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TRANSFORMATIVE CONSTITUTIONALISM*

Justice Pius Langa

Chief Justice of the Republic of South Africa.

1 Introduction
Both the Constitutional Court1 and other courts 2 view the Constitu-
tion as transformative. The previous Chief Justice has written that a
"commitment ...to transform our society ...lies at the heart of the new
constitutional order". 3 It is clear that the notion of transformation has
played and will play a vital role in interpreting the Constitution. The
main purpose of this address is to determine what barriers exist to the
achievement of that transformation.

2 What is transformative constitutionalism?

Before I attempt to analyse the problems that transformative
constitutionalism faces in South Africa, it is necessary to say what I
understand the concept to mean. Unfortunately, there is no single
accepted definition. The current Deputy Chief Justice 4 has said in this
regard: "the meaning of transformation in juridicial terms is as highly
contested as it is difficult to formulate". It is perhaps in keeping with the
spirit of transformation that there is no single stable understanding of
transformative constitutionalism.

* Prestige lecture delivered at Stellenbosch University on 9 October 2006.

See, eg, S v Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC) par 262: "What the Constitution
expressly aspires todo is to provide a transition from these grossly unacceptable features of the past to
a conspicuously contrasting ... future."; Du Plessis v De Klerk 1996 3 SA 850 (CC), 1996 5 BCLR 658
(CC) par 157: "[The Constitution] is a document that seeks to transform the status quo ante into a new
order".
2 See, eg, Rates Action Group v City of Cape Town 2004 12 BCLR 1328 (C) par 100: "Ours is a
transformative constitution. Justice Scalia of the US Supreme Court has said that "the whole purpose
of a constitution, old or new ... is to impede change or pejoratively put 'to obstruct modernity'...
Whatever the position may be in the USA or other countries, that is not the purpose of our
Constitution. Our Constitution provides a mandate, a framework and to some extent a blueprint for
the transformation of our society from its racist and unequal past to a society in which all can live with
dignity." (references omitted) (per Budlender AJ); City of Johannesburg v Rand Properties (Pty) Ltd
2006 6 BCLR 728 (W) pars 51-52: "Our Constitution encompasses a transformative provision. As such,
the State cannot be a passive bystander in shaping the society in which individuals can fully enjoy their
rights? [The full transformative power of the rights in the Bill of Rights will only be realised when they
are interpreted with reference to the specific social and economic context prevalent in the country as a
whole, and the social and economic context within which the applicant now finds itself in particular."
(per Jajbhay J).
3 Soobramoney v Ministerof Health, KwaZulu-Natal 1998 1 SA 765 (CC), 1997 12 BCLR 1696 (CC) par
8.
4 Moseneke "The Fourth Brain Fischer Memorial Lecture: Transformative Adjudication" 2002 18
SAJHR 309 315.
 STELL LR 2006 3

There must, however, be agreement at any rate on some basis for an

understanding of transformative constitutionalism. I would suggest that
the Epilogue, also known as the Postamble, to the interim Constitution
provides that basis. The Epilogue describes the Constitution as providing:
"a historic bridge between the past of a deeply divided society characterised by strife, conflict,
untold suffering and injustice, and a future founded on the recognition of human rights,
democracy and peaceful co-existence and development 5 opportunities for all South Africans,
irrespective of colour, race, class, belief or sex".

This is a magnificent goal for a Constitution: to heal the wounds of the

past and guide us to a better future. For me, this is the core idea of
transformative constitutionalism: that we must change. But how must we
change? How does the society on the other side of the bridge differ from
where we stand today?
First, the new society is one based on substantive equality. Writing in
the South African Journalof Human Rights in 1998, Albertyn & Goldblatt
make the point that the movement from the one side of this bridge to the
other will
"require a complete reconstruction of the state and society, including a redistribution of power
and resources along egalitarian lines. The challenge of achieving equality within this
transformation project involves the eradication of systemic forms of domination and material
disadvantage based on race, gender, class and other grounds of inequality. It also entails the
development of opportunities6' which allow people to realise their full human potential within
positive social relationships."

Transformation then is a social and an economic revolution. South

Africa at present has to contend with unequal and insufficient access to
housing, food, water, healthcare and electricity. As former Chief Justice7
Chaskalson wrote in Soobramoney v Minister of Health, KwaZulu-Natal,
"[flor as long as these conditions continue to exist that aspiration [that is,
of substantive equality] will have a hollow ring". The provision of
services to all and the levelling of the economic playing fields that were so
drastically skewed by the apartheid system must be absolutely central to
any concept of transformative constitutionalism. 8 Transformation in this
sense does not only involve the fulfilment of socio-economic rights, but
also the provision of greater access to education and opportunities 9
through various mechanisms, including affirmative action measures.

5 Constitution of the Republic of South Africa, Act 200 of 1993.

6 Albertyn & Goldblatt "Facing the Challenge of Transformation: Difficulties in the Development of an
Indigenous Jurisprudence of Equality" 1998 14 SAJHR 248 249.
1998 1 SA 765 (CC), 1997 12 BCLR 1696 (CC) par 8.
8 See City of Johannesburg v Rand Properties (Pty) Ltd 2006 6 BCLR 728 (W) pars 51-52.
9 See Van Rooyen v S 2002 8 BCLR 810 (CC) par 50: "Mransformation involves not only changes in the
legal order, but also changes in the composition of the institutions of society, which prior to 1994 where
largely under the control of whites and, in particular, white men." (per Chaskalson CJ); Minister of
Finance v Van Heerden 2004 11 BCLR 1125 (CC) par 142: "The substantive approach [to equality], on
the other hand, requires that the test for constitutionality is not whether the measure concerned treats
all affected by it in identical fashion. Rather it focuses on whether it serves to advance or retard the
equal enjoyment in practice of the rights and freedoms that are promised by the Constitution but have
not already been achieved. It roots itself in a transformative constitutional philosophy which
TRANSFORMATIVE CONSTITUTIONALISM

3 The objective - a truly equal society

In this sense then, the establishment of a truly equal society and the
provision of basic socio-economic rights to all are a necessary part of
transformation. That is, however, not the whole story. And this leads me
to the second part and this is the transformation of the legal culture.
It was Mureinik 1° who pointed out that the true shift from apartheid to
post-apartheid South Africa is a move from "a culture of authority" to
"a culture of justification - a culture in which every exercise of power is expected to be
justified; in which the leadership given by government rests on the cogency of the case offered
in defence of its decisions, not the fear inspired by the force of its command. The new order
must be a community built on persuasion, not coercion."

The Constitution demands that all decisions be capable of being

substantively defended in terms of the rights and values that it enshrines.
It is no longer sufficient for judges to rely on the say-so of parliament or
technical readings of legislation as providing justifications for their
decisions. Under a transformative Constitution, judges bear the ultimate
responsibility to justify their decisions not only by reference to authority,
but by reference to ideas and values.
This approach to adjudication requires an acceptance of the politics of
law. There is no longer place for assertions that the law can be kept
isolated from politics. While they are not the same, they are inherently
and necessarily linked. At the same time, transformative adjudication
requires judges to acknowledge the effect of what has been referred to
elsewhere as the "personal, intellectual, moral or intellectual preconcep-
tions" 11 on their decision-making. We all enter any decision with our own
baggage, both on technical legal issues and on broader social issues.
While the policy under apartheid legal culture was to deny these
influences on decision-making, our constitutional legal culture requires
that we expressly accept and embrace the role that our own beliefs,
opinions and ideas play in our decisions. This is vital if respect for court
decisions is to flow from the honesty and cogency of the reasons given for
them rather than the authority with which they are given.
So far I have referred to two basic ideas of transformation: economic 12
transformation and a change in legal culture. Some critical scholars
have offered a third conception that builds on, but also goes beyond the
first two. For them, the traditional metaphor of a bridge is misleading as

acknowledges that there are patterns of systemic advantage and disadvantage based on race and gender
that need expressly to be faced up to and overcome if equality is to be achieved. In this respect, the
context in which the measure operates, the structures of advantage and disadvantage it deals with, the
impact it has on those affected by it and its overall effect in helping to achieve a society based on
equality, non-racialism and non-sexism, become the important signifiers." (per Sachs J).
10"A Bridge to Where? Introducing the Interim Bill of Rights" 1994 10 SAJHR 31 32.
" Moseneke 2002 18 SAJHR 309 317.
12 See, eg, Botha "Metaphoric Reasoning and Transformative Constitutionalism (Part 1)" 2002 TSAR

612, "Metaphoric Reasoning and Transformative Constitutionalism (Part 2)" 2003 TSAR 20; Le
Roux "Bridges, Clearings and Labyrinths: The Architectural Framing of Post-Apartheid Constitu-
tionalism" 2004 19 SAPL 629; Van der Walt Law and Sacrifice (2005).
 STELL LR 2006 3

it seems to suggest that transformation is a temporary event, that at some

point we will reach the other side of the bridge. Transformation then ends
because we have reached our desired destination. According to Van der
Walt, 3
"[i]n this vision of transformation there is no longer room for imagining that things could be
different, that there might be further options and more complex alternatives to the two places
between which we have chosen to choose".

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. There is no preference for one side over the other,
rather, the value of the bridge lies in remaining on it, crossing it over and
over to remember, change and imagine new and better ways of being.
On that view, 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. Transforma-
tion is a permanent ideal, a way of looking at the world that creates a
space in which dialogue and contestation are truly possible, in which new
ways of being are constantly explored and created, accepted and rejected
and in which change is unpredictable but the idea of change is constant.
This is perhaps the ultimate vision of a transformative, rather than a
transitional Constitution. This is a perspective that sees the Constitution
as not transformative because of its peculiar historical position or its
particular socio-economic goals but because it envisions a society that
will always be open to change and contestation, a society that will always
be defined by transformation.
This conception of transformation reminds me of the old Nissan
slogan: "Life's a journey. Enjoy the ride." What the slogan tells us is that
we should enjoy the driving itself rather than seeing it merely as a means
to arrive at a destination. What Van der Walt is telling us is that we
should promote and sustain transformation itself, rather than view it
merely as a means to construct a new society.

4 Challenges
Let me now, finally, turn to the main theme of this address: the
challenges facing transformative constitutionalism in South Africa. Many
of the challenges are inter-related. Taken together they create a
substantial impediment to the realisation of our constitutional dream.
My list is by no means conclusive. There are many others and many more
that will arise only in the future. However, these are to my mind the most
pressing obstacles at the moment.

13 "Dancing with Codes - Protecting, Developing and Deconstructing Property Rights in a

Constitutional State" 2001 118 SALJ 258 296.
TRANSFORMATIVE CONSTITUTIONALISM

4 1 Access to equal justice

I have already mentioned that one of the central tenets of
transformative constitutionalism is a commitment to substantive equality
and improving socio-economic conditions. It is no surprise then that
perhaps the biggest obstacle to attaining a truly transformative
constitutionalism is the continuing disparities of wealth and power that
pervade our country. I do not, however, wish to focus on that aspect, we
are all well aware of the extent and seriousness of these problems. I prefer
to confine myself to one specific symptom of this inequality: access to
justice. Kofi Annan, the Secretary General of the United Nations,
recently wrote the following about the necessity of protecting the rule of
law and access to justice:
"The United Nations has learned that the rule of law is not a luxury and that justice is not a
side issue. We have seen people lose faith in a peace process when they do not feel safe from
crime. We have seen that without a credible machinery to enforce the law and resolve disputes,
people resorted to violence and illegal means. And we have seen that elections held when the
rule of law is too fragile seldom lead to lasting democratic governance. We have learned that
the rule of law delayed is lasting peace denied, and that justice is a handmaiden of true peace.
We must take a comprehensive approach to Justice and the Rule of Law. It should encompass
the entire criminal justice chain, not only police, but lawyers, prosecutors, judges and prison
officers, as 14
well as many issues beyond the criminal justice system. But a 'one-size-fits-all' does
not work."'

South Africa has its own unique problems when it comes to access to
justice. In the face of high levels of crime, the criminal justice system faces
a serious challenge to ensure that victims have the satisfaction of knowing
that those who harmed them or their loved ones are brought to justice.
Legal representation remains beyond the financial reach of many South
Africans and it is true that more money ensures better representation.
That is not equal access to justice and the challenge we face is what
strategies we should adopt to rectify the position. The Constitution
should not become a tool of the rich. Equal justice means that the fruits
of justice are there for all to enjoy. The provision of equal access to justice
is therefore a priority in reaching our transformative goal.

42 Legal education
The next challenge I see to transformation is in the sphere of legal
education. The way we teach law students and the values and
philosophies we instil in them will define the legal landscape of the
future. Most of us here today are familiar with a traditional legal
education that focuses predominantly on private and commercial law and
rewards the rational deduction of inevitable conclusions from unques-
tionable principles. That is how we were taught and it is a vital part of
any lawyer's arsenal. We would be failing in our duty to both the students
and the public if we did not pass on the tradition of analytical argument

14United Nations Development Program Access toJustice: Practice Note (2004) 2.

 STELL LR 2006 3

and a full knowledge of the legal principles that govern everyday human
interaction and form the main part of a lawyers work.
However, that education is no longer enough. We can no longer teach
the lawyers of tomorrow that they must blindly accept legal principles
because of the authority. No longer can we responsibly turn out law
graduates who are unable to critically engage with the values of the
Constitution and who are unwilling to implement those values in all
corners of their practices. A truly transformative South Africa requires a
new approach that places the Constitutional dream at the very heart of
legal education. It requires that we regard law as part of the social fabric
and teach law students to see it as such. They should see law for what it is,
as an instrument that was used to oppress in the past, but that has that
immense power and capacity to transform our society.
Much has been done to bring legal education in line with these ideals.
Constitutional and human rights law now form a much greater part of
the curriculum and the vast majority of courses and text-books on
traditional private or commercial areas devote sections to the impact of
the Constitution on that field of law. However, we must be careful that
the influence of the Constitution does not become simply another set of
cast-in-stone legal principles. The change to legal education is a change in
mind-set, not simply a change in laws.

43 Legal culture
But what of the existing legal community that has already received
their legal education and training? In his article "Legal Culture and
Transformative Constitutionalism",' 5 Klare highlights what he terms the
inherent conservatism of South African legal culture and he compares it
with what he believes it should be. "Conservatism" in this context applies
to a jurisprudential approach, not a political outlook. When he talks
about "legal culture", Klare is referring to "the professional sensibilities,
habits of mind and intellectual reflexes" of lawyers or those ingrained
ideas about how the law works and what arguments are and are not
convincing. Our recourse to this culture is often subconscious as it is such
a basic part of how we approach legal problems.
According to Klare, 16 there is a tendency to follow a formalistic or
technical approach to law. He sees this approach to legal interpretation
as "highly structured, technicist, literal and rule-bound" as opposed to
the "policy-oriented and consequentialist" approach that he favours. A
number of other scholars 17 have written about what they see as the
conservatism of South African legal culture and argue that it is still based

"51998 14 SAJHR 146.

'6 1998 14 SAJHR 146 168.
17See, eg, Botha "Freedom and Constraint in Constitutional Adjudication" 2004 20 SAJHR 249; Van
der Walt "Tradition on Trial: A Critical Analysis of the Civil-Law Tradition in South African
Property Law" 1995 11 SAJHR 169.
TRANSFORMATIVE CONSTITUTIONALISM

on formal rather than substantive legal reasoning. This formal reasoning

prevents an inquiry into the true motivation for certain decisions and
presents the law as neutral and objective when in reality it expresses a
particular politics and enforces a singular conception of society.
Froneman 18 refers to this as a "delusional danger" and states that it
has not been wiped away by the advent of the new Constitution. The
Constitution, like any law, can be interpreted formally and thus allow
judges to avoid engagement with substance and evade the search for
justice.
Let me, however, make two important caveats. First, not all South
African lawyers are guilty of the conservatism and formalism they seem
to be accused of. Indeed, much of the resistance to apartheid was built on
the idea that, to be enforceable, laws must be substantively just. That
spirit still inspires many lawyers and judges and they continue to play an
incredibly invaluable part in taking us forward in constitutional
interpretation. Secondly, there is much to be said for sticking to the
rules when they are clear and good. It is when adherence to the word is
taken too far, when the upholding of a law obscures or ignores that law
exists to try, however difficult, to ensure justice, that formalism becomes
dangerous.
It is this type of conservative or formalist approach to law that is
inconsistent with a transformative Constitution. At the heart of a
transformative Constitution is a commitment to substantive reasoning, to
examining the underlying principles that inform laws themselves and
judicial reaction to those laws. Purely formalist reasoning tends to avoid
that responsibility.
However, while it is vital that we embrace the idea of substantive
adjudication, there is a distinct limit as to how far we can go. Judges do
not have a free rein to determine what the law is. Laws, including the
Constitution, do not mean "whatever we wish them to mean".' 9 This
limit on judicial law-making is encapsulated in the idea of the separation
of powers. The Constitution itself entrenches the notion of different roles
for the different arms of Government: the legislature makes the law, the
judiciary interprets the law and the executive enforces the law. Were the
courts to completely discard any adherence to the text they would enter
squarely into the domain of the legislature as creators rather than
interpreters of the law. That is clearly not what the Constitution
envisages.
This is not to suggest that the courts have no law-making
responsibility. Upholding the transformative ideal of the Constitution
requires judges to change the law to bring it in line with the rights and
values for which the Constitution stands. The problem lies in finding the
fine line between transformation and legislation. Overly activist judges

18"Legal Reasoning and Legal Culture: Our 'Vision of Law' 2005 16 Stell LR 1.
19Mistry v Interim National Medical and Dental Council of South Africa 1998 7 BCLR 880 (CC) par 49.
 STELL LR 2006 3

can be as dangerous for the fulfilment of the constitutional dream as

unduly passive judges. Both disturb the finely-balanced ordering of
society and endanger the ideals of transformation.

44 Responsibility for transformation and reconciliation

From this it follows that transformation is not the responsibility that
must be borne by the courts alone - it is a task for all three arms of
Government to perform in partnership. Widespread transformation of
economic and social conditions is beyond the powers of the courts alone.
Only when our judicial commitment is coupled with legislative reform
and appropriate executive action can the vast disparities that continue to
exist in South Africa be eradicated.
Finally, transformation is not something that occurs only in court-
rooms, parliaments and governmental departments. Social transforma-
tion is indispensable to our society. In South Africa - it is synonymous
with reconciliation. If there is no reconciliation between the people and
groups of South Africa we will simply have changed the material
conditions and the legal culture of a society that remains fractured and
divided by bitterness and hate.
That is what the late Chief Justice Mahomed had in mind when he
wrote that if certain steps are not taken,
"both the victims and the culprits [of apartheid) who walk on the 'historic bridge' described by
the epilogue [to the interim Constitution] will hobble more than walk to the future with heavy
and dragged steps, delaying and impeding a rapid and enthusiastic transition to the new society
at the end of the bridge".20

Reconciliation and forgiveness are beyond the power of the law. We

cannot legislate reconciliation and we cannot order forgiveness. In his
recollections on the TRC, Borraine writes that he agrees with Einstein's
pronouncement that "as long as there will be man, there will be war".
"Nevertheless," Borraine continues, "I still believe that goodness and
beauty, compassion and new beginnings, can triumph over the evil which
seems to be all-pervasive." This hope stems "from the courage and
generosity of spirit of those South Africans who had been hurt the most
and who had been regarded and treated as less than human" but had
"expressed their willingness to forsake revenge and commit themselves to
forgiveness and reconciliation. It is this truth that gives me hope for the
future."
I should not be understood as saying that all those who were wounded
by apartheid must forgive. Many cannot forgive and we cannot fault
them for that. There is no right way to deal with the immense violation
that was apartheid. But, as a society, we must keep alive the hope that we
can move beyond our past. That requires both a remembering and a

2o Azanian Peoples Organisation(AZAPO) v President of the Republic of South Africa 1996 4 SA 671
(CC) par 18.
TRANSFORMATIVE CONSTITUTIONALISM

forgetting. We must remember what it is that brought us here. But at the

same time we must forget the hate and anger that fuelled some of our
activities if we are to avoid returning to the same cycle of violence and
oppression.

45 Creating a climate for reconciliation

There is a final point I wish to make on this score. The call for
reconciliation is not only for the ears of the victims of apartheid, it is
equally important that those who benefited from apartheid take
responsibility for creating a climate in which forgiveness, and ultimately
reconciliation is possible. Mamdani 2' has written about the distinction
between a narrow political reconciliation between victim and perpetrator
and a broader and lasting social reconciliation of the entire nation. He
describes the need for that distinction as follows:
"Where the focus is on perpetrators, victims are necessarily defined as the minority of political
activists; for the victimhood of the majority to be recognized, the focus has to shift from
perpetrators to beneficiaries. The difference is this: whereas the focus on perpetrators fuels the
demand for justice as criminal justice, that on beneficiaries would shift focus to a notion of
justice as social justice. ?A focus on power that links power to privilege links perpetrator to
beneficiary, racialized power to racialized privilege, and puts at center-stage the relationship
between beneficiary and victim as the majority. To recognize this difference is, I think, key to
thinking through how to make the reconciliation durable."

Social reconciliation does not mean that we increase the blame on the
beneficiaries of apartheid. What it does recognise and require is that
beneficiaries take responsibility for ensuring that reconciliation is
possible. Beneficiaries cannot stand on the sidelines as having no role
to play in reconciliation as they do not need to forgive or be forgiven. All
South Africans, beneficiaries, victims and perpetrators, must work
together to create a climate of reconciliation. There are many ways to
foster that climate: through public dialogue, art and music. But the most
effective manner to summon the rain of forgiveness is, as Mamdani notes,
through social justice which must include a levelling of socio-economic
conditions. Reconciliation therefore supplements, but also requires an
improvement of socio-economic conditions. Creating a climate for
forgiveness as one of our national projects means that no one takes
forgiveness for granted. It can never be a one-sided exercise. That is why I
believe that national reconciliation cannot be divorced from the
reconstruction of the socio-economic conditions of the country. The
responsibility for that, however, goes beyond the Government of the day.
It is, as I have indicated, a national project - for all of us.

5 Conclusion
These then are the challenges that I see facing transformative

21 When Does Reconciliation Turn into a Denial of Justice? (1998) 14.

360 STELL LR 2006 3

constitutionalism: access to equal justice, legal education, legal culture,

maintaining the separation of powers while ensuring that all arms of
Government work together, and reconciliation. Can we overcome these
dilemmas? I do not know. But I take solace in the idea that perhaps
rather than obstacles, these factors can be viewed as enabling conditions
for transformation. For as long as they exist there will be a drive to
overcome them, there will be a tension that keeps alive the idea that
things can be different. When all the challenges are gone, that is when the
real danger arises. That is when we slip into a useless self-congratulatory
complacency, a misplaced euphoria that where we are now is the only
place to be. That is when we stop dreaming, imagining and planning that
things could be different, could be better. That, for me, is the true
challenge of transformation.