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

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.