Transformative Constitutionalism in South Africa: Creative Uses of Constitutional Court Authority to Advance Substantive Justice

I. INTRODUCTIONSubstantive justice is an ever-elusive goal for constitution-makers. A desire to structure a system of government and draft rights protections that will advance genuine justice for their people is almost always an aspiration claimed by nation-builders. But it is a goal that is typically met imperfectly, if not inadequately. Nevertheless, seeking justice that is superior to that of the previous regime motivates many countries to reformulate their government or change their laws, or even to amend or rewrite their constitutions. And any such quest for justice is made much more challenging if the country aspires to actualize substantive justice: justice in its fuller dimensions as demonstrated by more than formal, legal equality or the exclusive protection of negative liberties.1For political theorists, workaday advocates, and legal academics who seek justice in this richer sense, studying South Africa is a natural area of inquiry. Since the end of apartheid in the early 1990s, the Republic of South Africa has attempted an intentional process of remaking itself as a "human rights state."2 Indeed, South Africa is the most frequently discussed example of this form of transformative constitutionalism: a conscious attempt to create a nation that would espouse and accomplish substantive justice in its political and economic facets. South Africa's 1996 Constitution declared the new nation to be "a society based on democratic values, social justice and fundamental human rights ...." a with the express mission to "[i]mprove the quality of life of all citizens and free the potential of each person."3 South Africa has been attempting to transform itself through a constitution that zealously protects traditional civil and political rights and addresses the more fundamental elements of justice as well. Indeed, South Africa has established a jurisprudence of expansive dignity and equality protections as well as the only relatively comprehensive, affirmative social rights jurisprudence of any nation4-a reflection of the transformative values of the Constitution and the South African Constitutional Court's commitment to the nation's justice-oriented ideology.In late 2009, the Constitutional Court went through a symbolic but significant change. The Court acquired its third Chief Justice and lost the last sitting members of the first generation of Constitutional Court justices, as those judges appointed by President Mandela in the months after South Africa's first democratic elections retired due to judicial term limits.5 This occasion provides many commentators an opportunity to evaluate the work of the Court's first fifteen years.6 The conclusion of many critics will inevitably be that, while the Court (like the South African government generally) has been responsible for significant social and political progress, it has had only modest impact on the seemingly intractable problems of socio-economic injustice and substantive inequality.However, for those critics-and I include myself among them-particularly interested in the Constitutional Court's ability to advance substantive justice, recent cases indicate the Court may be adding a new dimension to its experiment in transformative constitutionalism. In three relatively new judgments, the Court appears to be more creatively using certain elements of its institutional authority to promote genuine justice. If this assessment is correct, this would be another praiseworthy contribution of the South African Constitutional Court to the field of comparative constitutionalism and an additional way to promote its transformative agenda.South Africa has already demonstrated the justiciability of enumerated social welfare rights and that the South African model of social welfare adjudication-one critical element of substantive justice-could be borrowed by other national courts.7 But these most recent developments, if they continue to be evidenced in future generations of the Court, are more easily exported to other nations because they do not require specific textual language (e. …