understanding of transformative constitutionalism. I would .. Transformative Constitutionalism”,’ 5 Klare highlights what he terms the inherent. Transformative Constitutionalism in South Africa: 20 Years of Democracy. Mashele . Thus, Professor Karl Klare formulated the notion of TC. Harvard Law School | Institute for Global Law and Policy┬╗ Uncategorized┬╗ Karl E. Klare | Legal Culture & Transformative Constitutionalism.

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The Idea of Human Dignity. Ultimately, the nation awaits the Fees Commission of Inquiry into Higher Education and Training to publish its findings on the possibility of free higher education for deserving students, and perhaps, only then will the state pay heed to FeesMustFall. The role of judiciary in shaping human rights discourses cannot be understated. In general, Equality Act places a positive obligation on the constitutionalosm, non-governmental organizations, community-based organizations, traditional institutions and all persons to promote equality.

Inclusive education does not mean free education. The South African Experience. The Birth of a Constitution.

National legislation must be kadl to prevent or prohibit unfair discrimination. Does being equal require that people should be the same, identical or have krl elements of being? Medical Law International, Vol. Securing Substantive Equality under the Charter, pp. There are simply too many examples which suggest that the state could be making better financial decisions in order to make resources available to fulfil the right to further education.

Similar problems are widespread with regards to access to quality health care. Hence, when literally interpreted, formal equality fails to advance the wishes of transformative constitutionalism.

The Empty Idea of Equality. This is arguably resultant from privatization which has effectively deprived indigent people in rural communities of access to quality public services. Affirmative Action and Substantive Equality: Rather it defines equality within the context of addressing matters of access to justice, socio-economic entitlements and development, issues of race, gender, ethnicity and so forth.



rransformative The article analyses equality as a value in moral, social, legal and political perspectives. The legal nature of equality is therefore premised on recognizing it as an entitlement to all persons, requiring state respect, protect and enable realization of such right. Other Papers By First Author.

What is Transformative Constitutionalism?

This is discernible kark through a variety of disciplines of tfansformative scholarship, including but not limited to law and legal transformstive, politics, philosophy, humanities and various other areas of social sciences studies.

This refers to widespread dualistic public-private service phenomena and the emerging theory of VIPsm. Introducing the Right to Equality in the Interim Constitution.

First, by eliminating existing discrimination or discriminatory practices, and second, by designing measures, such as affirmative action, to protect and advance previously disadvantaged groups of persons Dupper, This includes supporting the state to alter and avert socio-economic difficulties plaguing the majority of inhabitants in under-developed villages. Statistics South Ttansformative Despite the fact that National Students Financial Aid Scheme NSFAS is meant to assist students financially, it has in the past been badly managed and has previously failed to blossom into a vessel through which the right to education can be widely realised.

Some Remarks from a Comparative Perspective. It indicts that more be done to translate the right to equality into reality. Journal of African Law, Vol. Cape Town, South Africa: It is worsened by the fact that essential public service has been commodified, essentially being replaced somewhat by a dualistic private-public service which notably always serves the rich.

The official estimate refer only to unemployed work force and active job seekers who are willing to work, whereas expanded definition transformatuve those that have abandoned job searching efforts, lost hope, and therefore categorized squarely as unemployed.


Inequality mocks SA’s freedom. The phraseology of transformative constitutionalism comprises two distinct concepts; transformation and constitutionalism.

Poverty Trends in South Africa: This was given added impetus by the known historical inequalities that characterized labour relations, where bargaining power was constantly skewed in favour of employers.

Acta Universitatis Danubius. Juridica, Vol 11, No 2 (2015)

It has been observed that equality, in its formal or substantive form, will remain a distant dream owing to spiraling triple social challenges of unemployment, poverty and inequalities.

However, it is crucial to note first and foremost that, the Constitution of the Republic of South Africa, hereinafter, the Constitutiondoes not provide a definition on what constitute equality.

Compounding these socio-economic problems is the issue of attitudinal theories, which is somewhat linked with government policy that play a crucial role in determining the fate of equality. Your email address will not be published. Harvard Law Review, Vol. Thus, a theory of equality must find a way of integrating private resources and political power. This change had to be made discernible from new distinct norms such as the Bill of Rights in chapter 2 of the Constitution and institutional framework chapter 9 institutions established to protect such rights and support democracy.

Thus, dignity-based approach to human rights augment progressive frameworks that work to remedy instances of discrimination, while creating a society where all persons are valued equally.

The theory of equality also comes across as a social moral value.

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