Transformative Constitutionalism in South Africa: Creative Uses of Constitutional Court Authority to Advance Substantive Justice

Abstract

Generous rights interpretation, expansive remedial power, broad jurisdiction and permissive access rules are the tools of the South African Constitutional Court that allow it to serve the transformative goals of the post-apartheid Constitution. The Court's procedural and interpretive characteristics empower it to serve as the pinnacle institution of a country committed to transformative constitutionalism and substantive justice. The Constitutional Court is, of course, not sufficient for the task of national transformation – no court or judicial system could be – but its willingness to experiment with its authority is a lesson for all courts.

What is already evident is that the recent South African cases discussed in this article highlight the opportunities for genuine justice and social welfare available to a court that responds creatively to the call for justice and employs all of its tools to build a more just society. As the Court uses these tools – in conjunction with its extensive textual protections of civil and political and socio-economic rights –  it is more empowered than typical national courts but it is also more capable of educating other courts of their capacity to advance substantive justice in their own countries.

Keywords: South Africa, Transformative Constitutionalism, Constitutional Court, Social Welfare Rights, Purposive Interpretation