South Africa’s Transformative Constitution unravelling: implications for constitutionalism with Justice Dennis Davis

On Wednesday 9 November 2016, Justice Dennis Davis of the High Court of South Africa spoke at a seminar co-hosted by the AHRCentre and the Gilbert + Tobin Centre of Public Law. His speech, titled ‘South Africa’s Transformative Constitution unravelling: implications for constitutionalism’, addressed the successes and limitations of South Africa’s constitution in living up to its transformative potential.   

Justice Davis began by quoting from a speech Professor Frank Michelman gave on constitutional interpretation to an audience of newly appointed judges of the South African Constitutional Court. Professor Michelman suggested that the South African Constitution provided an opportunity to charter a future ‘through a process of law — that is, constitutional adjudication — that progressively instils concrete meaning into abstract rights statements’. Justice Davis also noted that South Africa has recently seen widespread protests from students who see the Constitution as a political compromise that cannot provide this future that promises a realisation of rights for the majority of the people.

Justice Davis argued that the South African Constitution has been largely successful as a mechanism through which politicians can be held to account and political decisions can be challenged. However, he suggested that the Constitution had not gone far enough in protecting the social and economic rights of the South African people. He argued that the law reinforces existing social patterns of inequality and maldistribution, and the Constitution has failed to be used to challenge and transform these underlying inequalities and fulfil its potential to protect and promote social and economic rights.

Critical to ensuring the promotion and protection of socio-economic rights, is access to the processes and institutions that seek to guarantee them. Justice Davis cautioned that in the absence of transparent measures that facilitate access to justice for the people of South Africa who face critical disadvantage, the Constitution and their rights under it, offer little prospect for the transformation of lives of deep inequality. He also suggested that law students needed to be taught  to engage with normative questions about rights and the underlying principles of the Constitution so that the future lawyers of South Africa might fulfil Michelman’s vision and the Constitution’s transformative potential.

 

 

Natalie Hodgson is a research assistant in the AHRCentre and has worked on a number of our human rights projects. She graduated UNSW with a Bachelor of Arts / Bachelor of Laws (Hons I) in 2015. 

 

Photo: AHRCentre Director Andrea Durbach, Justice Dennis Davis and G+T Centre Director Sean Brennan