IRM1501 PORTFOLIO 2026
DUE 12 MAY 2026
QUESTION 1
Consider the following statement and answer the question that follows:
“Transformative constitutionalism is founded or has its basis in the Constitution. By its
design and nature, the Constitution is transformative in various ways.”
1 Critically analyse the concept of transformative constitutionalism. In your
answer, explain the meaning and purpose of transformative constitutionalism
within the South.
Please refer to the relevant sources in your answer. Your referencing should be
consistent with the required OSCOLA style.
Transformative constitutionalism is a foundational concept in South Africa’s post-
apartheid legal landscape. It is not merely a philosophy of legal change but a long-term,
constitutionally mandated project aimed at fundamentally restructuring political, social,
and legal institutions to realise a democratic, participatory, and egalitarian society.¹
There is no precise or uniform definition of transformative constitutionalism. Karl Klare,
who popularised the term, defines it as ‘a long-term project of constitutional enactment,
interpretation, and enforcement committed … to transforming a country’s political and
social institutions and power relationships in a democratic, participatory, and egalitarian
direction’.² This concept is broader than simple reform but falls short of a revolution,
signifying a deep, systemic change through non-violent processes grounded in law.³
, The purpose of transformative constitutionalism is to address the legacy of a
disgracefully racist, authoritarian, and repressive past by committing to a democratic,
universalistic, caring, and egalitarian future, as articulated in the Constitution.⁴
The South African Constitution, by its design, is a transformative charter. The Preamble
itself recognises the ‘injustices of our past’ and establishes a vision for a ‘society based
on democratic values, social justice and fundamental human rights’.⁵
¹ M Swanepoel and N Mabeka Introduction to Research Methodology for Law and Criminal
Justice (University of South Africa 2018) 36.
² E Kibet and C Fombad ‘Transformative constitutionalism and the adjudication of constitutional rights in
Africa’ (2017) 17 African Human Rights Law Journal 340, 350, citing K Klare ‘Legal Culture and
Transformative Constitutionalism’ 1998 (14) SAJHR 146, 150.
³ Swanepoel and Mabeka (n 1) 36.
⁴ P Langa ‘Transformative constitutionalism’ 2006 (3) Stellenbosch Law Review 351, 353.
⁵ Constitution of the Republic of South Africa, 1996, Preamble.
Former Chief Justice Pius Langa highlighted that the Constitution differs from others in
that it represents a ‘decisive break’ from this past and a vigorous commitment to a new
ethos.⁶ This is operationalised through principles which require legal researchers to
understand the applicable law, critically analyse it, and, crucially, implement the
foundational democratic values of human dignity, equality, and freedom.⁷
The courts have actively applied this concept in practice. A landmark example
is Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd, where the
Constitutional Court debated the infusion of common law contract principles with
constitutional values such as ubuntu and fairness, demonstrating a departure from a
purely formalistic application of law towards a value-based one.⁸ The trajectory of
transformative jurisprudence is also evident in S v Makwanyane and Another, which
DUE 12 MAY 2026
QUESTION 1
Consider the following statement and answer the question that follows:
“Transformative constitutionalism is founded or has its basis in the Constitution. By its
design and nature, the Constitution is transformative in various ways.”
1 Critically analyse the concept of transformative constitutionalism. In your
answer, explain the meaning and purpose of transformative constitutionalism
within the South.
Please refer to the relevant sources in your answer. Your referencing should be
consistent with the required OSCOLA style.
Transformative constitutionalism is a foundational concept in South Africa’s post-
apartheid legal landscape. It is not merely a philosophy of legal change but a long-term,
constitutionally mandated project aimed at fundamentally restructuring political, social,
and legal institutions to realise a democratic, participatory, and egalitarian society.¹
There is no precise or uniform definition of transformative constitutionalism. Karl Klare,
who popularised the term, defines it as ‘a long-term project of constitutional enactment,
interpretation, and enforcement committed … to transforming a country’s political and
social institutions and power relationships in a democratic, participatory, and egalitarian
direction’.² This concept is broader than simple reform but falls short of a revolution,
signifying a deep, systemic change through non-violent processes grounded in law.³
, The purpose of transformative constitutionalism is to address the legacy of a
disgracefully racist, authoritarian, and repressive past by committing to a democratic,
universalistic, caring, and egalitarian future, as articulated in the Constitution.⁴
The South African Constitution, by its design, is a transformative charter. The Preamble
itself recognises the ‘injustices of our past’ and establishes a vision for a ‘society based
on democratic values, social justice and fundamental human rights’.⁵
¹ M Swanepoel and N Mabeka Introduction to Research Methodology for Law and Criminal
Justice (University of South Africa 2018) 36.
² E Kibet and C Fombad ‘Transformative constitutionalism and the adjudication of constitutional rights in
Africa’ (2017) 17 African Human Rights Law Journal 340, 350, citing K Klare ‘Legal Culture and
Transformative Constitutionalism’ 1998 (14) SAJHR 146, 150.
³ Swanepoel and Mabeka (n 1) 36.
⁴ P Langa ‘Transformative constitutionalism’ 2006 (3) Stellenbosch Law Review 351, 353.
⁵ Constitution of the Republic of South Africa, 1996, Preamble.
Former Chief Justice Pius Langa highlighted that the Constitution differs from others in
that it represents a ‘decisive break’ from this past and a vigorous commitment to a new
ethos.⁶ This is operationalised through principles which require legal researchers to
understand the applicable law, critically analyse it, and, crucially, implement the
foundational democratic values of human dignity, equality, and freedom.⁷
The courts have actively applied this concept in practice. A landmark example
is Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd, where the
Constitutional Court debated the infusion of common law contract principles with
constitutional values such as ubuntu and fairness, demonstrating a departure from a
purely formalistic application of law towards a value-based one.⁸ The trajectory of
transformative jurisprudence is also evident in S v Makwanyane and Another, which
