Introduction

A constitution refers to the fundamental laws, conventions, rules and regulations which stipulate how a
country is governed. For a constitution to be regarded as transformative, it must be the supreme law of the
country and aim to build a country that adopts social justice and substantive justice in social, economic
and political realities. This system may be referred to as transformative constitutionalism. This is a
method of ensuring that all laws and conduct in the country are in accordance with the constitution as the
supreme law. This is the case in our country and I am going to attempt to prove how the South African
Constitution is transformative in nature by identifying the changes that have occurred and comparing the
present with the past.

Provisions in the current South African Constitution

The preamble of our Constitution sets the tone for transformation. It offers a passage from the past of a
deeply divided society characterized by racism and inequality into one that is based on democracy, social
justice, equality, dignity and freedom. The aim is to mend the divisions of the past and build a united
society in which all the people are equal. Basically, the Constitution strives to end white people’s
supremacy and domination over black people, as was the case in the apartheid era, by affording everyone
equal rights and protection of the law.

Also, our Constitution is founded on, inter alia, the concept of equality. However, in the past there was no
equality whatsoever. White dominance prevailed and black people were oppressed. The law was not
applied equally. In this day, everyone is equal before the law. Blacks now enjoy equal rights with the
whites. Even those in authority are subject to the law to ensure that they don’t abuse the powers invested
in them. This means that we cannot talk about transformative constitutionalism without including the rule
of law, for the rule of law goes hand in hand with equality. The rule of law is the principle that law should
govern a country, unlike a country being governed by decisions of individual government officials. It
basically refers to the influence and authority of the law within a society, specifically as a restriction upon
conduct, including conduct of government officials. Rule of law implies that everyone is subject to the
law including lawmakers, law enforcement officials, judges and of course government officials. It stands
in contrast to ‘rule by law’ where those in authority are held above the law. Under the rule of law, the law
is applied equally amongst all the people forming part of the society irrespective of their status, gender
and race. Rule by law on the other hand is characterized by the unequal application of the law whereby
the law is use as an oppressive tool by those in power, which is what happened during the apartheid era,
hence the current Constitution introduced the rule of law. Authority for the rule of law can be found in the
case of Masetlha v President of the Republic of South Africa where the presiding officers held that the
President of the country is also bound by the rule of law and must act in such a manner as not to deviate
from the principle of the rule of law, and ultimately the Constitution. Accordingly, it may be said that
transformative constitutionalism in South Africa includes the destruction of the formal structures of
apartheid, the direct targeting and ultimate elimination of the social structures that promote and reinforce
inequality.

Though already mentioned in the introductory paragraph, it is worth reiterating that constitutional
supremacy is central to transformative constitutionalism. Section 2 of the Constitution provides for the
supremacy of the Constitution. The case of S v Makwanyane and Another serves as authority for
constitutional supremacy. In casu the death penalty was abolished as the provisions for the sentence under
the Criminal Procedure Act were deemed to be in conflict with the Constitution. This is contradictory to
the past when the death penalty was allowed as back then, the laws enacted by Parliament were supreme.
The decision in S v Makwanyane and Another was influenced by the provision in the Constitution which
stipulates that everyone has the right to life. In other words, subjecting someone to the death penalty
would be violating that individual’s right to life, meaning it would be unconstitutional. This is the case
because transformative constitutionalism requires all laws and conduct to abide by the Constitution.

The Bill of Rights in the Constitution also plays an integral role in transformative constitutionalism.
Section 7 provides that the state has a duty to respect, protect, promote and fulfill the rights in the Bill of
Rights. Section 8 goes further to make it clear that sometimes the Bill of Rights will not only apply to the
state but will also bind the private actor and legislation. One right, in particular, that is contained in the
Bill of Rights which I would like to discuss in detail is under section 19 (3) (a). It stipulates that every
adult citizen has the right to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret. This right is in violation with the apartheid laws which limited the
voting rights of black people and thus fuels the principle of transformative constitutionalism. The South
African voting system during the apartheid era was a broken one. Black people were segregated and
consequently denied their citizenship and political rights. As a result, the voting system gave the country a
government that did not have majority support. Through the current provision in relation to political
rights, the Constitution aims to mend the old and broken voting system.
Case law that shows transformative constitutionalism

Case 1: National Coalition for Gay and Lesbian Equality v Minister of Justice

Relationships between same-sex partners were strictly forbidden under common law. Section 20 of the
Sexual Offences Act 23 of 1957 embodied the common law position of sodomy (sexual relationship
between two men) and the criminalization thereof. Sodomy was also included as a Schedule 1 item in the
Criminal Procedure Act 51 of 1977. Furthermore, sodomy was also made an item in the Schedule of the
Security Officers Act 92 of 1987. All this legislation were enacted before the democratic era in the
country. National Coalition for Gay and Lesbian Equality questioned the constitutionality of the common
law and these statutes in relation to sodomy. The Constitutional Court declared the common law offence
of sodomy and the above statutory criminalization thereof unconstitutional. The Constitutional Court held
that to criminalize sodomy in was to discriminate against gay men based on a ground listed in section 9
(3) of the Constitution. Furthermore, the court ruled that it is not justified to criminalize sodomy in an
open and democratic society based on human dignity, equality and freedom. As a result, sexual
relationships between men were legalized.

Case 2: National Coalition of Gay and Lesbian Equality v Minister of Home Affairs

Six South African citizens applied for their same-sex partners who were not South Africans to be awarded
immigration permits for South Africa, in terms of the Aliens Control Act 96 of 1991. Section 25 (5) of
that Act allowed for the issuing of such an immigration permit to a spouse of a South African citizen. The
same-sex partners were not married to each which meant they were not spouses, and accordingly, the
Department of Home Affairs refused the application. The applicants made an appeal to the Constitutional
Court, challenging the constitutionality of the legislation. The Constitutional Court found the provision in
the Aliens Control Act to be in conflict with the constitutional right to equality, and discriminating against
the applicants based on the grounds of sexual orientation and marital status. The Constitutional Court also
found that the provision violated the applicants’ right to dignity. As such, the application was successful
and the Aliens Control Act 96 of 1991 has since been repealed by the Immigration Act 13 of 2002 which
affords life partners equal rights.
Case 3: Du Toit and Another v Minister of Welfare and Population Development

In this case, a lesbian couple had been living together since 1989 in a same-sex life partnership. Thy
qualified to adopt two children, but they could not jointly adopt the children because the legislation (Child
Care Act 74 of 1983) provided that a joint adoption is only available to a married couple. This meant that
only one of the same-sex couple could adopt the two children and in terms of the Guardianship Act, she
was the sole guardian. The same-sex couple challenged the constitutionality of the legislation. They
argued that it discriminated against them based on sexual orientation and marital status, and undermined
their dignity, thus infringing their constitutional rights. Because this case involved children, the
Constitutional Court accordingly highlighted the best interests of children in matters such as these, and
the protection of children’s rights in section 28 of the Constitution. As such, the relevant provisions in the
Child Care Act and Guardianship Act were declared to be unconstitutional because they discriminated
against same-sex life partners, they did not recognize the dignity of a same-sex life partner to parenthood
and further did not serve the best interests of children. The same-sex partners were then allowed to jointly
adopt the children.

Case 4: Minister of Home Affairs v Fourie

The common law definition of marriage was challenged, the heterosexual marriage that excludes same-
sex couples. Furthermore, section 30 (1) of the Marriage Act 25 of 1961 (also known as the marriage
formula) which refers to the parties involved in the marriage ceremony as “husband” and “wife’’ was also
challenged. The Constitutional Court said that to give same-sex couples would not take away the freedom
that heterosexual couples have to marry according to their religion. The Constitutional Court found that
the common law definition of marriage and the provisions of section 30 (1) of the Marriage Act 25 of
1961 were inconsistent the constitutional guarantees of equality of equality and dignity. As a result, the
Civil Union Bill was drafted and followed by the Civil Union Act 17 of 2006. Same-sex marriages are
now legalized.

These four cases go to show our Constitution’s commitment to correct the injustices of the past and
ensure that all the people are afforded equal protection and recognition by the law. Equality and the rule
of law appear to be at the forefront of transformative constitutionalism.
Conclusion

I believe the content of my work is sufficient to prove the transformative nature of the South African
Constitution. However, I acknowledge that I probably might have left some concepts regarding the
principle of transformative constitutionalism as time and space do not allow for a detailed considerations
of all the issues relating to this subject. For this reason, it is of importance to note that I, in no way, do not
claim that the phenomenon of transformative constitutionalism is only restricted to the concepts I have
covered in my world. What’s primarily important is the comparison of the present and the past, and the
highlighting of some of the main provisions in the current Constitution to help shed some light on the
issue of transformative constitutionalism. This helps to portray a picture of the Constitution as a pathway
from the apartheid era characterized by divisions and inequality to a society founded on unity and
equality.

PLAGIARISM DECLARATION

I, Kagiso Collen Motswi (Student No 17003105), do hereby declare that this assignment for CAL 2541 at
University of Venda, School of Law, is my own submission. This work has not previously been submitted
at this or any other University, for any degree. This assignment is my own work in design and execution
hence all references made therein have been duly acknowledged.

Signed