Bridging the gap between people and the law: Transformative constitutionalism and the right to constitutional literacy

• Jurisdiction: South Africa
• Pages: 189-212
• Author: Tim Fish Hodgson
• Published date: 15 August 2019
• Date: 15 August 2019

Bridging the gap between people and the

law: Transformative constitutionalism

and the right to constitutional literacy*

TIM FISH HODGSON

†

Only 46 per cent of people in South Africa have heard of the existence of

either the Bill of Rights or the Constitution. Only 10 per cent of people have

ever read the Constitution or had it read to them. For transformative

constitutionalism to be meaningful it must take into account this context and

acknowledge that the success of the constitutional project requires the

creation of a societal culture shaped by law and a legal culture shaped by

society. This paper builds on the work of Chief Justice Langa and others who

have written on transformative constitutionalism. It frames the philosophy of

transformative constitutionalism as people-focused and acknowledges the

need to bridge the gap between people and the law in South Africa. It discusses

the historical and systemic reasons for this gap and argues that knowledge and

understanding of rights – constitutional literacy – is itself a right. This

argument is grounded in the state’s duty to promote the rights in the Bill of

Rights and the rights to access to courts, dignity and basic education.

Empowered by full knowledge of our rights, we have the right to make the

many decisions of which our lives are composed, participate fully, meaning-

fully and effectively in society,and make decisions about when and whether to

approach courts to protect our rights.

I INTRODUCTION

The growing body of literature on transformative constitutionalism has

fostered a much needed debate on the role of constitutionalism in

transformation. The investigation of this crucial concept has, however,

almost exclusively comprised of inward-focused ref‌lection by members of

the legal profession about the need for transformation of the substance of

the law, judicial philosophy, legal systems, the legal academy and the legal

* I am indebted to Ashley Pillay, David Bilchitz and Mark Heywood for their incisive

substantive comments, good humour and strong encouragement. Thanks also to Anthony Fish

Hodgson and Roslyn Fish for assistance with proofreading. My thoughts on this topic have

been strongly inf‌luenced and inspired by hundreds of learners who attended workshops at the

Constitutional Court by the Constitution Hill Education project (2012–13), community

members in Xhora River Mouth area (2012–14), thousands of learners who attended LAWCO

workshops (2008–9), members of the Know Your Constitution campaign, Meghan Finn,

Metumo Shilongo, Brett Pollack, Jon Parsonage, Mateenah Hunter, Amanda Mfuphi and my

colleagues Muhammad Zakaria Suleman, Mluleki Marongo, Catherine Thorpe, Kagum

Ahmed and Isabeau Steytler.

†

Researcher, SECTION27; BBusSci LLB (CapeTown) LLM (Michigan).

189

2015 Acta Juridica 189

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profession. This lawyer-led and law(yer)-centric approach has resulted in

an incomplete vision of what transforming legal culture and creating a

culture of human rights and constitutionalism requires. I argue that

transformative constitutionalism requires bridging the gap between

people, the majority of whom are not involved in and do not have easy

access to the legal profession, and the law. For transformative constitu-

tionalism to be meaningful it must be ensured that the law is viewed not

only as a lawyer’s tool for the attainment of justice and substantive

equality, but also as a vehicle and language of power for people in their

daily lives, whether inside or outside the courts, with or without any

contact with the legal profession. This is impossible if people do not know

their rights and do not understand the language and structures of power

the Constitution sets up to ensure that they are respected, protected,

promoted and fulf‌illed. People cannot possibly enjoy and exercise their

rights in court, or anywhere else, if they do not know of and understand

them and the vehicles for their enforcement.

1

Although valiant efforts were made to elicit submissions on the content

of the Constitution during the drafting process and to distribute the

Constitution immediately upon its adoption, attempts to popularise and

explain its content have waned since its adoption in 1996.

2

With little

consistent or comprehensive intervention, the Constitutional Court

noted as recently as November 2012 that South Africa is home to ‘a large

number of people who have had scant educational opportunities and who

may not be aware of their rights’.

3

Indeed statements of regret about the

dearth of knowledge about constitutional rights have been a constant

refrain of the Constitutional Court ever since its inception.

4

The court’s core suspicions have been conf‌irmed by various surveys. In

1998 a survey commissioned by the Human Sciences Research Council

concluded that only 30 per cent of respondents were aware of the Bill of

Rights.

5

A 2000 survey commissioned by the National Institute for Public

Interest Law and Research revealed that 36 per cent of respondents had

never heard of the Bill of Rights, while a further 20 per cent had heard of it

but did not know what its purpose was. Finally, a 2003 survey funded by

the National Research Foundation also reported that 33.2 per cent of

1

JC Mubangizi ‘Know your rights: Exploring the connections between human rights and

poverty reduction with specif‌ic reference to South Africa’(2005) 21 SAJHR 32 at 40; A Hassim

& M Heywood ‘Remedying the maladies of ‘‘lesser men or women’’: The personal, political

and constitutional imperatives for improved access to justice’ (2008) 24 SAJHR 263 at 264 and

278–9.

2

L Segal & S Cort One Law,One Nation: The Making of the South African Constitution (2011).

3

Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others 2013 (3) BCLR 251 (CC) para

39, citing Kruger v President of the Republic of SouthAfrica and Others 2009 (1) SA 417 (CC) para 23.

4

Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) para 14; Moise v Greater Germiston

TransitionalLocal Council 2001 (4) SA 491 (CC) para 13; Kruger (n 3) para 23.

5

Mubangizi (n 1) 41.

190 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA

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