Abstract

This article considers whether the Constitution of the Republic of South Africa, 1996 has been informally changed by the courts through constitutional interpretation. To do so, it first provides a working definition of the concept of informal constitutional change and contrasts it with formal constitutional change. It then interrogates the challenges that arise from informal constitutional change by courts, including the question of the legitimacy or constitutionality of such change. To this end, the article develops an analytical framework for identifying both informal and unconstitutional constitutional change. Finally, it offers one likely instance of both informal and unconstitutional constitutional change by courts in South African law.