Constitutionalism, Democracy and Denial in Post-Apartheid South Africa

Abstract

This article explores the relationship between the constitutional order created out of the two post Apartheid constitutions -- the interim 1993 and final 1996 constitutions -- and the development of democracy in South Africa. While these constitutions represent the high-water mark of the legal revolution that was the product of the transition away from Apartheid, the development of democracy, and the relationship between democratic politics and the constitutional framework, has produced increasing legal contestation. On the one hand there are constant demands for greater transformation of institutions as well as the prevailing social and economic conditions. On the other hand there are constant efforts to ensure that these demands for social and economic change be limited by what are framed as neutral legal principles of individual autonomy that deny the legitimacy of demands for greater social transformation. This paper concludes that this process of denial is both rooted in the claim of legal continuity and the process of 'reconciliation' that were a key aspect of the democratic transition and that this 'denial' is posing an increasing threat to the sustainability of the transformative constitutional order that has been advanced by the Constitutional Court since its founding in 1995.

Keywords: Constitutionalism democracy constitutional democracy South Africa

JEL Classification: K39