Question 1 (20 marks)

Consider the following excerpts below and answer the question that follows:

“Although some black people have been economically empowered, a significant number of South Africans still live in poverty. Estimates by Statistics South Africa show that around half of South Africans survive on less than R779 per month. South Africa suffers from high levels of unemployment estimated at between 25% and 38%. The country also faces a huge housing backlog, with millions of people still living in informal settlements without access to basic services. The National Development Plan (NDP), South Africa’s developmental blueprint, has chillingly warned that the failure to address these challenges is likely to result in economic decline, rising competition for resources, social tension and the rise of populist politics which may lead to social instability.

In light of the above background, one of the key objectives of the Constitution is to help facilitate the transformation of South African society through improving the quality of life of all citizens. Klare has characterised such an endeavour as transformative constitutionalism, which signifies ‘an enterprise of inducing large-scale social change through non-violent political processes grounded in law.’ The notion of transformative constitutionalism has found deep expression in the Constitutional Court’s jurisprudence and academic literature. Key elements of this transformation include redressing the legacy of past injustices and building an inclusive society anchored on social justice, fundamental rights and the improvement in the quality of people’s lives.”

Sourced: De Vos, P., Freedman, W., Boggenpoel Z., Draga, L., Gevers, C., Govender, K., Lenaghan, P., Mnisi Weeks, S., Namakula, C.S., Ntlama, N., Mailula, D., Moyo, K., Sibanda, S. & Stone, L. 2021. South African Constitutional Law in Context. 2nd edition. South Africa: Oxford University Press.

Some critics have pointed out that despite the transformative nature of the Constitution, South African society has not been radically transformed over the past 25 years. They argue that transformative constitutionalism is an ideal that finds little application in practice. Other critics have gone further, by questioning whether transformative constitutionalism is a concept that can respond adequately to South Africa’s specific realities.
Write an essay wherein you discuss some of the core ideas and critiques of transformative constitutionalism in post-Apartheid South Africa. In your answer, evaluate whether transformative constitutionalism is a concept that can respond adequately to South Africa’s specific realities.

Note to student:

• In your answer, you are required to explain:

o The concept of ‘transformative constitutionalism’;

o Some of the core ideas of transformative constitutionalism;

o Some of the critiques of transformative constitutionalism; and

o Evaluate whether transformative constitutionalism, as a concept, can respond adequately to the realities of South Africa.

Answers to Above Questions on Constitutional Law

Answer 1: There is a significant societal transformation identified in the South African economy after the apartheid and the main focus has been on the principles of equality, dignity and Social Justice. The concept of transformative constitutionalism therefore embarks on the principle of large scale social change through non violent political processes.

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