D SCHULTZ. 2358620.

SEMINAR 1 – TRANSFORMATIVE
CONSTITUTIONALISM

QUESTION 1

In Grootboom, “minimum core” is introduced as the constitutional obligation imposed on the

government to ensure the enforcement of a minimum requirement of socio-economic rights. As this
case is centred in the Section 26 Right to Adequate Housing, it is argued that a duty lies upon the
government to ensure that while waiting for the implementation of the adequate housing program,
some form of shelter is provided for those who are deprived of such living conditions.

The Constitutional Court rejected this minimum core argument due to the impossibility in
determining what precisely the minimum core is. The complexity of reaching a determination of
such minimum core is established in the impossibility of determining a minimum core for the
progressive realisation of the Section 26 right without first identifying the needs and opportunities
for the enjoyment of such right.

There is not enough information placed before the Constitutional Court to decide on this matter.
Thus, the court requests that if such argument is to be decided on, sufficient information be given.

QUESTION 2

The distinction between Foreign Law and International law is provided for in four provisions within
the Constitution. Section 39(1)(b) sets out the impact of international law on the interpretation of
the Bill of Rights. In terms of this section, a court must consider international law and may consider
foreign law in their interpretations. Further, the Constitution includes a provision stating that the
courts must interpret international law as the law in the Republic, unless it can be found that such a
law is inconsistent with the Constitution or an Act of parliament.

Section 39(1) (c ) states that when interpretation the Constitution, the court may consider foreign
law. Foreign Law can provide valuable insights into how other legal systems have approached a
provision within the Bill of Rights. It is however important to note that South Africa has a different
 D SCHULTZ. 2358620.

history and a different legal system to any other foreign country / law and thus must interpret
through a lens of South Africa’s Constitutional History.

In summary, while international law consists of agreements between South Africa and another
country and is binding in the Republic, Foreign law is the law of a different country and is not binding
in the Republic.

QUESTION 3

According to Karl Klare, Transformative constitutionalism is “A long-term project of constitutional

enactment, interpretation, and enforcement committed to transforming a country’s political and
social institutions and power relationships in a democratic, participatory, and egalitarian direction.”
In Summary: “Transformative constitutionalism is an enterprise of inducing large-scale social change
through nonviolent political processes grounded in law.

According to Sandra Liebenberg, Transformative constitutionalism “implies fundamental changes to

unjust economic and social structures, whilst seeking to achieve a more equitable distribution of
social and economic resources.”

In her article, Sanele provides a summary of transformative constitutionalism at its core. She
describes transformative constitutionalism as a “Constitutional project which is committed to
changing the historically determined political, economic and social institutional power relationships.”

QUESTION 4

The article discussed in the above question by Sanele Sibanda is aimed at providing critique of South
Africa’s embrace of the concept of transformative constitutionalism after the official demise of
colonial-apartheid.

Sanele argues that whilst on paper and interpretation of the concept of transformative
constitutionalism appears to invoke great change and greatly minimize the harsh realities of the past,
in realty it has done little to achieve such results. In other words, whilst the concept promises change
to unjust economic and social structures deeply routed in South Africa, the reality has shown only a
deepening inequality and social injustice.

In simple terms, the concept which has been engrained in describing the characteristics of our
constitution has not been evident in the reality of most South African lives.
 D SCHULTZ. 2358620.

Furthermore, Joel Modiri provides a critique in stating that “while the laws of the country have
changed considerably, the architecture, framework, and logic of colonialism- apartheid remains.