QUESTION 1 With relevant decided cases, discuss transformative constitutionalism
and identify three basic principles of transformativeconstitutionalism. (6 MARKS)
1. Case: Grootboom v Oostenberg Municipality (2000) (So
...
QUESTION 1 With relevant decided cases, discuss transformative constitutionalism
and identify three basic principles of transformativeconstitutionalism. (6 MARKS)
1. Case: Grootboom v Oostenberg Municipality (2000) (South
Africa):
• Principle: Socio-economic rights as justiciable. The
Grootboom case in South Africa is often cited as an example of
transformative constitutionalism. The Constitutional Court held
that the right to have access to adequate housing, as
enshrined in the South African Constitution, is justiciable. The
court emphasized the state's positive duty to take reasonable
legislative and other measures within its available resources to
ensure the progressive realization of the right to housing.
2. Case: Mazibuko v City of Johannesburg (2010) (South
Africa):
• Principle: Participatory democracy and access to basic
services. In this case, the court addressed the issue of
prepaid water meters affecting access to water for low-income
households. The court stressed the importance of participatory
democracy, emphasizing that local government decisions
affecting access to basic services must involve meaningful
consultation with affected communities. This reflects the
transformative principle of ensuring marginalized groups are
actively involved in decision-making processes.
3. Case: Kesavananda Bharati v State of Kerala (1973) (India):
• Principle: Basic structure doctrine and the limitation of
constitutional amendments. While not directly associated
with transformative constitutionalism, the Kesavananda
Bharati case in India introduced the concept of the "basic
These cases illustrate three basic principles of transformative
constitutionalism: the justiciability of socio-economic rights, the
importance of participatory democracy in decision-making, and the
safeguarding of core constitutional principles through limitations on
amendments. Transformative constitutionalism aims to promote
social justice, equality, and human dignity through the interpretation
and application of constitutional norms.
Transformative constitutionalism refers to an approach to constitutional
interpretation and application that seeks to advance the transformation of
society by addressing historical injustices, promoting social inclusion, and
advancing substantive equality. It is particularly relevant in post-colonial and
post-apartheid contexts, where there is a need to redress past injustices and
build a more inclusive and equitable society. Here are three basic principles
of transformative constitutionalism, illustrated with relevant decided cases:
Answer 2
1. Historical Justice and Redress: Transformative constitutionalism
emphasizes the importance of addressing historical injustices and ensuring
redress for past wrongs. One landmark case illustrating this principle is
Minister of Finance v Van Heerden (2004), heard by the Constitutional Court
of South Africa. In this case, the court held that the government's policy of
excluding domestic workers from the Compensation for Occupational Injuries
and Diseases Act was unconstitutional because it perpetuated historical
discrimination against black women, who were disproportionately employed
as domestic workers during apartheid. The decision highlighted the
importance of redressing past injustices in building a more inclusive society.
2. Substantive Equality: Transformative constitutionalism prioritizes
substantive equality over formal equality. This means that the focus is not
merely on treating everyone the same, but on addressing underlying
inequalities and ensuring that everyone has equal opportunities and
outcomes. An example of this principle can be found in Government of the
Republic of South Africa v Grootboom (2000). In this case, the Constitutional
Court held that the government's failure to provide adequate housing to
indigent people violated their constitutional rights to dignity and equality.
The court emphasized that substantive equality requires proactive measures
to address poverty and inequality, rather than just formal legal equality.
structure doctrine." This principle holds that while the
constitution can be amended, the amendments cannot alter its
basic structure or core principles. This limitation helps preserve
fundamental rights and principles, preventing arbitrary
changes that could undermine the transformative goals of the
constitution
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