LU1 — Setting the Scene
← 00 - Index | Next → 02 - LU2 Law of Property
Learning Outcomes
After studying this unit you should be able to:
- - Explain the relationship between the Constitution and other sources of law
- - Describe transformative constitutionalism in your own words
- - Provide your opinion on the purpose of the Constitution in South Africa
1.1 Internal vs External Legal History
| Type | Focus |
|---|---|
| External history | Outside forces — political, economic, religious, constitutional factors that shaped the legal system |
| Internal history | The actual legal rules (property, contract, delict) and how they developed |
Part 2 is internal legal history — but external events (like apartheid, 1994 elections) constantly feed into it.
1.2 The Constitution as Supreme Law
Section 2 of the Constitution — the Constitution is the supreme law of the Republic. Any law (common law, customary law, or legislation) that:
- - Does not reflect constitutional values, OR
- - Unjustifiably infringes a constitutional right
…is unlawful (invalid) and must be scrapped or changed.
All three sources of South African law must be read alongside the Constitution:
Constitution (supreme)
↓ governs all
Common law | Legislation | Indigenous law⚠️ Note: The Constitution is cited as Constitution of the Republic of South Africa, 1996 — NOT as an Act.
1.3 Transformative Constitutionalism
Klare's definition (1998)
"A long-term process 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 connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law."
Think of it as a national mission guided by the Constitution.
Five questions to apply throughout Part 2
| Question | What to look for |
|---|---|
| What type of transformation? | Socio-economic — land, housing, dignity, equality |
| Why is it needed? | Legacy of colonialism and apartheid |
| How does the Constitution enable it? | Through rights in Ch 2, interpretation duties (ss 39, 173) |
| Who carries the duty? | Judges, lawyers, academics, legal practitioners |
| Is it actually happening? | Identify cases where courts succeed or fail |
The duty on courts (ss 39(2) and 173)
Courts are under a general obligation (not purely discretionary) to develop the common law where it deviates from the spirit, purport and objects of the Bill of Rights. This applies to:
- - Common law
- - Customary law
- - Pre- and post-constitutional legislation
Three key judges on transformative constitutionalism
Justice Chaskalson — dignity is the foundation:
- - Inherent dignity = an attribute of life itself, not a state privilege
- - Dignity requires equality — both equality of rights and equality of dignity
Justice Langa — transformation must never stop:
- - Core principle = people and the law must change
- - "Transformation is a permanent ideal… change is unpredictable but the idea of change is constant"
Justice Moseneke — Constitution as driver of social revolution:
- - "Transformative constitutionalism is certainly not an event. It is a process that all wielders of public and private power are duty-bound to advance."
1.4 The Relationship Between LUs 2, 3 and 4
No field of law stands alone:
- - Law of property and law of contract overlap (the contract of sale is the iusta causa for transfer of ownership)
- - Law of contract and law of delict share principles (negligence, reasonable person)
- - The Constitution applies as supreme law across all fields simultaneously
Self-Assessment Questions
- - How did the Age of Reason change natural law and human rights?
- - How did ubuntu change the concept of human rights in Africa?
- - What did the Court say about values in S v Makwanyane?
- - Name three reasons the TRC identified for courts' failure against apartheid legislation.
- - What does "transformative constitutionalism" mean to you in your own words?