South Africa's transformative Constitution: from civil and political rights doctrines to socio-economic rights promises

Author:Mashele Rapatsa
Position:School of Law, University of Limpopo, South Africa
Pages:208-219
SUMMARY

This article discusses the post 1994 rights-based approach to transformation. Civil and political rights and socio-economic rights are conceived as central tenets to South Africa’s transformative Constitution, 1996. The Constitution was fundamentally tasked with transforming society to bring about substantive social and legal justice, peace, political stability and reconciliation among South... (see full summary)

 
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South Africa’s transformative Constitution: from civil and political
rights doctrines to socio-economic rights promises
Lecturer Mashele RAPATSA
1
Abstrac t
This articl e d iscusses the post 19 94 rig hts-based appro ach t o tran sformatio n.
Civil and poli tical rights and socio-eco nomic ri ghts a re con ceived as cen tral t enets to
Sout h Africa’s transformat ive Constitut ion, 1996. The Con stitution wa s funda menta lly
task ed with transforming soc iety to bring abo ut substant ive social an d legal justice, pe ace,
poli tical stabilit y and reconci liation among Sou th Africans. This culmin ated in a new l egal
cultu re, el evating ho pes that socio -economic probl ems la rgely inherited from th e past
would be al tered. Thus, t his articl e examines th e extent to wh ich norms and the law i n the
Consti tution normali zes peopl e’s socio -economic condit ions. It u tilizes not able
entren chment and eventual justi ciability of socio -economic righ ts as noticeab le attempt to
proffer a pa nacea to prevail ing socio-econ omic instabil ities. It has been o bserved that first
and seco nd generat ion rights are i nterrelated a nd mutually suppo rtive toward s the co urse
of transformatio n. How ever, it is assert ed th at th e commend ed no rmativ e framework is
strugg ling to wa rd off the c ountry’s social and economic problems owi ng t o persi stent
povert y problem. Th us, real tra nsformation w ill remain an elu sive dream i f po verty is not
elimina ted.
Keywords: con stitution al transformati on, human rights, p overty, socio -economic
rights.
JEL Cla ssification: K10
1. Introduction
The Constitution of the Republic of South Africa (hereinafter, the
Constitution, 1996) has been hailed as an extraordinary text which represents an
embodiment of progressive democracy. This characterization stems from the
country’s historic transition from apartheid to a wholly multi-racial democracy,
which has been lauded as a unique political event of the last century.
2
According to
Eric Christiansen, this Constitution is frequently been described as a model
document for domestication of human rights norms, which the Constitutional Court
has championed by taking a progressive human rights activist role in pursuit of
1
M ashele Rapatsa - School of Law, University of Limpopo, South Africa. LLB (UL) LLM (UCT),
PhD student (University of Groningen, Netherlands), m.j.rapatsa@rug.nl .
2
Robert P. Imman, Understanding the Democratic T ransition in South Africa. “ American Law and
Economics Review” (2013) p. 1.

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