, STUDY UNIT 1
The impact of constitutional principles and values and transformative
constitutionalism on South African business
QUESTIONS AND ACTIVITIES
1) What African values comprises the concept of ubuntu?
o The ability to show compassion
o Social justice and fairness
o harmony and humanity
o Recognising the inter-connectedness of people and the accompanying
responsibilities
o Integrity and ethical behaviour
o Open channels of communications and transparency
o Due process and sensitivity in dealings with one another and other
similar values
2) What is meant by transformative constitutionalism?
Transformative constitutionalism is a long-term project of constitutional
enactment, interpretation and enforcement to transform the country’s
political, legal and social institutions and power relations in a democratic
way. In short, it is the process of adaptation of the common law by infusion
of constitutional values
3) What constitutional principles are important for purposes of South
African business?
Sections 1, 7-10, 36 (limitation clause) and 39(2) of the Constitution is of
relevance in Companies.
The Republic of South Africa is one, sovereign, democratic state founded on
the following values: (a) human dignity; the achievement of equality and the
advancement of human rights and freedoms. (section 1)
One of the purposes of the Companies Act is to promote compliance with
the Bill of Rights (s 7 (a)).
The Constitution determines that the Bill of Rights applies to and is binding
on section 8(2) natural or a juristic person like a company or close
corporation to the extent that it is applicable, taking into account the nature
of the right and the nature of any duty imposed by the right. The court must
in terms of section 8(3) develop the law or restrict its application in terms of
the limitation clause (s 36(1)) to ensure that the law gives effect to a right in
the Bill of Rights.
The values of ubuntu is also reflected in the Constitution. Ubuntu underlies
the building of our constitutional democracy and to develop African
leadership values to be applied in corporations, therefore, is consistent with
the constitutional values.
4) What does ‘Africanisation’ mean?
Renewing the focus on Africa and ensuring that teaching is adapted to
African values, realities and conditions. Africanisation aims to ensure that
people in a particular context such as the community or family in the case of
traditional African societies maintain sound relationships tailored on
accommodating opposing views and conciliating competing interests.
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