Transformative Constitutionalism and the Judiciary

Constitutional Court, Supreme Court of Appeal, High Court of South Africa

Chief Justice

Bloemfontein

High Courts

In parliamentary sovereignty, the ultimate authority for law-making lies with the legislature, while in constitutional supremacy, it lies with the constitution of a state.

The rationale is to ensure that major decisions taken by those in power can be checked by and held to account by another arm of state, thus keeping power in check.

Transformative constitutionalism is a key feature of the South African Constitution that seeks to transform the country from its deeply divided, unequal past into a society founded on equality, dignity, and freedom.

Constitutional supremacy implies that the rules in a Constitution both establish and constrain the exercise of state power, and a state can only act in terms of its Constitution. If it exceeds the bounds of the Constitution, its conduct is legally invalid.

rejection of the principle of parliamentary sovereignty, rule of law, control of public power, judicial review of legislation and testing of conduct against the Constitution

judicial authority vests in the courts, courts must be independent and impartial and subject only to the Constitution, provides a guarantee against the interference with the functioning of courts, provides that organs of the state must assist with ensuring the independence of the courts, provides that an order of courts binds all persons, the chief justice is the head of the judiciary

The judgment established the key features of the South African Constitution, including the rejection of parliamentary sovereignty, the rule of law, control of public power, and judicial review of legislation against the Constitution.

Knowing the history of the judiciary prior to democracy is important as it helps in understanding the development and evolution of the judicial system. It provides insights into the challenges faced, the principles and values that shaped the judiciary, and the impact of historical events on the present-day judicial practices and doctrines.

Transformative constitutionalism refers to a constitutional framework that aims to bring about social and political transformation through the interpretation and application of the constitution. It seeks to address historical injustices, promote equality, and protect human rights. In the judiciary, transformative constitutionalism guides judges in interpreting the constitution in a manner that promotes social change and advances the rights of marginalized groups.

Decolonization refers to the process of dismantling colonial structures, ideologies, and systems of governance. In the context of the judiciary, decolonization entails challenging and transforming the inherited legal and judicial frameworks that perpetuate colonial legacies and inequalities. The impact of decolonization on the judiciary is significant as it promotes the recognition and protection of indigenous legal systems, cultures, and values. It also seeks to address the biases and power imbalances inherent in colonial legal systems and promote a more inclusive and representative justice system.

Transformative constitutionalism refers to using the law to ensure that society moves towards a better version of itself, focusing on substantive equality and justice, empowering previously excluded segments of society, and maximizing the realization of substantive rights.

Transformative constitutionalism is criticized for obscuring the line between law and politics.

Under the system of parliamentary supremacy, the judiciary functioned as part of the apartheid order by upholding discriminatory and unjust legislation, functioning as mere mechanical interpreters of the law.

Section 174 (2) provides for the need for the judiciary to reflect broadly the racial and gender composition of South Africa when appointing judicial officers.