Transformative social change and the role of the judge in post-apartheid South Africa

• Citation: (2022) 33 Stell LR 595
• DOI: https://doi.org/10.47348/SLR/2022/i4a1
• Published date: 28 March 2023
• Pages: 595-604
• Author: Mlambo, D.
• Date: 28 March 2023

https://doi.org /10.47348/ SLR/2 022/i4 a1

595

TRANSFORMATIVE SOCIAL CHANGE AND THE

ROLE OF THE JUDGE IN POST-APARTHEID

SOUTH AFRICA

Judge President Dunstan Mlambo

Judge President of the Gauteng Division of the High Court*

Abstract

The Constitution of the Republic of South Africa, 1996 committed South

Africa to a path of social transformation through its endorsement of the

concept of transformative constitutionalism. Ultimately, this requires the

transition of South African society from a state of deep inequality and injustice

towards a more equal society characterised by social justice. Transformative

constitutionalism has important consequences for the judiciary and the way

in which judges discharge their judicial responsibilities. This lecture explores

what transformative constitutionalism entails for the judiciary in fullling

their adjudicative mandate under the Constitution. It assesses how well judges

have fared in their attempts to ensure the transformation of South Africa’s

legal culture and methods of judicial decision-making. It further proposes how

judges should approach their constitutional obligation to develop the common

law and interpret legislation to give full effect to constitutional rights and

values. The lecture concludes by reecting on the role of the judiciary in light

of the current socio-political context and debates in South Africa.

Keyword s: South African Constitution; transfor mative constitutionalism;

adjudication; common-law development; statutory interpreta tion; separation

of powers

1 Introduction

It has been emphasised many times that the Constitution of the Republic of

South Africa, 1996 (the “Constitution”) embraces an aspiration and an intention

to realise a democratic and egalitarian society committed to social justice and

self-realisation opportunities for all in South Africa. In S v Makwanyane1

(“Makwanyane”), Mahomed CJ said that our Constitution:

“represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully

racist, authoritarian, insular, and repressive and a vigorous identication of and commitment to a

* This lecture was delivere d on th e occasion of the Stellenbosch University Faculty of Law and the H F

Oppenheimer Ch air’s Annual Human Rights Lect ure, which was held in a hybrid format at Stel lenbosch

University on 24 March 2022 The Faculty and the Chair acknowledge with gr atitude the sponsorship of

the Annua l Human Rights Lec ture by Webber Wentzel

1 1995 3 SA 391 (CC)

(2022) 33 Stell LR 595

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