The efficacy of the constitutional court’s jurisprudence in achieving socio-economic transformation in post-apartheid South Africa

Abstract

Transformative constitutionalism, popularised in the context of South Africa’s transition from an apartheid State to constitutional democracy in 1994, arguably provides a valuable framework or constitutional ethos for redressing socio-economic disparities and imbalances brought about by the apartheid State. The greatest challenge facing contemporary South African society and its constitutional democracy is securing greater levels of equality and socio-economic justice amongst its populace, especially many previously disadvantaged South Africans.

It has been almost three decades since the demise of the apartheid system of racial injustices. Still, the majority of contemporary South African society remains subjected to abject poverty, deplorable social conditions and exclusion from the mainstream economy. Consequently, the debate amongst scholars on socio-economic rights has now shifted from the desirability of constitutionalising socio-economic rights to problems of enforcement or realisation of the rights.

The present study examines the extent to which the judicial adjudication and enforcement of socio-economic rights contained in the South African Bill of Rights have redressed the past socio-economic disparities and imbalances created by apartheid social engineering. The study engages in an analysis of the relevant international human rights law instruments, constitutional law jurisprudence, related legislation, as well as case law. The study shows that whilst progress has been made in achieving socio-economic transformation post-1994, there is a greater need to strengthen the legislative and judicial arms of government, specifically the courts’ judicial review, towards improving the realisation of socio-economic rights contained in the Bill of Rights for the benefit of all South Africans. Poverty and inequality, exacerbated by unemployment, are the country's foremost challenges. Regrettable, the reality is that poverty and inequality grew since the advent of democracy in South Africa.