shifting towards a harmonious society.
Case Law Analysis
How the South African courts have contributed to transformative constitutionalism
The purpose of transformative constitutionalism is further emphasised in the interpretation of statutes by the judiciary. South African courts are very integral in the decolonization of the law. This is evident in Bhe v Magistrate of Khayelitsha,[8] whereby the court decided that male primogeniture is contrary to the constitutional values of equality and human dignity. Wherein, the court decided that customary law needs to be developed to reflect the changing values of society as well as to be consistent with the Constitution.
Additionally, the case of the Government of the Republic of South Africa v Grootboom (the Grootboom case) introduces another view of South Africa’s transformative nature.[9] During the Apartheid regime, the broader black population did not have the right to housing and had no existing authority that they could rely on. Post-apartheid, everyone is afforded the justiciable right to housing, which must be granted within the available resources of the state. Although in this case the relief sought was not granted, it is integral in interpretation for the acknowledgement of the right to housing in compliance with the constitutional duty of the state.
In the case of Khosa v Minister of Social Development,[10] the constitutionality of section 3(c) of the Social Assistance Act (SAA) was challenged to the extent that it excluded permanent residents from the welfare scheme of social security by limiting the grants to citizens.[11] Section 3 of the SAA unjustifiably limited the rights of the permanent residents, thus inconsistent with the rights to equality, human dignity, and freedom. The constitutional court held that the act should not be declared unconstitutional but rather ‘read in’ to be consistent with the Constitution. Permanent residents were then included in the enjoyment of welfare grants to protect their rights and to maintain legal certainty. This evidence illustrates the supremacy of the Constitution of the Republic and how all legislation should reflect the values entrenched in section one.
Moreover, in the case of S v Makwanyane,[12] the common law rule of a death penalty was abolished as it was inconsistent with section 10 of the interim Constitution to the extent that it infringed upon the right to life of the accused.[13] It was decided that the accused must be sentenced to life imprisonment as an alternative to the death penalty. This evidence suggests that the constitutional transformation of South Africa is not limited to the substantive material provided in legislation but exists in every branch of its legal system.
III. The different perspectives on transformative constitutionalism
The nature of constitutional triumphalism
In the South African legal system, the Constitution was adopted to provide a guideline for acceptable human conduct and to afford people certain rights. What we should consider is that, within the acknowledgement of the means to decolonize oppressive legal rules, “To what extent has transformative constitutionalism effectively contributed to the development of South Africa as a democratic society?” As acknowledged by Sibanda,[14] the Constitution can be credited to a certain extent for providing the legal basis for socio-economic rights and their justiciability. Furthermore, the Constitutional court has acknowledged the transformative nature of the Constitution by confirming various orders of invalidity to the extent that they are inconsistent with the Constitution. It is quite overt that, in terms of substantive material, the Constitution has done exceptionally well to recognize people’s rights.
Justice SM Mbenenge outlines the importance of constitutional transformation by stating that “The Constitution should be seen as a living document that guides not only the government and public institutions, but all those who come into contact with it. We are expected to shape and align our way of life to be consistent with the values embodied in the Constitution. All law and conduct should be consistent with it; our private lives should reflect the values enshrined therein. Wherever we set our foot, we should constantly remember to uphold those values.”[15] This abstract suggests that our actions as part of society and state bodies should be an embodiment of the transformative nature of the Constitution, to achieve the democratic standard that South Africa desires.
Advocate Tembeka Ngcukaitobi has addressed the allegations that the Constitution is being influenced by Western ideas and that it is colonial. He argues that the idea of the Bill of Rights had its origin in South Africa. Not only did the idea germinate from South African soil, but it also emanated from a group of black intellectuals and legal practitioners at the beginning of the twentieth century.[16] This assertion accounts for the existence of the Constitution and how it originated to the supreme document that it is today.
The nature of Constitutional Abolitionism
The Preponderant assertion that the Constitution is a document of the people and is for the people is quite prevalent amongst scholars. However, the Constitution is limited to providing the substantive basis of human rights; the practicality lies with the state. In their article, Brickhill and van Leeve argue that, regardless of what is written down, inequality is still visible in South Africa, and the economic standards reflect similar patterns to those of the apartheid regime. In his analysis of the City of Tshwane Metropolitan Municipality v Afriforum case, Joe Modiri states that “To my mind, the very event of this case attests to the “non- constitutive” character of the post-1994 South African Constitution – the fact that it did not reconstitute or bring about a truly new society and polity.”[17] In this argument, Modiri contends that the widespread public, political, and academic worship of the Constitution is problematic, given the lack of fundamental change in South Africa’s legal and political order. This is supported by Tshepo Madlingozi, who states that “post-1994 constitutional rearrangements did not lead us to a rupture with the social structure as many black people remain confined in a ‘zone of non-beings’.”[18]
Comparative Perspectives
India
The transformative nature of South Africa is also practiced in India, with the common purpose of upholding human rights. In their article, Sharma and Tyagi state that “In the eyes of constitution everyone is equal and there is no difference between majority section and minority section of society.” They further asseverate that “From the reading of various articles and preamble of Indian constitution it can be said that constitution has been drafted in such a manner that meaning of it articles can be molded as per the needs of society and changing circumstances of country.”[19]
The United States
Furthermore, in the United States (US), the judiciary has been integral to the development of its law. This is evident in the judgment of the case of Brown v Board of Education,[20] where the US Apex Court held that the existing racial segregation laws were unconstitutional to the extent that it encourages separation through the principle “SEPARATE BUT EQUAL TREATMENT.” Additionally, they state that the US Supreme Court has been crucial in the development of American law, through “its efforts to remove deep-rooted historical inequalities existed in US society”.[21]
Recommendations
In the South African context, most of the transformation is through the adoption of legislation rather than implementation. Various statutes and bylaws have been adopted with the purpose of recognizing human rights to their full potential; however, certain problems have gotten worse. The poverty in the local areas of South Africa (SA) constantly expands due to low employment rates, which is contrary to what the Constitution ascertains. To remedy the lack of implementation, South Africa can improve the government structures by eliminating corrupt bodies from the state. Many of the problems are caused by the dishonesty of government officials through the exploitation of the country’s resources. By developing a state consisting of improved transparency and accountability, the economy of South Africa would grow immensely. Lastly, there should be serious and nonderogatory sanctions for unethical conduct, to enhance the integrity of state bodies.
Conclusion
Transformative constitutionalism (TC) is an integral remedy to decolonize the law and improve the equality standards existing in society today. There are various opinions regarding the effectiveness of TC and the impact it has made on the current standards of living in South Africa. Some acknowledge that the Constitution is an excellent document that has changed the economic structure of SA and has improved societal standards. While others argue that it has brought minimal change, and the prospects of Apartheid are still visible today.
This article has argued that to effectively decolonize the law, SA must decolonize the governing structures responsible for such measures. The varying perspectives of triumph and abolition are important when analysing the legal position of South Africa. The comparative perspectives are crucial in tracking the progress South Africa has made thus far. Although there seem to be similar patterns of transformation, South Africa remains far behind in terms of what is visible rather than written down. SA can obtain the desired position of being an economic giant through the honest and efficient use of government resources.
Reference(S):
Cases
S v Makwanyane [1995] BCLR 665 (CC)
Bhe and Others v Magistrate, Khayelitsha, and Others [2000] SA 580 (CC)
Brown v Board of Education [1954] 347 US 483
Government of the Republic of South Africa and Others v Grootboom and Others [2001] SA 46 (CC), [2000] BCLR 1169 (CC)
Khosa and Others v Minister of Social Development and Others: Mahlaule and Others [2004] SA 505 (CC)
Legislation
The Constitution of the Republic of South Africa 1996
The National Health Act 2003 s73
Broad-based Black Economic Empowerment Act 2003
Social Assistance 1992 s 3(c)
Secondary Sources
Justice Pius Langa, ‘TRANSFORMATIVE CONSTITUTIONALISM’ 2006 17 Stellenbosch Law Review 351,352
Sanele Sibanda, ‘Not purpose-made! Transformative constitutionalism, post-independence constitutionalism and the struggle to eradicate poverty.’ 2011 Stellenbosch Law Review 482, 483
Jason Brickhill and Yana van Leeve, ‘Transformative constitutionalism- Guiding light or empty slogan?’ 2015 Acta Juridica 141
Justice SM Mbenenge, ‘Transformative Constitutionalism: A Judicial Perspective from the Eastern Cape’ 2018 Speculum Juris 1, 6
Joel Modiri, ‘Race, history, irresolution: Reflections on City of Tshwane Metropolitan Municipality v Afriforum and the limits of “post”-apartheid constitutionalism’ 2019 DE JURE 7
Tshepo Madlingozi, ‘Social Justice in a Time of Neo-Apartheid Constitutionalism: Critiquing the Anti-Black Economy of Recognition, Incorporation and Distribution’ 2017 Stellenbosch Law Review 123
Puneet Sharma and Tarun Tyagi, ‘Transformative Constitutionalism: Comparative Study of United States, India, and South Africa.’ 2023 International Journal of law Management & Humanities 6
[1] Constitution of the Republic of South Africa, 1996
[2] P Langa, ‘TRANSFORMATIVE CONSTITUTIONALISM’ 17 Stellenbosch Law Review 351, 352.
[3] S v makwanyane [1995] BCLR 665 (CC).
[4] Constitution of the Republic of South Africa, s9.
[5] Ibid s26 and s27.
[6] National Health Act 2003 s73.
[7] Broad-based Black Economic Empowerment Act 2003.
[8] Bhe and Others v Magistrate, Khayelitsha and Others [2000] SA 580 (CC).
[9] Government of the Republic of South Africa and Others v Grootboom and Others [2001] SA 46 (CC) [2000] BCLR 1169 (CC).
[10] Khosa and Others v Minister of Social Development and Others: Mahlaule and Others [2004] SA 505 (CC).
[11] Social Assistance Act 2003 s3(c).
[12] Makwanyane (n4).
[13] Interim Constitution of the Republic of South Africa 1996 s10.
[14] S, Sibanda, ‘Not Purpose-made! transformative constitutionalism, post-independence constitutionalism, and the struggle to eradicate poverty’ 2011 Stellenbosch Law Review 482, 483.
[15] SM, Mbenenge ‘Transformative constitutionalism: A Judicial Perspective from the Eastern Cape 2018 Speculum Juris 1, 6.
[16] Adv. T, Ngcukaitobi, ‘Critiques on Constitutionalism 30 years On’ (UJ/MISTRA Annual Public Lecture, University of Johannesburg, 7 August 2024).
[17] J, Modiri, ‘Race, history, irresolution: Reflections on City of Tshwane Metropolitan Municipality v Afriforum and the limits of “post”-apartheid constitutionalism’ 2019 DE JURE 7.
[18] T, Madlingozi, ‘Social Justice in a Time of Neo-Apartheid constitutionalism: Critiquing the Anti-Black Economy of Recognition, Incorporation and Distribution’ Stellenbosch Law Review 123.
[19] P, Sharma and T, Tyagi, ‘Transformative Constitutionalism: Comparative Study between United States, India and South Africa’ 2023 International Journal of Law Management and Humanities 6.
[20] Brown v Board of Education [1954] 347 US 483.
[21] P, Sharma and T, Tyagi, ‘Transformative Constitutionalism: Comparative Study between United States, India and South Africa’ 2023 International Journal of Law Management and Humanities 6.
