Transformative constitutionalism – Guiding light or empty slogan?

• Jurisdiction: South Africa
• Author: Jason Brickhill
• Pages: 141-171
• Citation: 2015 Acta Juridica 141
• Date: 15 August 2019
• Published date: 15 August 2019

Transformative constitutionalism –

Guiding light or empty slogan?*

JASON BRICKHILL

†

AND YANA VAN LEEVE

‡

We engage afresh with the notion of transformative constitutionalism as

envisaged by Justice Langa. We respond to the charge that it is an empty

slogan, which can mean anything and therefore means nothing. It includes at

least two components: economic change and change in legal culture. The

economic change must include, at the very least, the entitlement to the

material conditions necessary for a dignif‌ied life, as represented in the Bill of

Rights. We then consider progress, since Justice Langa spoke in 2006, against

f‌ive challenges that he recognised – both at the level of the jurisprudence

during that period and political developments within the legal profession and

more broadly. Recent developments suggest that, despite progress, we have

been diverted from the path of transformative constitutionalism that Justice

Langa proposed, both in relation to economic change and legal culture.

I INTRODUCTION

From Queen Mercy’s village, near Matatiele in the Eastern Cape, a group

of learners sent a letter to Cape Town explaining the desperate circum-

stances under which they attend school every day. This school, though

not unique in comparison with the circumstances of others in rural

provinces, was characterised by years of neglect, high rates of absenteeism

among teachers and learners alike, a lack of basic resources and abuse of

property and person. In describing these conditions, the learners wrote

and later spoke of their aspirations to complete school and lead productive

lives, and of the destructive effect that their learning environment was

having on their ability to fulf‌il these ambitions. Their demand was

underscored by their consciousness of the rights guaranteed to them by

South Africa’s foundational legal instrument; in particular the rights to

equality, dignity, freedom, basic education and accountable, responsive

* This article is based on a paper presented at a conference hosted at the University of Cape

Town in January 2014 in honour of the late former Chief Justice, Pius Langa. We extend our

thanks to the organisers of the conference, Michael Bishop and Alistair Price, and also to all the

other attendees whose papers and contributions during the conference inf‌luenced our approach

in this paper. The two anonymous reviewers provided thorough and challenging reviews. We

also thank Tess Peacock, Michael Mbikiwa, Max Taylor and Avani Singh for comments on

drafts of the article.All errors remain ours.

†

Director, Constitutional Litigation Unit, Legal Resources Centre; Honorary Research

Associate, University of Cape Town; Member of the Johannesburg Bar; LLB (Cape Town)

MSt (Oxon).

‡

Law Clerk, Constitutional Court of South Africa; Deputy National Coordinator of Equal

Education;Attorney of the High Court of South Africa; BSocSci (UCT) LLB (UWC).

141

2015 Acta Juridica 141

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government. Demands such as those of the learners in Matatiele, which

later manifested in a legal challenge against the Minister of Basic Educa-

tion,

1

are not uncommon in South Africa. Rather, their case represents

but one expression of a much wider call for social, economic and political

progress amongst those who, twenty years into democracy, have yet to see

the most basic promises of our Constitution

2

fulf‌illed. In short, their

demands are for something more than just ‘good governance’ under the

law: they are for transformative constitutionalism.

There have been a number of academic and judicial writings exploring

the notion of ‘transformative constitutionalism’ in democratic South

Africa.

3

In a seminal lecture delivered at the University of Stellenbosch in

2006, Justice Pius Langa probed the meaning of ‘transformative constitu-

tionalism’.

4

Accepting that there is no single def‌inition, Justice Langa

proposed that, at the very least, transformative constitutionalism includes

the pursuit of some form of economic transformation and a change in

legal culture. He also argued that transformation is necessarily an ongoing

process, and that there is value in the process of change itself. Justice Langa

went on to recognise f‌ive factors that could promote or retard the

achievement of transformative constitutionalism. These f‌ive factors are

access to justice, legal education, legal culture, the separation of powers

and reconciliation. Viewed pessimistically, these factors are challenges or

obstacles; more optimistically, they are key enabling conditions which,

intersecting with political and other factors, may have a progressive effect

on society.

In this contribution, we seek to engage afresh with the notion of

transformative constitutionalism insofar as it includes economic and legal

culture transformation as envisaged by Justice Langa. We respond to the

charge that ‘transformative constitutionalism’ is an empty slogan which can

mean anything and therefore means nothing. We argue that the economic

change that forms part of transformative constitutionalism must include,

1

The learners from Matatiele in the Eastern Cape subsequently instituted legal proceedings

against the state in Palesa Faith Manyoloke and Two Others v District Director:Maluti Eastern Cape

Department of Education and Seven Others (Case No 603/2012).

2

Constitution of the Republic of SouthAfrica, 1996.

3

See for example K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14

SAJHR 150; D Moseneke ‘The fourth Bram Fischer memorial lecture: Transformative

adjudication’ (2002) 18 SAJHR 309; M Pieterse ‘What do we mean when we talk about

transformative constitutionalism?’ 2005 SAPL 155; K van Marle ‘Transformative constitution-

alism as/and critique’ (2009) 20(2) Stell LR 286; S Liebenberg ‘Human rights in SouthAfrica’s

constitutional pact’ Lecture delivered on 3April 2012, available at http://www.casac.org.za/?

page_id=24 (accessed on 10 September 2014). For examples of judicial decisions that engage

with transformation and transformative constitutionalism, see S v Makwanyane 1995 (3) SA 391

(CC) para 262; Du Plessis v De Klerk 1996 (3) SA850 (CC) para 157; Bato Star Fishing (Pty) Ltd v

Minister of Environmental Affairs and Tourism2004 (4) SA 490 (CC) paras 73–4; Minister of Finance

v VanHeerden 2004 (6) SA 121 (CC) para 142.

4

P Langa ‘Transformative constitutionalism’ (2006) 17(3) Stell LR 351.

142 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA

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