1. Mnyongani states that when the 1996 Constitution was enacted it was ‘hailed’ for its
transformative agenda. Discuss his motivation for this view as well as what according him is the
‘Achilles heel’ of this agenda. (12)
Mnyongani states that when the 1996 constitution was enacted it was hailed for, amongst other
things, its inclusion socio-economic rights and its transformative agenda. A transformative
constitution seeks to ‘’facilitate a fundamental transformation in the unjust political, economic and
social conditions inherited from our colonial and apartheid past and to create a new society based
on social justice, democracy and human rights.1
Mnyongani’s motivation for this view is that the South African constitution is founded upon values of
human dignity, non-racial and non-sexism. In keeping with the rights discourse, the constitution
mentions race within the context of the right to equality. The drafters of the constitution have
situated the equality clause at the heart of the inequalities of the past. The equality envisaged by
the constitution is both formal and substantive.2
Formal equality, as De Waal writes, refers to the sameness of treatment, that is, everyone must be
treated in the same manner regardless of their circumstances, while substantive equality refers to
the fact that the circumstances of each individual must be considered so as to ensure equality
outcome. The equality clause therefore occupies a central and overarching place in the South
Africa Legal Order. As a value and as a right, Albertyn and Goldblatt argue, equality is central to
the task of transformation. A further point to make is that the constitutional rights are
interdependent and interconnected.3
1 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
2 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
3 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
1
, Liebenberg and Goldblatt propose what they call an interpretive interdependence of rights. By this,
they envision a form of interpretive dependence whereby courts are encouraged to consider how
values which underlie one right may be of assistance in developing the jurisprudence of another
right. They propose that since equality is a foundational value in the constitution, it must inform the
interpretation of all the rights in the Bill of Rights. With regard to equality and socio-economic rights,
they note that ‘’an approach to the interpretation of equality and socio-economic rights that
acknowledge the interrelationship between these rights is also more likely to be responsive to the
reality that the most severe forms of disadvantage are usually experienced as a result of an
intersection between group-based forms of discrimination and socio-economic margination.4
It is argued in this contribution that such an approach may be of assistance in dealing with the
legacies of colonialism and apartheid. 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 African continues to be beset by
challenges of racial discrimination, poverty, and inequality. The apartheid footprints refuse to go
away, as Liebenberg and Goldblatt note. ‘’Its legacy is very much with us. It is manifest in the
racialised geography and unequal provision of services characterising South African Townships
and cities, the vastly inferior quality of education experienced by black children in informal
settlements in urban areas, and in the inadequate, overtaxed public health care system serving
mainly middle income to wealthy communities.5
According to Mnyongani, customary law seems to be the Achilles hell of the constitutional
transformative agenda. Race is still at the centre of the division between customary law and the
dominant legal system. Customary Law is applicable mainly to black people, and this potentially
puts customary law on a collision course with the founding values of non-racial in the constitution.
Ndima However, is of the view that in a constitutional era, customary law is no longer applied
based on the race of the litigating parties, but on its applicability. Ideal, the view by Ndima is correct
and accords with the constitutional injunction that ’’courts must apply customary law when it is
applicable’’. The reality however, it that in essence customary law will continue to be applicable to
the majority black people. Correctly or incorrectly so, the court has also adopted the same view.6
In most civilised societies, people often rely on the courts of law to give direction in their disputes.
How the court discharge this task will have a bearing on how the public views the whole justice
4 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
5 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
6 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
2
transformative agenda. Discuss his motivation for this view as well as what according him is the
‘Achilles heel’ of this agenda. (12)
Mnyongani states that when the 1996 constitution was enacted it was hailed for, amongst other
things, its inclusion socio-economic rights and its transformative agenda. A transformative
constitution seeks to ‘’facilitate a fundamental transformation in the unjust political, economic and
social conditions inherited from our colonial and apartheid past and to create a new society based
on social justice, democracy and human rights.1
Mnyongani’s motivation for this view is that the South African constitution is founded upon values of
human dignity, non-racial and non-sexism. In keeping with the rights discourse, the constitution
mentions race within the context of the right to equality. The drafters of the constitution have
situated the equality clause at the heart of the inequalities of the past. The equality envisaged by
the constitution is both formal and substantive.2
Formal equality, as De Waal writes, refers to the sameness of treatment, that is, everyone must be
treated in the same manner regardless of their circumstances, while substantive equality refers to
the fact that the circumstances of each individual must be considered so as to ensure equality
outcome. The equality clause therefore occupies a central and overarching place in the South
Africa Legal Order. As a value and as a right, Albertyn and Goldblatt argue, equality is central to
the task of transformation. A further point to make is that the constitutional rights are
interdependent and interconnected.3
1 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
2 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
3 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
1
, Liebenberg and Goldblatt propose what they call an interpretive interdependence of rights. By this,
they envision a form of interpretive dependence whereby courts are encouraged to consider how
values which underlie one right may be of assistance in developing the jurisprudence of another
right. They propose that since equality is a foundational value in the constitution, it must inform the
interpretation of all the rights in the Bill of Rights. With regard to equality and socio-economic rights,
they note that ‘’an approach to the interpretation of equality and socio-economic rights that
acknowledge the interrelationship between these rights is also more likely to be responsive to the
reality that the most severe forms of disadvantage are usually experienced as a result of an
intersection between group-based forms of discrimination and socio-economic margination.4
It is argued in this contribution that such an approach may be of assistance in dealing with the
legacies of colonialism and apartheid. 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 African continues to be beset by
challenges of racial discrimination, poverty, and inequality. The apartheid footprints refuse to go
away, as Liebenberg and Goldblatt note. ‘’Its legacy is very much with us. It is manifest in the
racialised geography and unequal provision of services characterising South African Townships
and cities, the vastly inferior quality of education experienced by black children in informal
settlements in urban areas, and in the inadequate, overtaxed public health care system serving
mainly middle income to wealthy communities.5
According to Mnyongani, customary law seems to be the Achilles hell of the constitutional
transformative agenda. Race is still at the centre of the division between customary law and the
dominant legal system. Customary Law is applicable mainly to black people, and this potentially
puts customary law on a collision course with the founding values of non-racial in the constitution.
Ndima However, is of the view that in a constitutional era, customary law is no longer applied
based on the race of the litigating parties, but on its applicability. Ideal, the view by Ndima is correct
and accords with the constitutional injunction that ’’courts must apply customary law when it is
applicable’’. The reality however, it that in essence customary law will continue to be applicable to
the majority black people. Correctly or incorrectly so, the court has also adopted the same view.6
In most civilised societies, people often rely on the courts of law to give direction in their disputes.
How the court discharge this task will have a bearing on how the public views the whole justice
4 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
5 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
6 Mnyogeni FD duties of a lawyer in a multicultural society: A customary law perspective, 2012 Stell LR 362
2
