HFL1501 Historical Foundations of South African Law
Assignment 2, Semester 1 2022
, Question 1:
Defining ‘’transformative constitutionalism’’ can be problematic since there is no
clear-cut definition that defines the concept. Former Chief Justice Pius Langa 1 said
‘’there is no single accepted and stable definition for transformative constitutionalism
because the world ‘transformative’ is by the dictionary defined as the causing of
significant positive change. And ‘constitutionalism’ is an idea expressed as, ‘…
government can and should be legally limited in its powers, and that its authority or
legitimacy depends on its observing these limitations.’ The combination of the two
explanations leads to the idea that transformative constitutionalism empowers the
fundamental principles provided in section 1 of the Constitution. 2
Within a South African context, the fundamental ideas of ‘transformative
constitutionalism’ emanate from past injustices, the Apartheid era. As a result of that
oppressive trauma the country had endured and survived; the concept was naturally
compelled to develop into something more suiting. Transformative constitutionalism
highlight two ideas, first- the idea of ‘substantive equality’ Substantive equality
means achieving equitable outcomes as well as equal opportunity, and the need to
sometimes treat people differently to achieve equal results.
Essentially to me, transformative constitutionalism provides a viable theory for the
development and interpretation of the law in post-apartheid South Africa.
Question 2
2.1. A real right is enforceable against the owner of the property and his successor in
title.
2.2. This is a matter dealing with personal servitude. Leo has a personal servitude to
draw water from Barry’s farm. Thus Leo has the right to use and enjoy Barry’s thing
without altering its character. As a result, Leo’s claim is valid as a result of the
protections afforded to servitudes. With regards to the set facts, this calls in actio
confessoria which is available to all servitude holders and could be used to enforce
the servitude holder’s rights to property.
2.3.
1
Langa, J. P. (2006) “Transformative Constitutionalism,” Stellenbosch Law Review =
Stellenbosch Regstydskrif, 17(3), pp. 351–360.
2
The Constitution of the Republic of South Africa, 1996.
Assignment 2, Semester 1 2022
, Question 1:
Defining ‘’transformative constitutionalism’’ can be problematic since there is no
clear-cut definition that defines the concept. Former Chief Justice Pius Langa 1 said
‘’there is no single accepted and stable definition for transformative constitutionalism
because the world ‘transformative’ is by the dictionary defined as the causing of
significant positive change. And ‘constitutionalism’ is an idea expressed as, ‘…
government can and should be legally limited in its powers, and that its authority or
legitimacy depends on its observing these limitations.’ The combination of the two
explanations leads to the idea that transformative constitutionalism empowers the
fundamental principles provided in section 1 of the Constitution. 2
Within a South African context, the fundamental ideas of ‘transformative
constitutionalism’ emanate from past injustices, the Apartheid era. As a result of that
oppressive trauma the country had endured and survived; the concept was naturally
compelled to develop into something more suiting. Transformative constitutionalism
highlight two ideas, first- the idea of ‘substantive equality’ Substantive equality
means achieving equitable outcomes as well as equal opportunity, and the need to
sometimes treat people differently to achieve equal results.
Essentially to me, transformative constitutionalism provides a viable theory for the
development and interpretation of the law in post-apartheid South Africa.
Question 2
2.1. A real right is enforceable against the owner of the property and his successor in
title.
2.2. This is a matter dealing with personal servitude. Leo has a personal servitude to
draw water from Barry’s farm. Thus Leo has the right to use and enjoy Barry’s thing
without altering its character. As a result, Leo’s claim is valid as a result of the
protections afforded to servitudes. With regards to the set facts, this calls in actio
confessoria which is available to all servitude holders and could be used to enforce
the servitude holder’s rights to property.
2.3.
1
Langa, J. P. (2006) “Transformative Constitutionalism,” Stellenbosch Law Review =
Stellenbosch Regstydskrif, 17(3), pp. 351–360.
2
The Constitution of the Republic of South Africa, 1996.
