Transformative Constitutionalism and the South African Legal Culture

South Africa's "Long Walk" to Reconciliation

Introduction

In the following essay I will critically analyse transformative constitutionalism and the South African legal culture by defining and explaining what is meant by the term "transformative constitutionalism", discussing and commenting on the legal culture of South Africa in terms of transformational constitutionalism, analysing the judgement in the high court from the judgement present in the Constitutional Court with reference to the case of Hoffmann v SAA, and transformative constitutionalism.

The definition of transformative constitutionalism and a discussion on South African legal culture

South Africa's past is best known for its intense injustice and inequality - a reinvention plan is needed in order to overcome this past time of anguish to ensure a vast amount of equal opportunities and fair access to necessary services for all South Africans, this process is better known as transformative constitutionalism.

The "Truth and Reconciliation Commission of South Africa" which aimed to There is no particular position which may be regarded as the finish line to this dramatic reinvention but rather, transformative constitutionalism aims to constantly evolve and change as society does.

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As a result, equality will be constantly assured in our diverse society. Transformative constitutionalism is a 'value laden' approach to law and is supported by values of the Constitution of South Africa. The term Transformative Constitutionalism involves a "long term project" focused on an amicable process towards a future of "substantive equality and improvement of socio-economic rights" brought about by change. " .

A change of legal culture is important in order to allow transformative constitutionalism to occur.

The legal culture of a country is "characterised" by the way in which the law is perceived, learned, exercised and put into practise. In other words, legal culture determines how legal members of our society interact with the law. Traditionally, the law is seen as rule bound "formalistic and technical" , not allowing for "rights and values" (now enriched in our Constitution) to play any part in decision making. Transformative Constitutionalism encourages adjudication to consist of honest decision making which should be justified by referring to both "authority and legal members own personal beliefs" . During this "long walk to reconciliation" transformative constitutionalism encourages a modification in "legal education" and a change in mentality of legal professionals towards the law.

Transformative constitutionalism and the judgement in the High Court

With regards to the Hoffmann v SAA case, the High Court took a "formalistic approach" , basing its decisions strictly off of legal reasoning and rule while failing to question the decision against constitutional values. South African Airways tried to back up their defence by stating that the protection and safety of their passengers always comes first. Furthermore, the decision of the High Court which went in favour of the defence proves to be unconstitutional as it infringed on Section 9 of the Constitution also known as the equality clause which states that it is unjustifiable to discriminate against someone in anyway whether it being direct or indirect discrimination and in this case Mr Hoffman was treated unequally and discriminated against because of his illness. It is unjust and unfair on Mr Hoffmann's behalf to be turned down work and discriminated against because he may only be a temporary employee and not a business investment in the eyes of SAA management.

Transformative constitutionalism and the judgment in the Constitutional Court

The Constitutional Court's decision which is binding on that of the High Court's decision with regards to the Hoffmann v SAA case, completely repeals the acceptance of inequality and sees the High Court's decision as exceptionally discriminative against Mr Hoffmann. A "moral value approach" is used in the Constitutional Court when evaluating this case as values, morals and beliefs were considered together with legislation.

Conclusion

This was an essay regarding transformative constitutionalism where I focused on the article by Langa and I applied the ideals of transformative constitutionalism to the High Court and Constitutional Court decisions of the Hoffmann Case. I agree with the Constitutional Court because I think substantive reasoning and transformation is the only way forward to ensure that the South African judiciary develops.