understanding of transformative constitutionalism. I would .. Transformative Constitutionalism”,’ 5 Klare highlights what he terms the inherent. Transformative Constitutionalism in South Africa: 20 Years of Democracy. Mashele . Thus, Professor Karl Klare formulated the notion of TC. Harvard Law School | Institute for Global Law and Policy┬╗ Uncategorized┬╗ Karl E. Klare | Legal Culture & Transformative Constitutionalism.

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Acta Universitatis Danubius. Juridica, Vol 11, No 2 (2015)

It has been observed that equality, in its formal or substantive form, will remain a distant dream owing to spiraling triple social challenges of unemployment, poverty and inequalities.

A solid relationship between equality and dignity has also been found to be significant in serving distributive justice. The transition can best be described as a watershed moment. Serena Baldin University of Trieste.

Phephelaphi Dube: Transformative constitutionalism demands government takes action – Project Rise

Facing the challenge of transformation: Thus, Aristotle subscribes more to formal equality. This constithtionalism reflected on the importance of taking into account, real policy social and political issues in the formulation and entrenchment of equality clause in the Constitution. Primary school inequality in South Africa. Inequality mocks SA’s freedom. This era was essentially marked by a process of notable paradigm shift in as far as advancing human rights was concerned.

It is important to establish how transformative constitutionalism envisioned achieving equality, and the premise upon which such would be modelled, formal or substantive equality? Inequality appear in a variety of ways, the most common being through pervasive disparities of wealth between the rich and the poor. Some Remarks from a Comparative Perspective. Studies in Poverty and Inequality Institute, pp.


Qualified and financially deserving students should be receiving state support in accessing the right to further education.

Indeed, it has been twenty one years since the advent of democracy. The president met again, in Septemberwith security cluster ministers in order to find solutions to the violent protests across university campuses. The drafters of the Constitution tried to ensure that immediate resource constraints should not be a hindrance to ensuring longer term access to socio-economic rights, including the right to further education.

This assists in understanding the practical application of the right to equality and its social impact.

The state is not simply required to stop interference with the transformmative of rights, but also has a positive duty to fulfil and augment those rights. A Myth or Reality?


This democratic dispensation officially brought an end to apartheid, klaer long-standing repressive regime which retains the status of dismal human rights record in the history of South Africa Sarkin, ; Landsberg and Mackay, According to Grantdignity provides a properly grounded theory derived from its rich tradition that has been accepted as being capable of underpinning an appropriate approach to equality.

At the center of attention was the need to ensure a comprehensive realization of espoused social and substantive justice, and building a nation grounded on protecting established democratic values and fundamental human rights Rapatsa, Substantive equality asserts that even though we are different, unique, with various talents, law in the Constitution ought to be utilized to mitigate adverse effects of such inherent differences. This concerns a recognition that all humans are born constitutionaljsm equal worth or value.


However, it is crucial to note first and foremost that, the Constitution of the Republic of South Africa, hereinafter, the Constitutiondoes not provide a definition on what constitute equality. Thus, equality evolves as an all-encompassing norm which covers wide ranging aspects in society, inclusive of social interfaces, gender, religion, racial, tribal, economic and political landscapes amongst others.

Phephelaphi Dube: Transformative constitutionalism demands government takes action

How does inequality manifest in South Africa? Currently the state contributes just over R24bn in total funding to universities, which amounts to 2.

African Human Rights Law Journal, 14, pp. The historical conceptualization of equality can be traced through philosophical thoughts of Aristotle. However, he expounded equality of resources distributive justice as an isolated theory from equality of political power especially pertaining to publicly or commonly owned resources.

Under these circumstances, it has been proven that those plagued by poverty in particular, have the slightest opportunity to assert and realize their dignity, therefore enjoy other guaranteed freedoms and right to equality. The Limits of Law. Thus, a theory of equality must find a way of integrating private resources and political power. The theory of equality also comes across as a social moral value.

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