This article reflects on the limits of “post”-apartheid constitutionalism through an extended theoretical discussion and close reading of the Constitutional Court decision in City of Tshwane Metropolitan Municipality v Afriforum and Another 2016 (6) SA 279 (CC). It focuses in particular on how South Africa’s history of colonial conquest, white supremacy and racism – and the nation’s failure to reckon with that history – introduced a “constitutional irresolution” in the case. Developed by Emilios Christodoulidis as a critique of constitutional optimism in all its forms, “constitutional irresolution” describes what happens when constitutionalism, because of its institutional and rigid character, is unable to address political or legal contestations which challenge its own terms and norms. In this article, this irresolution is then related to the work of Mogobe Ramose and specifically his critique of how the negotiated settlement and transition of the 1990s followed a path of democratisation, which not only negated the exigency of decolonisation and historical justice but also resulted in the “constitutionalisation of the injustice arising from the unjust war of colonisation”. Since City of Tshwane raised questions concerning race, belonging and the still colonial character of South African spaces, mind-sets and power relations, it illustrates the persistence of the colonial-apartheid past into the constitutional present. Among other things, I take this blurring of the divide between the past and the present to be an exposure of the limits, or irresolution, of “post”-apartheid constitutionalism and “post”-apartheid jurisprudence: Race lives even as it is being constitutionally buried. In South Africa, race and racism constitute an impermanent conundrum, a conceptual incorrigibility in and for a society trying to imagine itself as non-racial.
This article draws on a chapter from the authors doctoral thesis entitled “The
Jurisprudence of Steve Biko: A Study in Race, Law and Power in the
‘Afterlife’ of Colonial-apartheid” (PhD thesis 2018 UP). (http://hdl.handle.net/2263/65693)