, QUESTION 1
Transformative constitutionalism is a foundational concept in South African constitutional law,
describing a long-term project aimed at fundamentally changing society through the Constitution.
The term was most notably introduced by Karl Klare, who defined it as a “long-term project of
constitutional enactment, interpretation, and enforcement committed to transforming a country’s
political and social institutions and power relationships in a democratic, participatory, and
egalitarian direction” (Klare, 1998:150). This idea reflects the intention that the Constitution should
not merely preserve existing structures, but actively redress the injustices of apartheid and
promote substantive equality.
At its core, transformative constitutionalism is rooted in the Constitution of the Republic of South
Africa, 1996, which is explicitly value-driven. The Constitution commits the state to human dignity,
equality, and freedom (Section 1), and includes a justiciable Bill of Rights that binds all branches of
government. As Currie and De Waal (2013) explain, the Constitution is both backward-looking, in
addressing past injustices, and forward-looking, in shaping a more equitable future. This dual
function underscores its transformative nature.
The purpose of transformative constitutionalism is therefore to achieve substantive social change.
Unlike formal equality, which treats everyone the same, transformative constitutionalism seeks to
address systemic disadvantage and unequal power relations. Langa CJ emphasised this in Minister
of Finance v Van Heerden (2004), where he noted that the Constitution requires measures
designed to protect or advance persons disadvantaged by unfair discrimination (Langa CJ, 2004).
This reflects a commitment to substantive equality and social justice.
Courts have played a central role in giving effect to transformative constitutionalism. The
Constitutional Court, in particular, has interpreted rights in a manner that promotes social
transformation. In Government of the Republic of South Africa v Grootboom (2000), the Court
recognised the state’s obligation to take reasonable measures to realise the right to access
adequate housing (Yacoob J, 2000). Although the Court did not mandate immediate housing for all,
it required the state to adopt a coherent and inclusive housing policy, demonstrating a pragmatic
but transformative approach.
Similarly, in Minister of Health v Treatment Action Campaign (2002), the Court ordered the
government to make antiretroviral drugs available to prevent mother-to-child transmission of HIV.
This case illustrates how courts can enforce socio-economic rights to bring about tangible
improvements in people’s lives (Ngcobo J, 2002). As Liebenberg (2010) argues, such judgments
show that socio-economic rights are central to transformative constitutionalism, as they address
material inequalities.
Another important example is S v Makwanyane (1995), where the Constitutional Court abolished
the death penalty. The Court grounded its decision in the values of dignity and the right to life,
signalling a break from the repressive past and reinforcing a human rights-based legal order
(Chaskalson P, 1995). This case reflects how transformative constitutionalism reshapes both legal
norms and societal values.
Transformative constitutionalism is a foundational concept in South African constitutional law,
describing a long-term project aimed at fundamentally changing society through the Constitution.
The term was most notably introduced by Karl Klare, who defined it as a “long-term project of
constitutional enactment, interpretation, and enforcement committed to transforming a country’s
political and social institutions and power relationships in a democratic, participatory, and
egalitarian direction” (Klare, 1998:150). This idea reflects the intention that the Constitution should
not merely preserve existing structures, but actively redress the injustices of apartheid and
promote substantive equality.
At its core, transformative constitutionalism is rooted in the Constitution of the Republic of South
Africa, 1996, which is explicitly value-driven. The Constitution commits the state to human dignity,
equality, and freedom (Section 1), and includes a justiciable Bill of Rights that binds all branches of
government. As Currie and De Waal (2013) explain, the Constitution is both backward-looking, in
addressing past injustices, and forward-looking, in shaping a more equitable future. This dual
function underscores its transformative nature.
The purpose of transformative constitutionalism is therefore to achieve substantive social change.
Unlike formal equality, which treats everyone the same, transformative constitutionalism seeks to
address systemic disadvantage and unequal power relations. Langa CJ emphasised this in Minister
of Finance v Van Heerden (2004), where he noted that the Constitution requires measures
designed to protect or advance persons disadvantaged by unfair discrimination (Langa CJ, 2004).
This reflects a commitment to substantive equality and social justice.
Courts have played a central role in giving effect to transformative constitutionalism. The
Constitutional Court, in particular, has interpreted rights in a manner that promotes social
transformation. In Government of the Republic of South Africa v Grootboom (2000), the Court
recognised the state’s obligation to take reasonable measures to realise the right to access
adequate housing (Yacoob J, 2000). Although the Court did not mandate immediate housing for all,
it required the state to adopt a coherent and inclusive housing policy, demonstrating a pragmatic
but transformative approach.
Similarly, in Minister of Health v Treatment Action Campaign (2002), the Court ordered the
government to make antiretroviral drugs available to prevent mother-to-child transmission of HIV.
This case illustrates how courts can enforce socio-economic rights to bring about tangible
improvements in people’s lives (Ngcobo J, 2002). As Liebenberg (2010) argues, such judgments
show that socio-economic rights are central to transformative constitutionalism, as they address
material inequalities.
Another important example is S v Makwanyane (1995), where the Constitutional Court abolished
the death penalty. The Court grounded its decision in the values of dignity and the right to life,
signalling a break from the repressive past and reinforcing a human rights-based legal order
(Chaskalson P, 1995). This case reflects how transformative constitutionalism reshapes both legal
norms and societal values.
