A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa

Abstract

The purpose of this Article is to assess the trajectory of almost twenty years of “transformative constitutionalism” – a judicial mandate to interpret and develop the law so as to create a more just and equitable society through the transformation of political and social institutions – in South Africa. On October 11, 1996, two-and-a-half years after a peaceful and abrupt transition from its authoritative past, South Africans enacted a “modern” constitution. The early Constitutional Court quickly set about to actualize the post-conflict constitutional principles and delivered a series of celebrated cases that addressed structural injustices brought about by decades of gross poverty, disease and inequality. Almost two decades since its inception, however, the perception of the Court and the Constitution as agents of social transformation has flagged. One of the challenges in adopting an “aspirational constitution” is squaring its progressive rights with socioeconomic realities. To date, the void between what the Court and the Constitution guarantee and the conditions in the streets remains vast. Under these sobering societal realities, the current chief justice, Mogoeng Mogoeng, assumed stewardship of the Constitutional Court. In September 2013, during the Court’s third term, the Chief Justice discusses his thoughts on leading one of the most dynamic and innovative constitutional democracies.

Keywords: Constitutional Court of South Africa, Transformative Constitutionalism