understanding of transformative constitutionalism. I would .. Transformative Constitutionalism”,’ 5 Klare highlights what he terms the inherent. Transformative Constitutionalism in South Africa: 20 Years of Democracy. Mashele . Thus, Professor Karl Klare formulated the notion of TC. Harvard Law School | Institute for Global Law and Policy┬╗ Uncategorized┬╗ Karl E. Klare | Legal Culture & Transformative Constitutionalism.

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The crux of transformative constitutionalism can be summed up to be centered on the following; It entrenched normative value system and institutional framework that aspires to realize equality. This enabled the right to equality to infuse swiftly in the post constitutional dispensation.

South African Journal of Science, Vol. It requires that the law must treat people in the same manner irrespective of circumstances they may find themselves in Westen, ; De Waal, ; Currie and De Waal, ; Smith and McLaughlin, ; Smith, These factors inherently determine whether equality, both as social value and legal right, has effectively infused into the system, and meaningfully altered the lives of the majority. The role of environmental justice in socio-economic rights litigation.

Perhaps, it is significant to note that the majority of South Africans supported the broader cause of fighting to eliminate apartheid because in principle, they yearned for equality before the law, and that was in accordance with aspirations of safeguarding and advancing preservation of transformatvie worth. The Aristotelian view has transvormative effect of accepting selective equalization and some inequalities to prevail, as long as such does not encumber the ultimate desire of having equality to serve justice even under diverse situations.

In Making Equality Rights Real: In terms of section 9 2the Constitution states that equality necessitates full and equal enjoyment of all other rights and freedom. This it pursues by affirming that a future founded on recognition kagl human rights, democracy and peaceful co-existence and development opportunities for all South Africans irrespective of race, class, colour, belief or sex, is indispensable to the new democratic dispensation Langa, Thus, Aristotle subscribes more to formal equality.

It is written from social, economic and legal perspectives. The Birth of a Constitution.

Phephelaphi Dube: Transformative constitutionalism demands government takes action

In general, Equality Act places a positive obligation on the state, non-governmental organizations, community-based organizations, traditional institutions and all persons to promote equality. De Grunchy, John W. Rightfully, the prominence of the notion of equality has embedded its moral, legal, socio-economic and political significance in society as a guiding tenet of life. International Journal of Educational Constituhionalism, Vol.


It was further shown that South Africa hransformative need a candid exchange and flow of information that kar be utilized to foster subsistence of equality, while halting discrimination in all spectrums of society. Statistics South Africa Therefore, in terms of section 9 3the Constitution places upon everyone, a moral obligation to treat every other person equally and fairly, and not to discriminate unfairly against anyone on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.

Thus, that transition from apartheid to democracy was conceivably an excellent phenomenon, which culminated in a system that would resonate with the spirit and purport of international bill of rights. k,are

This then invokes the need to differentiate mechanisms of differentiating humans; that is, formal and substantive equality. The phraseology of transformative constitutionalism comprises two distinct concepts; transformation and constitutionalism.

Western Liberal Legalism and Its Discontents: Medical Law International, Vol. This is arguably resultant from privatization which has effectively constitutionalixm indigent constitutionalismm in rural communities of access to quality public services. In principle, this encompassed the idea of addressing socio-economic challenges plaguing the majority of previously disadvantaged population groups.

Phephelaphi Dube: Transformative constitutionalism demands government takes action – Project Rise

This constitute a contrivance to ensure that equality provides substance to transformative constitutionalism, as it embodies the hope of transforming the past and present, to build a better future. As argued by Faraday et althe context of this framework illustrates that the notion of equality forms an integral part of the widely cherished rights indispensable for a proper functionality of any constitutional and human rights respecting system.

This it achieved by entrenching human rights philosophy at the bedrock of the Constitution.

Similar problems are widespread with regards to access to quality health care. What is Transformative Constitutionalism? This assists in understanding the practical application of the right to equality and its social impact.

Because South Africa adapted to constitutionalism, it is essential to establish how the transition envisaged effectuating transformation, to fulfill the right to equality among others? Legal Culture and Transformative Constitutionalism. This is perceived to originate from persistent classification of people low, middle and high classa problem which has been compounded by triple challenges of poverty, unemployment and incomparable inequalities.

That is, it seeks to ensure that all persons have equal access to sustainable livelihood, even if it means at the expense of the state. Issues of poverty, unemployment and inequalities are intrinsic social challenges that remain central in determining the nature and extent of access to social services such as education, health care and social justice. This effectively entails that people need money in order to secure quality public service. Towards a decent living level.


While failing to outline a plan after the meeting, the president emphasised that the police had largely acted with restraint towards the protesters. It is for this reason that literature containing essential narratives with regard to the right to equality is transformativs widespread.

Acta Universitatis Danubius. Juridica, Vol 11, No 2 (2015)

Thus, have we succeeded in translating equality into reality? Inclusive education does not mean free education. This entails that the post regime has had to ensure that everyone receives equal protection of the law and is similarly afforded unhindered equal opportunities which otherwise would not have been realized under apartheid. Thus, a theory of equality must find a way of integrating private resources and political power.


In Rembe, Nasila ed. The impact of the African Charter on human and people’s rights and the protocol on the rights of women on the South African Judiciary. It envisaged achieving substantive equality in two ways.

Compounding these yransformative problems is the issue of attitudinal theories, which is somewhat linked with government policy that play a crucial role in determining the fate of equality. This review reflects on equality from moral, legal, political and social perspectives. The apartheid regime embedded widespread systems of political, economic and social discrimination and disenfranchisement Klotz,thereby rendering the right to equality a dispensable theory.

In many respects, SAPS came to be the de facto face of the state, while Higher Education Minister Blade Nzimande made few and far between appearances to resolve the tension, prompting a social media campaign named WhereIsBlade.

This change would be 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 Langa,