Authored By: Nompumelelo Vania Mabuza
University of Johannesburg
I. Introduction
The Constitution is one of the most important tools for addressing historical injustices. Three decades after the end of apartheid, the 1996 Constitution of the Republic of South Africa was designed not only to enforce democratic governance but also to correct the injustices created by apartheid that led to the creation of systemic inequalities, and to recreate society based on the foundations of dignity, equality, freedom, and social justice. The South African Constitution serves as a transformative tool aimed at achieving substantive social and economic change, which differs from traditional constitutions that primarily aim at limiting state power.
The concept of transformative constitutionalism, first articulated by Karl Klare, refers to a long-term constitutional project committed to transforming political and social institutions in a democratic and egalitarian direction.1 In the South African context, transformative constitutionalism serves as a tool or idea that provides a bridge away from the injustices of apartheid pre-1994 into a society based on democracy, social justice, equality, dignity, and freedom. The Constitution has become an instrument for social transformation rather than a mere legal framework for governance through judicial interpretation, socio-economic rights enforcement, and the development of customary law and common law.
This article argues that South African constitutional jurisprudence has been significantly reshaped by transformative constitutionalism through various constitutional mechanisms — including the protection of equality, dignity, and socio-economic rights — while acknowledging that the ongoing process remains constrained by structural inequality, weak governance, corruption, and limited socio-economic reform. The article first examines the definition of transformative constitutionalism and its purpose, analysing the role of constitutional provisions such as equality, dignity, socio-economic rights, and judicial interpretation in advancing constitutional change. It further evaluates the structural challenges constraining transformation and considers the broader limits of judicial intervention in achieving social justice.
II. The Constitutional Framework of Transformative Constitutionalism
A. Defining the concept of transformative constitutionalism
Justice Pius Langa does not propose a single fixed definition of transformative constitutionalism, but rather describes it as a tool or idea that serves as a means of transforming society — a bridge away from the past injustices of apartheid pre-1994 into a society based on democracy, social justice, equality, and freedom.2 This tool bridges the deeply divided legacy of racism and an unequal past into a new era where all South Africans enjoy fundamental rights such as the right to dignity and equality, which are crucial for ensuring that every individual is treated fairly and with respect.
Constitutional values were discussed in S v Makwanyane, where the Constitutional Court abolished the death penalty, acknowledging that the Constitution not only represents the aspirations of the new democratic order but draws upon the struggles of the past and should be interpreted through the values of dignity, equality, and ubuntu.3 The judgment confirmed that constitutional rights must be interpreted purposively to advance the broader transformative aims of the democratic order. The Constitution reflects this transformative purpose, highlighted in the preamble committing the nation to “heal the divisions of the past” and establish a society based on democratic values, social justice, and fundamental human rights. Similarly, section 1 identifies dignity, equality, and freedom as foundational constitutional values.4 These provisions demonstrate that the Constitution was intended not only to regulate public power but also to reconstruct society itself.
The Bill of Rights further reinforces this commitment by protecting both civil-political rights — which protect people from unlawful interference by the state — and socio-economic rights — which impose obligations on the state to take positive steps to provide people with the resources and services needed to live a decent, fulfilling, and minimally good life. Sections 9 and 10 guarantee equality and dignity, while sections 26 and 27 recognise rights relating to housing, healthcare, food, water, and social security. The inclusion of socio-economic rights distinguishes the South African Constitution from many constitutional systems that treat such rights as non-justiciable political aspirations. Consequently, transformative constitutionalism positions the Constitution as a living instrument capable of reshaping South African society over time.
III. Constitutional Rights Based on Transformation
A. Equality and Human Dignity
Pre-1994 South Africa was characterised by racial inequality, segregation, and discrimination. Post-1994, section 9 — the equality clause — prohibits unfair discrimination on grounds including race, gender, sex, religion, and sexual orientation.5 This is reinforced by section 10, the right to dignity, which provides that everyone has the right to dignity and the inherent right to have their dignity respected and protected.6 Both provisions serve as significant pillars of transformative constitutionalism, helping to remedy the injustices of the past.
The Constitutional Court affirmed this principle in Minister of Finance v Van Heerden.7 The case concerned a challenge to pension fund rules that required differential employer contributions, resulting in higher benefits for members from historically disadvantaged groups. This landmark case affirmed that restitutionary measures aimed at achieving equality under section 9 of the Constitution do not constitute unfair discrimination. The judgment recognised that formal equality alone would be insufficient to address deeply entrenched patterns of exclusion.
The courts have repeatedly emphasised that dignity informs the interpretation of all rights. In Dawood v Minister of Home Affairs, the applicants — permanent residents married to foreign nationals — challenged section 25(9) of the Aliens Control Act,8 which required South African spouses to apply for immigration permits from outside the country, effectively forcing them to leave their families pending the outcome. This regulation was found to violate the right to dignity by hindering the couple’s ability to live together, given that cohabitation is central to the institution of marriage. The Court held that immigration laws affecting spousal relationships must be interpreted consistently with dignity and family life.9 The judgment recognised that dignity encompasses the ability to establish and maintain meaningful human relationships.
Transformative constitutionalism has also significantly advanced LGBTQ+ rights and gender equality. In National Coalition for Gay and Lesbian Equality v Minister of Justice, the Constitutional Court invalidated laws criminalising same-sex relationships on the basis that they violated equality and dignity rights.10 Similarly, in Minister of Home Affairs v Fourie, the Court recognised same-sex marriage and held that excluding same-sex couples from marriage constituted unfair discrimination.11 These judgments demonstrate how transformative constitutionalism uses constitutional values to challenge exclusionary social norms and promote inclusion within democratic society.
However, despite these legal advances, substantive equality remains incomplete. Persistent racial inequality, gender-based violence, and economic exclusion continue to undermine constitutional commitments to dignity and equality. This tension illustrates one of the central difficulties of transformative constitutionalism: while constitutional jurisprudence has transformed legal norms, broader social and economic transformation has progressed far more slowly.
B. Socio-Economic Rights and Social Justice
The protection of socio-economic rights under South African constitutional law makes it exceptional. Transformative constitutionalism recognises that political freedom has limited value if society continues to lack access to the basic needs that ensure a meaningful and decent life — including housing, healthcare, education, food, and water. Consequently, the Constitution imposes positive obligations on the state to progressively realise these rights. Sections 26 (right to adequate housing) and 27 (right to access to healthcare) require the state to take reasonable legislative and other measures, within available resources, to realise these rights.12 The South African Constitution makes these rights legally enforceable rather than treating them as mere aspirations.
The Constitutional Court developed this jurisprudence significantly in Government of the Republic of South Africa v Grootboom.13 The applicants lived in dire conditions in an informal settlement and later moved onto privately owned land, where they faced eviction and had their shacks bulldozed, leaving them without shelter. They lodged a claim for the state to provide temporary basic shelter under section 26 of the Constitution. The Constitutional Court held that the government had an obligation to create, fund, and implement a plan to realise socio-economic rights. The Court also articulated the concept of progressive realisation, stating that while the state cannot provide housing to everyone immediately, it must take reasonable steps to fulfil these obligations. Importantly, the judgment serves as a cornerstone demonstrating that courts can enforce obligations on the government to give effect to socio-economic rights.
Similarly, Minister of Health v Treatment Action Campaign represented a major development in constitutional accountability.14 The government had limited the availability of nevirapine — a drug preventing HIV transmission from mother to child. The Court found this policy unreasonable and ordered the government to make nevirapine available at public health facilities. This judgment reaffirmed the state’s duty to take reasonable steps to realise socio-economic rights.
South Africa’s approach to socio-economic rights differs markedly from that of many constitutional democracies, where courts are hesitant to enforce these rights directly. In jurisdictions such as the United States, socio-economic rights are usually left to the political branches rather than the judiciary. By contrast, the South African Constitutional Court has embraced a model of constitutional accountability under which socio-economic deprivation can amount to a constitutional violation.
Nevertheless, socio-economic rights jurisprudence has faced criticism for its limited practical impact. Although courts have delivered progressive judgments, millions of South Africans continue to experience poverty, unemployment, inadequate housing, and poor service delivery. Consequently, critics argue that transformative constitutionalism has been more successful in transforming legal doctrine than in improving material socio-economic conditions.
IV. The Judiciary and Constitutional Transformation
A. The Development of Customary and Common Law
Transformative constitutionalism is not limited to constitutional interpretation alone; it also requires the development of all legal systems in accordance with constitutional values. Section 39(2) obliges courts to promote the spirit, purport, and objects of the Bill of Rights when developing common law and customary law.15 This ensures that constitutional values permeate all areas of law.
The principle in section 39(2) was applied in Bhe v Magistrate, Khayelitsha.16 This case concerned the customary law rule of male primogeniture, which excluded women and girl children from inheriting property. The customary law rule was declared unconstitutional as it unfairly discriminated against women and children on the basis of gender, violating their rights to equality and dignity. Importantly, the judgment recognised that customary law evolves as society changes to align with its values, demonstrating the living character of legal transformation.
Similarly, in Shilubana v Nwamitwa, the Constitutional Court overturned the application of male primogeniture, ruling that traditional communities have the power to develop customary law to align with constitutional values.17 The judgment affirmed that customary law must adapt to changing social conditions and constitutional commitments to equality and dignity.
These decisions demonstrate that transformative constitutionalism seeks not merely to invalidate discriminatory laws but to reshape the broader legal culture of South Africa. By requiring all legal systems to conform to constitutional values, the Constitution functions as an instrument of long-term legal and social transformation.
B. Constitutional Accountability and Judicial Interpretation
Judicial interpretation plays a significant role in transformative constitutionalism, encouraging the development of legal doctrines capable of producing substantial constitutional change. Section 39(1) requires courts to interpret the Bill of Rights in a manner that promotes an open and democratic society based on dignity, equality, and freedom.18 Constitutional interpretation is therefore inherently purposive and value-driven.
The judiciary ensures that all branches of government remain subject to constitutional values and accountability. Section 172 empowers courts to declare any law or conduct inconsistent with the Constitution invalid and to grant just and equitable remedies.19 This constitutional provision upholds the principle of constitutional supremacy.
This accountability function was illustrated in Doctors for Life International v Speaker of the National Assembly, where the Constitutional Court held that Parliament and provincial legislatures are constitutionally bound to facilitate meaningful public involvement in the law-making process, and that failure to do so renders legislation invalid.20 The judgment confirmed that constitutional accountability extends not only to the substance of legislation but also to the democratic procedures through which it is enacted.
The Constitutional Court’s willingness to hold Parliament and the executive accountable has become one of the defining features of South African constitutionalism. However, critics argue that excessive judicial intervention risks undermining democratic decision-making by transferring political questions to unelected judges. Questions relating to budgeting, land reform, and socio-economic policy often involve complex political considerations that courts may be institutionally ill-equipped to resolve.
Despite these criticisms, judicial enforcement remains essential within a constitutional democracy characterised by deep structural inequality. Without constitutional accountability, vulnerable groups would have significantly fewer mechanisms through which to challenge abuses of power, corruption, and systemic discrimination.
V. Challenges and Limits of Constitutional Transformation
Despite the significant achievements of transformative constitutionalism, South Africa continues to face severe structural challenges that undermine meaningful transformation. Unemployment, inequality, corruption, and weak governance demonstrate that constitutional rights alone cannot transform society without effective implementation and genuine political commitment.
South Africa remains one of the most economically unequal societies globally. Structural inequality continues to limit access to quality education, healthcare, employment opportunities, and land ownership for millions of South Africans. Legislative measures such as the Employment Equity Act 55 of 1998 and the Broad-Based Black Economic Empowerment Act 53 of 2003 seek to advance economic transformation, but these measures have been critiqued on the basis that they have disproportionately benefited a small political and economic elite while widespread poverty persists.
Corruption presents a further and serious impediment to transformation. The misappropriation of public resources has diverted funding away from essential services, while the capture of state institutions has eroded public trust in government’s capacity and integrity. Although the Constitutional Court has issued significant accountability judgments in response to these challenges, corruption and maladministration continue to obstruct the realisation of socio-economic rights at the level of everyday experience.
Land reform remains another unresolved tension within the transformative project. Prior to 1994, Black South Africans were dispossessed of their land through colonialism and apartheid legislation. Since 1994, the government has pursued a programme of land redistribution and restitution, but progress has been slow and contested. The ongoing debate regarding expropriation of land without compensation reflects a fundamental tension between the constitutional protection of property rights and the imperative to address historically rooted inequality.
The persistence of gender-based violence further illustrates the limits of legal transformation. Despite robust constitutional and legislative protections, women and children continue to face systemic violence and discrimination. This reality reinforces a crucial insight: changing the law, however progressive, does not automatically alter the social and cultural conditions from which inequality flows.
Some scholars question whether constitutional transformation can, by itself, address the structural economic inequalities that persist in South Africa. Tshepo Madlingozi contends that the post-apartheid constitutional settlement has not fundamentally altered the distribution of economic power, arguing that the patterns of accumulation and exclusion characteristic of the apartheid era remain substantially intact beneath the surface of democratic governance.21 If constitutional transformation does not translate into material improvements in people’s lives, its legitimacy as a tool of social justice comes into question.
Nevertheless, transformative constitutionalism remains an indispensable framework for the protection of rights and democratic accountability. The Constitution provides individuals and communities with enforceable mechanisms to challenge discrimination and abuses of power, and it articulates a normative vision of a society in which every person is treated with dignity and respect. Despite the significant work that remains, the Constitution continues to shape South Africa’s democratic development and to provide the foundation upon which deeper transformation can be built.
VI. Conclusion
Transformative constitutionalism has been central to South Africa’s post-apartheid democratic project. It has provided the legal and normative framework through which a society shaped by profound historical injustice has sought to reconstruct itself on the foundations of dignity, equality, freedom, and social justice. The Constitution is not merely a set of rules governing the exercise of public power; it is an instrument of deliberate social and legal transformation, designed to address the structural legacies of apartheid.
As this article has demonstrated, transformative constitutionalism has meaningfully reshaped South African constitutional jurisprudence. The Constitutional Court’s judgments in landmark cases such as S v Makwanyane, Government of the Republic of South Africa v Grootboom, Minister of Health v Treatment Action Campaign, and Bhe v Magistrate, Khayelitsha have used constitutional values to protect rights, enforce state obligations, and hold government accountable. These decisions have transformed legal doctrine and advanced equality, dignity, and socio-economic rights in ways that many constitutional systems have not.
Yet the article’s title poses a harder question: will transformative constitutionalism ever be sufficient to repair the damages of the past? The honest answer is that it is necessary, but not sufficient on its own. Constitutional transformation has proven far more effective in changing legal norms than in changing material conditions. Persistent poverty, unemployment, inequality, corruption, and gender-based violence reveal the gap between constitutional aspiration and lived reality. Courts can issue progressive judgments, but they cannot substitute for political will, administrative capacity, and economic reform.
This does not diminish the value of transformative constitutionalism — it clarifies its proper role. The Constitution is a tool, and its effectiveness depends on how it is used. Courts, Parliament, the executive, civil society, and ordinary South Africans all bear responsibility for giving it meaning beyond the courtroom. Transformation is not a destination to be reached but an ongoing project requiring sustained commitment across all institutions of governance and civil life.
The real measure of the Constitution’s success will not be found in the number of landmark judgments delivered, but in whether its values translate into improvements in the daily lives of ordinary South Africans. That work remains unfinished — but the constitutional framework, imperfect and constrained as its implementation has been, remains the most powerful instrument available for pursuing it.
Reference(S):
Constitution
Constitution of the Republic of South Africa, 1996.
Case Law
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC).
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC).
Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
Minister of Finance v Van Heerden 2004 (6) SA 121 (CC).
Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC).
Minister of Home Affairs v Fourie 2006 (1) SA 524 (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).
Shilubana v Nwamitwa 2009 (2) SA 66 (CC).
Legislation
Aliens Control Act 96 of 1991.
Broad-Based Black Economic Empowerment Act 53 of 2003.
Employment Equity Act 55 of 1998.
Journal Articles
Klare KE ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146.
Langa P ‘Transformative Constitutionalism’ (2006) 17 Stellenbosch Law Review 351.
Madlingozi T ‘Social Justice in a Time of Neo-Apartheid Constitutionalism’ (2017) 34 Acta Academica 123.
Footnote(S):
1 Karl E Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146, 150.
2 Pius Langa ‘Transformative Constitutionalism’ (2006) 17 Stellenbosch Law Review 351.
3 S v Makwanyane 1995 (3) SA 391 (CC).
4 Constitution of the Republic of South Africa, 1996, s 1.
5 Constitution of the Republic of South Africa, 1996, s 9.
6 Constitution of the Republic of South Africa, 1996, s 10.
7 Minister of Finance v Van Heerden 2004 (6) SA 121 (CC).
8 Aliens Control Act 96 of 1991, s 25(9).
9 Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC).
10 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).
11 Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC).
12 Constitution of the Republic of South Africa, 1996, ss 26–27.
13 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
14 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC).
15 Constitution of the Republic of South Africa, 1996, s 39(2).
16 Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC).
17 Shilubana v Nwamitwa 2009 (2) SA 66 (CC).
18 Constitution of the Republic of South Africa, 1996, s 39(1).
19 Constitution of the Republic of South Africa, 1996, s 172.
20 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
21 Tshepo Madlingozi ‘Social Justice in a Time of Neo-Apartheid Constitutionalism’ (2017) 34 Acta Academica 123.
