IRM1501_ ASSIGNMENT 2 Semester 2 2021.

IRM1501_ ASSIGNMENT 2 Semester 2 2021. Introduction To Research Methodology For Law And Criminal Justice. Transformative Constitutionalism is a new concept founded its basis in the constitution. It has no single accepted definition. The notion of Transformative Constitutionalism described the nature of South Africa’s post-democratic Constitution. South African recognise the injustice of the past also known as post amble; a historic bridge between the past of a deep divided society characterised by strife, conflict, untold suffering, slavery, discrimination and racism; the need arise to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. The recognition of human rights, democracy and co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.¹ This is a magnificent goal for constitution: to heal the wounds of the past and guide us to a better future. The preamble of the 1996 Constitution states: ‘We adopt this Constitution as the supreme law of the Republic so as to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; improve the quality of life of all citizens and free the potential of each person; and build a united and democratic South Africa able to take its rightful place as a sovereign state in the family nations.’ In a seminal article published in 1998, American, Karl Klare coined the term “transformative constitutionalism”, which he went on to describe 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”. Transformative Constitutionalism as such, means using the law to effect comprehensive social change through a non-violent political means.² Transformative Constitutionalism can also be seen as a constitutional law which has a purpose of overcoming past discrimination and disadvantage suffered by group of people on the race, gender, etc. ____________________ ¹ Constitution of the Republic of South Africa Act 200 of 1993 ² Klare, K Legal Culture and Transformative Constitutionalism. South African Journal on Human Rights, 14, 146-188. This characteristic of transformative constitution is explicitly expressed under post amble of the interim constitution and preamble of 1996 Constitution. This study source was downloaded by from CourseH on :31:37 GMT -05:00 This study resource was shared via CourseH The Deputy Chief Justice has said in this regard: ‘the meaning of transformative in juridical terms is as highly contested as it is difficult to formulate’.³ Transformative Constitutionalism has been given added impetus by the need to change, bury the wounds of the past and build one unified and democratic nation; encompassing freedom and the rule of the law, fulfilment of substantive equality, protection of human dignity and the promotion of national unity and reconciliation (Moseneke, 2007). It has gone beyond saying that apartheid was wrong and must be reversed. It has found that we must revisit our basic notions of the constitution. South Africa’s 1996 Constitution is recognised as a transformative text mainly because it is founded on historic values of non-racialism, non-sexism, Bill of Rights and the rule of law. Professor Karl Klare formulated the notion of Transformative Constitutionalism (TC) given the country’s system of constitutional supremacy and the Constitution’s values. The need arise for a strong normative and institutional framework and the significance of utilising the institutional authority to promote the course of TC to achieve substantive justice. Section 7 of the Constitution obliges the state to respect, protect, promote and fulfil the rights enshrined in the Bill of Rights. As such particular provision is key to the transformative goals of the Constitution. Implementation of Transformative Constitutionalism in Socio-economic and administrative justice The achievement of substantive equality will be impossible without addressing the material consequences of social and economic vulnerability, and as such is tied up inextricably with the alleviation of concrete hardship occasioned by poverty and material deprivation. For this reason, the socio-economic upliftment of the majority of South Africans and the concomitant achievement of social justice may be classified as integral components of the constitutional transformation project. In the case of Soobramoney v Minister of Health, Kwa-Zulu Natal 1998 1 SA 765 (CC) para 8: ‘We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.’