STUDENT NO:
MODULE CODE: LJU4801
ASSIGNMENT NO: 02
DUE DATE: 16 SEPTEMBER 2022
1. Transformative constitutionalism, popularised in the context of South
African transition from apartheid to constitutional democracy, arguably
offers an antidote for failed constitutionalism and weak protection of
fundamental rights and freedoms in emergent democracies in Africa.
Mnyongani states that when the 1996 Constitution was enacted it was
hailed for, among other things, its inclusion of justiciable socio-economic
rights and its transformative agenda. Transformative Constitutionalism of
South Africa has the purposeof transforming the society from one which
discrimination and inequality deeply entrenched on grounds of race, sex,
colour, to a new society based on equality, democracy, social justice,
dignity and freedom.’ The South African Constitution is founded upon the
values of human dignity, non-racialism and non-sexism.
The constitutional transformative agenda to build a society based on
democratic values, social justice and fundamental human rights is far from
being realised?. Eighteen years into a constitutional democracy, South
Africa continues to be beset by challenges ofracial discrimination, poverty
and inequality.
Moreover, examination of individual in the context of his or her group and
social and economic condition; the impact of inequality in vulnerable
groups and provision of remedial measuresto uplift the disadvantaged
groups are required. The achievement of substantive equality is not only
specified under the constitution as right but also as a value that democratic
republic of South Africa founded and the new society wants to achieve.
Section 9 of the constitution indicates that the establishment of substantive
equality as a main objective of transformation.
The South African Constitution is founded upon the values of human
dignity, non-racialism and non-sexism. In keeping with the rights
discourse, the Constitution mentions race within the context of the right to
equality.
, 2. According to Mnyongani, Courts have not always been fully conversant
with African customary law issues. This contribution argues that when
people are involved in customary law disputes, their legal representatives
should ensure that such representation embodies the ethos, worldview
and rules of customary law. Customary law should not be moulded to be
like Westerninspired common law as was the case in the past. To mould
customary law according to the dictates of the dominant legal order will
only continue to distort it further and therefore stunt its development in its
own right. Litigants need to be assured that the forum adjudicating their
dispute will do so in a fair and just manner.
As to what is fair and just will of course depend on the cultural context and
the people involved. Justice, after all, is “contingent and particular, not
universal”.
In the Western-inspired dominant legal system, the practice of law, its
institutions and the language used are far removed from the people. Even
the most sophisticated member of the society would struggle to
understand the language and the processes followed in court. One of the
core features of the South African legal system is that it is adversarial in
nature, though not exclusively so. In an adversarial system disputes are
settled primarily through adjudication. The adversarial legal system
operates on the basis that two parties to a dispute, in most cases
represented by their lawyers, will present their case to a judge who acts
like an umpire.At the end of the hearing, the judge or presiding officer will
give a ruling.
The institutional arrangement of the legal system makes the services of a
lawyer indispensable. In the words of Steytler, “a fair adversary system is
thus dependent on the prosecutor and the accused participating fully and
effectively in order to produce a just decision”. Full participation by the
accused is only possible if the accused is legally represented. However, in
a country like South Africa, not all poor people can afford the services of
some of the best legal practitioners available in the Republic. In a country
with socio-economic challenges like South Africa, the high costs make
MODULE CODE: LJU4801
ASSIGNMENT NO: 02
DUE DATE: 16 SEPTEMBER 2022
1. Transformative constitutionalism, popularised in the context of South
African transition from apartheid to constitutional democracy, arguably
offers an antidote for failed constitutionalism and weak protection of
fundamental rights and freedoms in emergent democracies in Africa.
Mnyongani states that when the 1996 Constitution was enacted it was
hailed for, among other things, its inclusion of justiciable socio-economic
rights and its transformative agenda. Transformative Constitutionalism of
South Africa has the purposeof transforming the society from one which
discrimination and inequality deeply entrenched on grounds of race, sex,
colour, to a new society based on equality, democracy, social justice,
dignity and freedom.’ The South African Constitution is founded upon the
values of human dignity, non-racialism and non-sexism.
The constitutional transformative agenda to build a society based on
democratic values, social justice and fundamental human rights is far from
being realised?. Eighteen years into a constitutional democracy, South
Africa continues to be beset by challenges ofracial discrimination, poverty
and inequality.
Moreover, examination of individual in the context of his or her group and
social and economic condition; the impact of inequality in vulnerable
groups and provision of remedial measuresto uplift the disadvantaged
groups are required. The achievement of substantive equality is not only
specified under the constitution as right but also as a value that democratic
republic of South Africa founded and the new society wants to achieve.
Section 9 of the constitution indicates that the establishment of substantive
equality as a main objective of transformation.
The South African Constitution is founded upon the values of human
dignity, non-racialism and non-sexism. In keeping with the rights
discourse, the Constitution mentions race within the context of the right to
equality.
, 2. According to Mnyongani, Courts have not always been fully conversant
with African customary law issues. This contribution argues that when
people are involved in customary law disputes, their legal representatives
should ensure that such representation embodies the ethos, worldview
and rules of customary law. Customary law should not be moulded to be
like Westerninspired common law as was the case in the past. To mould
customary law according to the dictates of the dominant legal order will
only continue to distort it further and therefore stunt its development in its
own right. Litigants need to be assured that the forum adjudicating their
dispute will do so in a fair and just manner.
As to what is fair and just will of course depend on the cultural context and
the people involved. Justice, after all, is “contingent and particular, not
universal”.
In the Western-inspired dominant legal system, the practice of law, its
institutions and the language used are far removed from the people. Even
the most sophisticated member of the society would struggle to
understand the language and the processes followed in court. One of the
core features of the South African legal system is that it is adversarial in
nature, though not exclusively so. In an adversarial system disputes are
settled primarily through adjudication. The adversarial legal system
operates on the basis that two parties to a dispute, in most cases
represented by their lawyers, will present their case to a judge who acts
like an umpire.At the end of the hearing, the judge or presiding officer will
give a ruling.
The institutional arrangement of the legal system makes the services of a
lawyer indispensable. In the words of Steytler, “a fair adversary system is
thus dependent on the prosecutor and the accused participating fully and
effectively in order to produce a just decision”. Full participation by the
accused is only possible if the accused is legally represented. However, in
a country like South Africa, not all poor people can afford the services of
some of the best legal practitioners available in the Republic. In a country
with socio-economic challenges like South Africa, the high costs make
