LEGAL SKILLS: ASSIGNMENT 7
ESSAY ON TRANFORMATIVE CONSTITUTIONALISM
NAME: TSHEPANG R. MOKOBANE
STUDENT NUMBER: 201700867
TUTOR: NONKULULEKO MAEPA
DATE: 02 MAY 2018
TABLE OF CONTENTS
1. Cover page
2. Essay on Transformative Constitutionalism
1. Conceptualising the abstract notion of Transformative Constitutionalism in simple terms, would easily be apprehended as a principle which gives a detailed description of the post-democratic Constitution of South Africa, and how it has transformed. “The notion of Transformative Constitutionalism describes the nature of South Africa’s post-democratic Constitution. In understanding this notion, it is essential to appreciate that it compromises two distinct concepts, that is transformation and constitutionalism. Thus, it is essential to understand these concepts considerate of the aspirations and fundamental values of the Constitution” (Rapatsa, 2014). Constitutionalism is a doctrine which signifies that the Constitution is the supreme law of the Republic, and transformation is change – change that is desired by the Transformative Constitutionalism notion to guide the nation to a better future (Langa, 2006).
The concept of Transformative Constitutionalism gives us an insight of the contents of the post-1994 Constitution compared to those of the Interim Constitution and how transformation has transpired. “It is important to distinguish between the past and present constitutional governance system, in studying the notion of the Transformative Constitutionalism. Such a contrast position us better in grappling with the meaning of the Transformative Constitutionalism, norms and principles that underlie post-1994 Constitutional Supremacy, a central pillar of the Transformative Constitutionalism” (Rapatsa, 2014).
2. The impact that the Transformative Constitutionalism has had on the society is that, it has instilled abstract change in how things were, and how they are to be judicially done. It entails that the state should be better positioned to fulfil and strengthen the constitutional ambition of bettering social, economic and justice services indiscriminatively – hence, transformation informed a construction if a new legal order, with opportunities being created for all, particularly to eradicate the material prejudices inherited from the past. (Rapatsa, 2014). Perceiving the right to equality regarding same-sex marriages in South Africa, gay men and lesbians were drawn to being prejudiced, discriminated and ridiculed because of their sexuality. Before same-sex marriages were legalized in South Africa (which was during the apartheid era) homosexuals were faced with many challenges as the South African government inflicted very strict law upon them. It was only after Civil Union Bill, which replaced The Marriage Act, where freedom and equality was received by homosexual individuals and entitled them to same-sex marriages. Transformation prior to getting equal treatment for homosexuals was a difficult one as the Civil Union Bill still does not approve of same-sex marriages as such, by allowing churches to deny same-sex marriages. However, from where the right to equality stood before transformation, it is clear that it was perceived as whether it was for certain individuals only or not, and it is now visible that regardless of all occurrences, those homosexual individuals are now accommodated. There is vast transformation, although it is not to a greater extent. What is contended is that we should instead view the bridge of the interim Constitution as a space between an unstable past and an uncertain future (Langa, 2006).
3. Transformative Constitutionalism has faced a variety of challenges to an extent that it was regarded only as temporary bridge between the interim Constitution and the transformed Constitution and that soon after the bridge has been crossed and all our desires of a transformed society are fulfilled, then it shall be no more. However, transformation is not a temporary phenomenon that ends when we all have equal access to resources and basic services and when lawyers and judges embrace a culture of justification (Langa, 2006). The future is uncertain, however, to date, transformation of the interim Constitution is very colossal. There exists no more principles of Parliamentary sovereignty; there now exists separation of powers in which certainty is given that power will not be concentrated in one particular area of the government and that all members of the society are protected against abuse of centralised power. Human dignity, equality and freedom are elevated as the core values of the Constitution and everyone is entitled to equal enjoyments and benefits of the law of South Africa. As to “Equality of Same-sex marriages” which I served as case study for Transformative Constitutionalism, South Africa’s transitional Constitution became the first in the world to include explicit protection against discrimination on the ground of sexual orientation. The occurrence of such a development serves as proof that there is departure from how things were in the Apartheid era and before the Constitution transformed. The inclusion of sexual orientation clause in the Constitution is truly a radical step as it presupposes that being gay or lesbian is a neutral trait or disposition, like left-handedness; not changeable or changeable only at an unacceptable cost.
I believe that from where we, as a South African society are, currently; stand in a position that is very much evident of the past occurrences that we have encountered and how transformation has since transpired. Our nation has grown and developed – and is still developing. We have departed from the harsh injustices of the past and are now able to have a say in matters concerning the protection of our rights. Transformative Constitutionalism has transformed the society by rectifying the injustices of the past and created a society that is unbiased. Regarding the law, judges are entitled to judicial discretion to use to effect social change and are no longer bind by the harsh supreme Parliament doctrine. There is now the Rule of Law which declares that law governs a society and that it applies equally to all individuals of the state. Restorative bodies such as the Truth and Reconciliation Commission were initiated as platforms to restore and heal both psychological and emotional wounds suffered by everyone who experienced violation and abuse of their human rights.
Since the notion of Transformative Constitutionalism, legislation is now interpreted with the aims of promoting the spirit, purports and objectives of the Bill of Rights. Now, regarding such a constitutional declaration, as I have used “The right to equality and same-sex marriages” as case study for Transformative Constitutionalism, it now much apparent that, since the transformation, interpretation of legislation has been enforced and homosexual individuals now have equal benefits of the law, unlike before. It has become perceptible that equality is for everyone, regardless of their sex, and the aims of Transformative constitutionalism have been met in this chosen area of the law.
Langa “Transformative Constitutionalism” 2006 HeinOnline 352 354.
The Constitution of the Republic of South Africa, 1996.
Rapatsa “Transformative Constitutionalism in South Africa; 20 years of Democracy” (2014) Mediterranean Journal of Social Sciences 888 890.
De Vos “Same-sex marriage, the right to equality and the South African constitution” 2007 SA Public Law 356.
Civil Union Act 17 of 2006.
The Marriage Act 25 of 1961.