Abstract

The Constitution of the Republic of South Africa, 1996 committed South Africa to a path of social transformation through its endorsement of the concept of transformative constitutionalism. Ultimately, this requires the transition of South African society from a state of deep inequality and injustice towards a more equal society characterised by social justice. Transformative constitutionalism has important consequences for the judiciary and the way in which judges discharge their judicial responsibilities. This lecture explores what transformative constitutionalism entails for the judiciary in fulfilling their adjudicative mandate under the Constitution. It assesses how well judges have fared in their attempts to ensure the transformation of South Africa’s legal culture and methods of judicial decision-making. It further proposes how judges should approach their constitutional obligation to develop the common law and interpret legislation to give full effect to constitutional rights and values. The lecture concludes by reflecting on the role of the judiciary in light of the current socio-political context and debates in South Africa.