scholarly journals THE SHILUBANA JUDGMENT IN LIGHT OF TRANSFORMATIVE CONSTITUTIONALISM

2013 ◽  
Author(s):  
Serena Kalbskopf
Keyword(s):  
Social Change ◽  
South African ◽  
Legal Culture ◽  
Final Outcome ◽  
The South ◽  
Law And Politics ◽  
The Law ◽  
South African Constitution

In this essay I explore Karl Klare’s notion of transformative constitutionalism explored in light of the case of Shilubana.1 Firstly, I define transformative constitutionalism and the circumstances present in the South African Constitution (Constitution) that give its interpretation a post liberal propensity are set out. This is followed by establishing why it is important to dull the distinction between law and politics, and by a consideration of the influence of legal culture when interpreting the law. Thereafter, I give a brief background of Shilubana. I argue that Shilubana was informed by some transformative constitutionalism principles as far as enhancing multiculturalism is concerned although it was limited by the legal culture of Justice Van Der Westhuizen. Lastly, I attempt to show that the final outcome of the case did effect desired social change envisaged through or by the project of transformative constitutionalism.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

The Law and Custom of the South African Constitution

1936 ◽  
Vol 36 (1) ◽  
pp. 177
Author(s):  
Herbert A. Smith ◽  
W. P. M. Kennedy ◽  
H. J. Schlosberg
Keyword(s):  
South African ◽  
The South ◽  
The Law ◽  
South African Constitution

scholarly journals Ubuntu: An African Equity

2017 ◽  
Vol 14 (4) ◽  
pp. 29 ◽  
Author(s):  
Thomas W Bennett
Keyword(s):  
South African ◽  
Criminal Law ◽  
Constitutional Law ◽  
Family Law ◽  
Legal Culture ◽  
Administrative Law ◽  
The South ◽  
The Law

In this paper the uses of ubuntu in constitutional law, criminal law, administrative law, the law of property, family law, delict and contract are investigated.  Furthermore the theoretical objections to the use of ubuntu are stated and responded to.  It is found that ubuntu provides the South African courts with a metanorm similar to the English notion of equity and that it is being deployed to give voice to something distinctively African.  It promises to lay the foundations for a cohesive, plural, South African legal culture", characterised by notions such as reconciliation, sharing, compassion, civility, responsibility, trust and harmony.

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