IRM1501
ASSIGNMENT 1
SEMESTER 1
DUE DATE: 22 MARCH
2024
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,IRM1501 ASSIGNMENT 1 SEMESTER 1 – 2024
DUE DATE: 22 MARCH 2024
1
, ASSIGNMENT ONE
QUESTION 1
With relevant decided cases, discuss transformative constitutionalism and identify three basic
principles of transformative constitutionalism. (6 MARKS)
A key feature of the Constitution is that it seeks to transform South Africa from its deeply
divided, unequal past into a society founded on equality, dignity, and freedom.
The concept: Transformative Constitutionalism obviously encapsulates two notions –
transformation and constitutionalism, which have been fused into a single notion:
transformative constitutionalism. Three questions immediately come to the fore: what is
transformation, what is constitutionalism, and what does transformative constitutionalism
denote? In simple terms, “transformation” is bringing about change in a structured way –
change for the better. The Merriam-Webster Dictionary defines “transformative” as “causing or
able to cause an important and lasting change in someone or something.”1
“Constitutionalism”, on the other hand, means adherence to a constitutional system of
government. It is the idea often associated with the political theories of John Locke and the
founders of the American republic, that government can and should be legally limited in its
powers, and that its authority or legitimacy depends on it observing these limitations. The late
Chief Justice Langa in his analysis of the definition of transformative constitutionalism,
remarked that
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.2
In essence, it is because constitutionalism, in the context of South Africa, is in itself
transformative. The late Chief Justice, addressing himself to what change is about, mentioned
that it would be the frontrunner in constructing a new legal order, creating equal opportunities
for all and space for dialogue where the idea of change is constant, and embraces social,
economic and legal concerns. Therefore, transformative constitutionalism is thus not an event;
but it is a process.
1
https://www.merriam-webster.com/dictionary/transformative (accessed 17-03-2024).
2
Langa “Transformative Constitutionalism” 2006 Stellenbosch Law Review 351-360 351.
2
