, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Consider the following statement and answer the question that follows: “Transformative
constitutionalism is founded or has its basis in the Constitution. By its design and nature, the
Constitution is transformative in various ways.” Critically analyse the concept of transformative
constitutionalism. In your answer, explain the meaning and purpose of transformative
constitutionalism within the South African constitutional framework. Further discuss how
courts have applied this concept in practice over time. You must also refer to authors who
published about transformative constitutionalism.
Transformative constitutionalism represents a distinctive feature of the South African constitutional
order, emerging from the country's transition from apartheid to constitutional democracy. Unlike
traditional constitutional models that merely establish the framework for government, transformative
constitutionalism envisions law as an instrument for fundamental social change.
The meaning of transformative constitutionalism
There is currently no precise or uniform definition of transformative constitutionalism.¹ The concept
was introduced by American legal scholar Karl Klare in his seminal 1998 article "Legal Culture and
Transformative Constitutionalism."² Klare defines transformative constitutionalism as:
"a long-term project of constitutional enactment, interpretation, and enforcement committed (not in
isolation, of course, but in a historical context of conducive political development) to transforming a
country's political and social institutions and power relationships in a democratic, participatory,
and egalitarian direction."³
Klare further explains that transformative constitutionalism "connotes an enterprise of inducing
large-scale social change through non-violent political processes grounded in law" – a transformation
"vast enough to be inadequately captured by the phrase 'reform', but something short of or different
from 'revolution' in any traditional sense of the word."⁴
Former Chief Justice Pius Langa described transformative constitutionalism as entailing "a culture of
respect for human life and dignity, based on the values reflected in the Constitution."⁵ He
emphasised that the 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
identification or commitment to a democratic, universalistic, caring and aspirational egalitarian
ethos."⁶
¹ Study Guide for IRM1501, Introduction to Research Methodology for Law and Criminal Justice (University of South Africa 2025) 51.
² K Klare, 'Legal Culture and Transformative Constitutionalism' (1998) 14 South African Journal on Human Rights 146.
³ Klare (n 2) 150.
⁴ Klare (n 2) 150-151.
⁵ P Langa, 'Transformative Constitutionalism' (2006) 17 Stellenbosch Law Review 352.
⁶ Langa (n 5) 353.
, The constitutional foundation of transformative constitutionalism
Transformative constitutionalism finds its basis in the Constitution itself. The Preamble to the
Constitution recognises "the injustices of our past" and commits to healing "the divisions of the past"
and establishing "a society based on democratic values, social justice and fundamental human
rights."⁷ The words "we, the people of South Africa" suggest a collective responsibility to transform
society.⁸
Section 39(2) of the Constitution provides a specific mandate for judicial transformation, requiring
courts to promote "the spirit, purport and objects of the Bill of Rights" when interpreting legislation
and developing the common law or customary law.⁹ This provision empowers courts to infuse all
areas of law with constitutional values, thereby advancing the transformative project.
The purpose of transformative constitutionalism
The purpose of transformative constitutionalism is to facilitate the transition from apartheid to a
democratic, egalitarian society through legal processes. Klare describes it as aiming to induce
"large-scale social change through non-violent political processes grounded in law."¹⁰ The concept
goes beyond mere reform, seeking fundamental changes to "political and social institutions and
power relationships."¹¹
Transformative constitutionalism serves several key purposes: first, it provides a framework for
addressing historical injustices; second, it promotes democratic values including human dignity,
equality and freedom; third, it encourages critical engagement with legal principles through the lens
of constitutional values; and fourth, it mandates the development of all areas of law – both public
and private – to align with the Constitution's transformative vision.¹²
Judicial application of transformative constitutionalism
South African courts have applied transformative constitutionalism in several landmark cases.
S v Makwanyane and Another (1995)
The Constitutional Court's first major judgment, S v Makwanyane, which declared the death penalty
unconstitutional, is frequently cited as an early expression of transformative constitutionalism.¹³
Dube states that "transformative constitutionalism began in the Constitutional Court when this court
decided to incorporate the notion of ubuntu in South African law in the case of S v Makwanyane."¹⁴
In this case, the court held that the death penalty violated the right to life and the right to dignity,
thereby embedding human rights values at the heart of the new constitutional order. Kruuse argues
that the application of the notion of ubuntu has been extended from this case to other areas, including
customary law.¹⁵
⁷ Constitution of the Republic of South Africa, 1996, Preamble.
⁸ Study Guide (n 1) 51.
⁹ Constitution of the Republic of South Africa, 1996, s 39(2).
¹⁰ Klare (n 2) 150.
¹¹ Klare (n 2) 150.
¹² Study Guide (n 1) 51-52.
¹³ S v Makwanyane and Another 1995 (3) SA 391 (CC).
¹⁴ F Dube, 'The South African Constitution as an Instrument of Doing What is Just, Right and Fair' (2020) 54 In Die Skriflig 4.
¹⁸ H Kruuse, 'Ubuntu, Customary Law and the Constitution' (2014) 5 Constitutional Court Review 19.
1. Consider the following statement and answer the question that follows: “Transformative
constitutionalism is founded or has its basis in the Constitution. By its design and nature, the
Constitution is transformative in various ways.” Critically analyse the concept of transformative
constitutionalism. In your answer, explain the meaning and purpose of transformative
constitutionalism within the South African constitutional framework. Further discuss how
courts have applied this concept in practice over time. You must also refer to authors who
published about transformative constitutionalism.
Transformative constitutionalism represents a distinctive feature of the South African constitutional
order, emerging from the country's transition from apartheid to constitutional democracy. Unlike
traditional constitutional models that merely establish the framework for government, transformative
constitutionalism envisions law as an instrument for fundamental social change.
The meaning of transformative constitutionalism
There is currently no precise or uniform definition of transformative constitutionalism.¹ The concept
was introduced by American legal scholar Karl Klare in his seminal 1998 article "Legal Culture and
Transformative Constitutionalism."² Klare defines transformative constitutionalism as:
"a long-term project of constitutional enactment, interpretation, and enforcement committed (not in
isolation, of course, but in a historical context of conducive political development) to transforming a
country's political and social institutions and power relationships in a democratic, participatory,
and egalitarian direction."³
Klare further explains that transformative constitutionalism "connotes an enterprise of inducing
large-scale social change through non-violent political processes grounded in law" – a transformation
"vast enough to be inadequately captured by the phrase 'reform', but something short of or different
from 'revolution' in any traditional sense of the word."⁴
Former Chief Justice Pius Langa described transformative constitutionalism as entailing "a culture of
respect for human life and dignity, based on the values reflected in the Constitution."⁵ He
emphasised that the 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
identification or commitment to a democratic, universalistic, caring and aspirational egalitarian
ethos."⁶
¹ Study Guide for IRM1501, Introduction to Research Methodology for Law and Criminal Justice (University of South Africa 2025) 51.
² K Klare, 'Legal Culture and Transformative Constitutionalism' (1998) 14 South African Journal on Human Rights 146.
³ Klare (n 2) 150.
⁴ Klare (n 2) 150-151.
⁵ P Langa, 'Transformative Constitutionalism' (2006) 17 Stellenbosch Law Review 352.
⁶ Langa (n 5) 353.
, The constitutional foundation of transformative constitutionalism
Transformative constitutionalism finds its basis in the Constitution itself. The Preamble to the
Constitution recognises "the injustices of our past" and commits to healing "the divisions of the past"
and establishing "a society based on democratic values, social justice and fundamental human
rights."⁷ The words "we, the people of South Africa" suggest a collective responsibility to transform
society.⁸
Section 39(2) of the Constitution provides a specific mandate for judicial transformation, requiring
courts to promote "the spirit, purport and objects of the Bill of Rights" when interpreting legislation
and developing the common law or customary law.⁹ This provision empowers courts to infuse all
areas of law with constitutional values, thereby advancing the transformative project.
The purpose of transformative constitutionalism
The purpose of transformative constitutionalism is to facilitate the transition from apartheid to a
democratic, egalitarian society through legal processes. Klare describes it as aiming to induce
"large-scale social change through non-violent political processes grounded in law."¹⁰ The concept
goes beyond mere reform, seeking fundamental changes to "political and social institutions and
power relationships."¹¹
Transformative constitutionalism serves several key purposes: first, it provides a framework for
addressing historical injustices; second, it promotes democratic values including human dignity,
equality and freedom; third, it encourages critical engagement with legal principles through the lens
of constitutional values; and fourth, it mandates the development of all areas of law – both public
and private – to align with the Constitution's transformative vision.¹²
Judicial application of transformative constitutionalism
South African courts have applied transformative constitutionalism in several landmark cases.
S v Makwanyane and Another (1995)
The Constitutional Court's first major judgment, S v Makwanyane, which declared the death penalty
unconstitutional, is frequently cited as an early expression of transformative constitutionalism.¹³
Dube states that "transformative constitutionalism began in the Constitutional Court when this court
decided to incorporate the notion of ubuntu in South African law in the case of S v Makwanyane."¹⁴
In this case, the court held that the death penalty violated the right to life and the right to dignity,
thereby embedding human rights values at the heart of the new constitutional order. Kruuse argues
that the application of the notion of ubuntu has been extended from this case to other areas, including
customary law.¹⁵
⁷ Constitution of the Republic of South Africa, 1996, Preamble.
⁸ Study Guide (n 1) 51.
⁹ Constitution of the Republic of South Africa, 1996, s 39(2).
¹⁰ Klare (n 2) 150.
¹¹ Klare (n 2) 150.
¹² Study Guide (n 1) 51-52.
¹³ S v Makwanyane and Another 1995 (3) SA 391 (CC).
¹⁴ F Dube, 'The South African Constitution as an Instrument of Doing What is Just, Right and Fair' (2020) 54 In Die Skriflig 4.
¹⁸ H Kruuse, 'Ubuntu, Customary Law and the Constitution' (2014) 5 Constitutional Court Review 19.
