L du Plessis1 1 Introductory observations

Transformative constitutionalism: the bridge bridging

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9 Transformative constitutionalism: the bridge bridging

Transformative constitutionalism, in the words of Karl Klare,90

... connotes an enterprise of inducing large-scale social change through nonviolent 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. In the background is the idea of a highly egalitarian, caring, multicultural community, governed through participatory, democratic processes in both the polity and large portions of what we now call the "private sphere".

Klare wrote these words in an article on transformative constitutionalism in which he paid tribute to Etienne Mureinik, the principal proponent of a constitutionalism of justification.

Some critical legal scholars have questioned justificatory constitutionalism's use of the bridge metaphor to depict transition as a once-off, linear progression from "the old dispensation" to "the new", and thus from a culture of authority to a culture of justification. André van der Walt, for instance, claims that

... the bridge metaphor ... allows for another interpretation where the bridge is not simply an instrument for getting out of one place and into another, but an edifice that is inherently related to the abyss which it spans. Here, the focus is not on the two spaces on either side of the abyss, but on the abyss itself – the bridge is functionally and inherently linked to and obtains its significance from the abyss beneath it, so that the bridge is not a temporary instrument for a single crossing, one way, but allows and invites multiple crossings, in both directions, since there is no inherent value attached to being one side of the bridge rather than the other. In this alternative interpretation of the bridge metaphor the danger is to stay on one side, while the bridge allows us to connect one side with the other.91

Wessel le Roux adds that it is not the bridge itself which is significant but the act of bridging, of linking the past and the future, reality and imagination, in order to create new ideas in the present.92 Memorial constitutionalism makes very much the same point: South Africa is still coming to terms with its notorious past along the way of still getting to grips with the future. The past cannot and should not be left behind – there is in other words no once-off crossing of the bridge – and the promise of the future gains much of its significance from engagement with the past.93

Michael Bishop calls the bridge that Van der Walt and Le Roux metaphorically envision "a transformative bridge" and explains its significance as follows:

[V]an der Walt and le Roux offer a space in which dialogue and transformation are truly possible, in which new ways of being are constantly created, accepted and rejected and in which change is unpredictable and constant. I would call this a transformative bridge because it envisions constant change and re-evaluation without end, rather than a move from one point to another ... [T]he transitional bridge is a path, while the transformative bridge is a space.94

What emerges from the discussion so far is that transformative constitutionalism has every potential to impact constitutional (and, more generally, legal) interpretation profoundly and guide, as a leitmotiv, both the interpretive mind-set (also read: theoretical position(s)) and the interpretive style (also read: methodology) of especially judicial interpreters of the Constitution, in an irrevocably new direction.95 South Africa's Constitution is furthermore thoroughly transformative in many respects, and in section 7(2) it invites (and arguably compels) the optimum realisation of the rights entrenched in the Bill of Rights, requiring the state not only to respect and protect, but (also) to promote and fulfil those rights.

Klare typifies the South African Constitution as "post-liberal" because it simultaneously entrenches conventional liberal democracy and the basic tenets of (and normative preconditions to) an all-out transformation of South African society.96

The distinctive traits of the transformative South African Constitution are said to be (among others) "the attainment of substantive equality, the realisation of social justice, the infusion of the private sphere with human rights standards and the cultivation of a culture of justification in public law interactions".97 Pius Langa, South Africa's former Chief Justice, in an extra-curial writing, conceives of such traits as challenges posed by the transformative Constitution, namely to procure equal access to justice for all, to educate law students who will be up to the demands of the kind of legal and social order envisaged in the Constitution, to rid the legal culture of its formalism, and to create a climate for and, indeed, conduce national reconciliation.98 The transformative nature of the Constitution has far-reaching implications for its interpretation and necessitates a decisive makeover of legal culture, especially as it manifests in the conventional manners (and assumptions) of adjudicative reasoning pertinent to the interpretation and implementation of enacted law. Klare writes in this regard:99

The Constitution invites a new imagination and self-reflection about legal method, analysis and reasoning consistent with its transformative goals. By implication, new conceptions of judicial role and responsibility are contemplated. Judicial mind-set and methodology are part of the law, and therefore they must be examined and revised so as to promote equality, a culture of democracy and transparent governance.

According to Klare the drafters of the Constitution, having dramatically reworked substantive constitutional foundations and assumptions, could not have intended the new Constitution to be interpreted with reliance on conventional legalist methods of interpretation, thereby having its transformative qualities restrained by "the intellectual instincts and habits of mind of the traditional common or Roman-Dutch lawyer trained and professionally socialized during the apartheid era".100 Transformative constitutionalism thus inspires preference for non-formalist, non-legalist and non-literalist approaches to constitutional interpretation and, very importantly, it explodes the myth that an a- or non-political legal interpretation – and constitutional interpretation, in particular – is achievable.

South African courts (and the Constitutional Court in particular) have on several occasions in the course of construing the Constitution, made boldly transformative moves. Most of the judgements where this happened could well be depicted as instances of transformative constitutionalism, though in much of its jurisprudence on intimate relationships – which is outcome-wise very progressive – the Constitutional Court tended to rely on a rather conventional formalist, legalist and literalist approach to constitutional interpretation, thereby dashing Klare's hopes that transformative constitutionalism would go hand in hand with an innovative mode of constitutional interpretation shedding conventional -isms.101

The Constitutional Court judgements most directly and evidently inspired by transformative constitutionalism as an interpretive leitmotiv are probably those dealing with the state's obligation to implement socioeconomic rights. Government of the Republic of South Africa v Grootboom102 heralded a wholehearted (judicial) acceptance of the justiciability of the socioeconomic entitlements enshrined in the Bill of Rights (in sections 26 and 27 in particular). It furthermore emphasised competent courts' responsibility to enforce these entitlements by carefully crafting appropriate "orders with teeth" to redress government authorities' disinclination and/or incapacity to procure access to the commodities to which the said entitlements pertain. The Grootboom judgment blazed the trail for the bold and far-reaching declaratory and mandatory orders in Minister of Health v Treatment Action Campaign,103 compelling the fulfilment of the state's constitutional mandate (and obligation) to supply and administer Nevirapine to HIV-positive women and their babies.104

Generally speaking, it is transformative constitutionalism that pilots and shapes meaningful implementation of the socioeconomic rights enshrined in the Bill of Rights. According to Sandra Liebenberg105 South Africa's transformative Constitution, with its decided emphasis on socioeconomic rights, "aims to facilitate the transformation of society by setting right the wrongs of the past", but also "aims at facilitating the construction of a new political, social and economic order 'based on democratic values, social justice and fundamental human rights'".106 The Constitution is, in other words, both backward-looking and forward-looking – an insight that also resonates favourably with memorial constitutionalism.

Directory: journals -> PER -> 2015
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2015 -> The universal jurisdiction of south african criminal courts and immunities of foreign state officials
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2015 -> Inclusive basic education in south africa: issues in its conceptualisation and implementation
2015 -> "I am not a number! I am a free man!" The employment equity act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid south africa) part 2 am louw1 summary
2015 -> The regulation of market manipulation in australia: a historical comparative perspective
2015 -> The development of international law through the unauthorised conduct of international institutions
2015 -> Sa peté 1 Introduction

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