, IRM1501 MAY / JUNE EXAMINATION 2026 - DUE DATE 12-20 MAY 2026
Question 1:
Transformative Constitutionalism
Transformative constitutionalism is one of the most significant ideas in South African
constitutional law. It refers to the use of the Constitution as an instrument to bring about deep
social, political and economic change after apartheid. South Africa’s history of racial
segregation, inequality and exclusion required more than a formal change in government. It
required a constitutional order capable of restructuring society in accordance with democratic
values, equality, dignity and freedom. Transformative constitutionalism therefore recognises
that the Constitution is not merely a legal document regulating state institutions, but a
framework for social justice and national reconstruction.1
The concept was most clearly articulated by Karl Klare, who defined transformative
constitutionalism as a long-term project of constitutional enactment, interpretation and
enforcement committed to transforming political and social institutions in a democratic and
egalitarian direction.2 Within South Africa, this understanding is closely connected to the
values contained in the Constitution, especially human dignity, equality, freedom,
accountability and openness. The Constitution establishes a supreme legal order in which all
law and conduct must comply with constitutional principles. Courts, Parliament and the
executive are therefore required to promote transformation through their respective functions.
The purpose of transformative constitutionalism is to address the legacy of apartheid and
create substantive equality. Formal equality alone would be insufficient because many
communities remained disadvantaged by poverty, land dispossession, inadequate housing
and limited access to education or healthcare. For this reason, the Constitution includes
justiciable socio-economic rights such as housing, healthcare, food, water, social security and
1
P de Vos and W Freedman (eds), South African Constitutional Law in Context (2nd edn, Oxford University Press 2015)
34.
2
Karl E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146, 150.
Question 1:
Transformative Constitutionalism
Transformative constitutionalism is one of the most significant ideas in South African
constitutional law. It refers to the use of the Constitution as an instrument to bring about deep
social, political and economic change after apartheid. South Africa’s history of racial
segregation, inequality and exclusion required more than a formal change in government. It
required a constitutional order capable of restructuring society in accordance with democratic
values, equality, dignity and freedom. Transformative constitutionalism therefore recognises
that the Constitution is not merely a legal document regulating state institutions, but a
framework for social justice and national reconstruction.1
The concept was most clearly articulated by Karl Klare, who defined transformative
constitutionalism as a long-term project of constitutional enactment, interpretation and
enforcement committed to transforming political and social institutions in a democratic and
egalitarian direction.2 Within South Africa, this understanding is closely connected to the
values contained in the Constitution, especially human dignity, equality, freedom,
accountability and openness. The Constitution establishes a supreme legal order in which all
law and conduct must comply with constitutional principles. Courts, Parliament and the
executive are therefore required to promote transformation through their respective functions.
The purpose of transformative constitutionalism is to address the legacy of apartheid and
create substantive equality. Formal equality alone would be insufficient because many
communities remained disadvantaged by poverty, land dispossession, inadequate housing
and limited access to education or healthcare. For this reason, the Constitution includes
justiciable socio-economic rights such as housing, healthcare, food, water, social security and
1
P de Vos and W Freedman (eds), South African Constitutional Law in Context (2nd edn, Oxford University Press 2015)
34.
2
Karl E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146, 150.
