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IRM1501EXAM
PACK
2023
,IRM1501
Assignment PACK
2018-2021
Tut201 Letters
Questions. Answers
, IRM1501/202/1/2021
3. FEEDBACK ON ASSIGNMENTS 01
QUESTION ONE
Define empirical research and refer to examples where necessary. [2 marks]
Answer
Empirical research is a method of research that is referred to as ‘document - based research’. For
example, sources such as case law, articles and books are used to conduct research in an attempt to
find a solution.
It is also referred to as desktop research because the researchers use computers to read cases, article
and online books to determine the gap in law.
QUESTION 2
Discuss the notion of ‘Ubuntu’ with reference to transformative constitutionalism, case law and
jurisprudence in your answer.
Answer
Ubuntu vs Transformative Constitutionalism
The notion of Ubuntu is defined as humanity.1 The courts and authors categorize Ubuntu as one of the
values that are entrenched in the Constitution. 2 Transformative constitutionalism is intertwined with
Ubuntu.3 Langa J describes it as "the meaning of transformation in juridical 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.
Langa J further suggests that transformative constitutionalism is best defined as:
1 Kroeze IJ “Once More Ubuntu: A reply to Radebe and Phhoko” 2020 PER 1727-3781.
2 S v Makwanyane and Another 1995 (3) SA 391; Geduld AJN uBuntu as a constitutional value: A social justice
perspective (LLD Thesis 2020, North-West University) 1-258.
3 Geduld uBuntu as a constitutional value: A social justice perspective 1-258.
3
, IRM1501/202/1/2021
"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 opportunities for all South Africans, irrespective of
colour, race, class, belief or sex".4
According to Langa J, ‘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’. 5 The notion of Ubuntu applies in human rights, 6 as well as other fields of law such as
the law of contract.
Important aspects of Ubuntu and Transformative Constitutionalism
South Africa’s Constitution is recognized 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. Thus, Professor Karl
Klare formulated the notion of transformative constitutionalism, given the country’s system of
constitutional supremacy and the Constitution’s values. Since its inception, TC effectively embedded
its inherent importance in various constitutional law and constitutionalism discourse. 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.
The Constitutional Court in more than one case expressed the significance of linking Ubuntu with
transformative constitutionalism. For example, in S v Makwenyane the Constitutional Court introduced
the concept of ‘Ubuntu’ for the first in the history of South African law. 7 This court illustrated the fact
that the infringement of the right to dignity goes against the notion of Ubuntu. In addition, cruel and
degrading treatment destroys the notion of Ubuntu. 8 In another Constitutional Court case Everfresh
9 the Constitutional Court affirmed that it is crucial
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
to accept and recognize the notion of Ubuntu in light of transformative constitutionalism. The facts of
4 Langa P “Transformative Constitutionalism” 2006 Stellenbosch Law Review (17) 351.
5 Langa 2006 Stellenbosch Law Review 352. See also Corder H, Federico V & Orrù R The Quest for
Constitutionalism – South Africa since 1994 (Routledge: London 2016) 5-17.
6 Hutchison A “Good Faith Contract: A unique South African Perspective” 2019 Journal of
Common Wealth Law 227-271.
7 S v Makwanyane and Another 1995 (3) SA 391.
8 S v Makwanyane 26, 5, 225 and 227.
9 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC).
4
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