Exam (elaborations)
IRM1501 Assignment 1 YEAR 2024 SEM 2
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- University Of South Africa (Unisa)
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INTRODUCTION TO RESEARCH METHODOLOGY (IRM1501)
ASSIGNMENT 1
Q1
The 1993 Interim Constitution,1 talks metaphorically about a historic link and describes it
as a bridge, between the past of a deeply divided society marked by strife, conflict,
untold suffering, and injustice, and a future founded on human rights, democracy,
peaceful coexistence, and development opportunities for all South Africans, regardless
of colour, race, class, belief, or sex. This signifies a change that’s taking place, rectifying
the ills of the past and making a fair and more conducive society for all regardless of
race, colour, sex and all, thus changing the society politically, socially and economically.
South Africa is coming from an era of past ills which gave recognition and support for
apartheid. In the apartheid era which was comprised of a tricameral parliament which
only realized the rights of only three races: white, Indian and coloured and secluded the
black majority. So many injustices took place against the least favoured race and then
with the advent of the constitution which brought about a constitutional era which
brought about change and transformation into the republic. Thus transformative
constitutionalism is the transfer of the republic from the past apartheid era to a
constitutional democracy.
Klare states that transformative constitutionalism refers to the following: A long-term
project of constitutional enactment, interpretation, and enforcement committed (not in
isolation, of course, but in a historical context of conducive political development) to
transforming a country’s political and social institutions and power relationships in a
democratic, participatory, and egalitarian society. 2
It concerns social or communal adjustment. This is the case because it involves a
combined and serious promise to transform society in a more significant manner. The
latter undertaking to transform must be done in a manner that induces “large-scale
social change through non-violent political processes (that are) grounded in law”.
1
Constitution of the Republic of South Africa, Act 200 of 1993.
2
Klare K, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human
Rights 146.
, Transformative constitutionalism is founded or has its basis in the Constitution. By its
design and nature, the Constitution is transformative in various ways. Transformative
constitutionalism is defined as an idea of attempting to remedy the ills of the past and
directing us on a path to a better future.3 Transformative constitutionalism is founded or
has its basis in the Constitution. By its design and nature, the Constitution is
transformative in various ways. Langa states that the Constitution is different from the
constitutions of other countries in that: It represents a decisive break from, and a ringing
rejection of, that part of the (apartheid) past which is disgracefully racist, authoritarian,
insular, and repressive and a vigorous identification or commitment to a democratic,
universalistic, caring and inspirationally egalitarian ethos, expressly articulated in the
Constitution.4
The term “transformative constitutionalism” refers to the idea that the Constitution drives
the process of social and economic transformation by providing for measures to
address past injustices and inequalities.5 Some of these measures include affirmative
action, socioeconomic rights protection, and the prohibition of unfair discrimination. The
author,6 also mentions transformative justice, which entails transformative measures
taken to eliminate past social and economic injustices, encapsulate (express) the theory
of restorative justice. Reconciliation, rather than retribution (punishment), is the focus of
restorative justice in addressing the injustices of the past dispensation.
In Soobramoney v Minister of Health, KwaZulu-Natal it was stated that the new
constitutional order is based on a commitment to transform our society. 7 The vision of
the Constitution is to create a South Africa that is based on democratic values, social
justice and fundamental human rights. The judiciary’s role in South Africa during era the
of apartheid and after the advent of the new constitutional era. It clearly shows how it is
following transformative constitutionalism. In addition, the Constitution enjoins everyone
3
https://www.sun.ac.za/english/learning../itl...transformation%20constitutionalism.
4
S v Makwanyane and Another 1995 (3) SA 391 (CC).
5
Humby T and others, Introduction to Law and Legal Skills in South Africa (Oxford University Press
Cape Town 2012) 39.
6
Humby and others, Introduction to Law and Legal Skills 39.
7
Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC), 1997 12 BCLR 1696
(CC).
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