The South African Constitution creates rights and imposes obligations. However, it is not established that constitutional obligations include doing what is just, right and fair. This article sought to ascertain whether the Constitution binds South Africans to legally enforceable obligations to do what is just, right and fair. The article used the doctrinal legal research methodology, which entailed the analysis of primary and secondary sources of law such as the Constitution, case law, books and journal articles. The analysis showed that doing what is just, right and fair is legally mandated by the spirit of the Constitution, which is expressly and implicitly articulated in the preamble, the founding values and the Bill of Rights. The analysis further showed that the judiciary is at the epicentre of facilitating justice and ensuring that all public and private conduct is right and fair.
The Constitution of the Republic of South Africa, 1996 (‘the Constitution’), creates competing rights and imposes obligations on the state, juristic persons and natural persons. However, it is not established in legal scholarship whether constitutional obligations include doing what is just, right and fair or whether this is a matter of morality and individual conscience. This article examines the Constitution to ascertain whether it establishes a society that is bound to a set of legally enforceable principles of justice, right and fairness. The article uses a doctrinal legal research method, which entails the analysis of primary sources of law (such as the constitution and case law) and secondary sources (such as academic commentary in books and legal periodicals). The Constitution is the supreme law of South Africa (s. 2 of the Constitution) and is thus the main source of law used in this article. This article identifies and discusses three parts of the Constitution that articulate the obligations to do what is just, right and fair – namely, the preamble, the founding constitutional values in Chapter 1 and the Bill of Rights in Chapter 2 of the Constitution. Arguably, the Constitution not only places an obligation on power holders to exercise power within a legally prescribed framework created to guard against injustice, wrong and prejudice, but also provides avenues for the vindication of rights. The ethos of doing what is just, right and fair is not peculiar to South Africa because the principles of justice, right and fairness are as old as the law itself and have influenced legal processes and constitution-making for centuries.
The analysis in this article emphasises the constitutional obligation to do what is just, right and fair because of South Africa’s challenging past, which was anchored in injustice, inequality, discrimination and other prejudices. The three parts of the Constitution identified as the sources of the obligation to do what is just, right and fair (the preamble, the founding constitutional values in Chapter 1 and the Bill of Rights in Chapter 2) are examined against the historical background. The discussion in this article also shows that the judiciary (the Constitutional Court in particular) is the ultimate authority on the meaning, interpretation and application of what is just, right and fair.
Adopted against a background of centuries of colonialism and decades of apartheid, the Constitution is an embodiment of an ethos of overcoming injustice. The
The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. (n.p.)
This powerful declaration found judicial favour in the second judgement of the Constitutional Court (
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While the gallant efforts of South Africans to move away from the past are evident, the historical context is still relevant to matters of justice, right and fairness because ‘the past is not done with us; … it is not past … it will not leave us in peace until we have reckoned with its claims to justice’ (
However, the importance of history in post-apartheid jurisprudence should be taken with a pinch of salt, particularly given that some parts of the history are contested and unclear. For this reason, Cameron J warned the Constitutional Court that ‘it is bad to hide behind the indeterminacies of history and the inevitable incompleteness and partiality of its telling’ (
The Constitution identifies the universal and democratic ethos of justice, right and fairness within which the state, juristic persons and everyone in South Africa should operate. In understanding the constitutional framework, it is essential to look at the preamble, which is the introduction to the Constitution. The preamble boldly declares that the Constitution was adopted by ‘[w]e, the People of South Africa’. In any democratic state, the Constitution’s preamble serves several purposes. It declares the sovereignty of the people; contextualises the historical narrative behind the adoption of the Constitution; lays down the supreme goals of the Constitution; and articulates the national identity (Orgad
The most significant aspect of the preamble is that it sets the context for doing justice by recognising the injustices of colonial and apartheid regimes. It honours all persons who fought the unjust regimes to attain justice and freedoms and pays tribute to all persons who worked hard to build and develop South Africa. Unlike in most constitutions, the preamble declares that ‘South Africa belongs to all who live in it, united in our diversity’. This declaration lays the foundation for equality and non-discrimination, and thus serves to articulate the importance of the ethos of justice, right and fairness, all of which can only be attained through democratic values and respect for fundamental rights. The preamble calls for a South African society that is not only democratic but also open and governed according to the will of South Africans. It calls for the improvement of ‘the quality of life of all citizens and to free the potential of each person’ to advance social justice.
Judgements of the courts show that the preamble seeks to create a South Africa that contrasts with the colonial and apartheid injustices through the advancement of equality and freedom, as opposed to the inequality and discrimination that characterised the old order. In
The founding values underlie the Constitution and carry symbolic importance (Cameron
However, the founding provisions and the preamble do not confer enforceable rights on South Africans, even if they expressly refer to some rights that are entrenched elsewhere in the constitution (
These considerations yield the norm that a litigant cannot directly invoke the Constitution to extract a right he or she seeks to enforce without first relying on, or attacking the constitutionality of, legislation enacted to give effect to that right. This is the form of constitutional subsidiarity Parliament invokes here. Once legislation to fulfil a constitutional right exists, the Constitution’s embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role. (para. 53)
The South African Bill of Rights has received much critical acclaim in South Africa and beyond. One notable admirer is Ackerman J, one of the first judges of the Constitutional Court. Ackerman J declared that the Bill of Rights represents the best in all liberal democracies and that it is paradigmatic for all 21st-century democracies that commit to justice through human rights (Ackerman
The most critical aspect of the Bill of Rights is the justiciability of the rights. The rights are enforceable through the courts; it being the rule that the Bill of Rights binds Parliament, the presidency and cabinet, the courts and other organs of state, and mandates the state to protect, promote and fulfil the rights. In
In protecting the rights of all people who live in South Africa, the Bill of Rights places emphasis on the protection of vulnerable groups. The rationale for special constitutional protection of vulnerable groups, such as children and women and linguistic, religious and racial minorities, is that the vulnerable groups are the most exposed to injustice and prejudice. Several court judgements affirm this. Admittedly, democratic processes are not readily available and are often ineffective to protect vulnerable groups who do not have adequate resources and the democratic clout to influence things in their favour (
In some instances, doing what is just, right and fair within the context of the Bill of Rights entangles legal scholars, judges and religious groups in complex questions. There is an ideological conflict between constitutional values and competing religious interests in maintaining order and stability. The adoption of a liberal constitution for South Africa planted the seeds of the ideological conflict between conservative Christian values and the exceedingly ambitious liberal notions of constitutional democracy. The liberal democratic constitution exerts immense pressure on Christianity, specifically. The legal reality is that the constitutionalist view of what is tolerable will always prevail because the Constitution means what the Constitutional Court judges say it means in their judgements. One of the first ideological clashes emerged in
In another case,
Doing what is just, right and fair in a constitutional democracy like South Africa, which emerges from a difficult past of colonial subjugation and apartheid excesses, is contestable, particularly given that South Africa moved on from apartheid more than two decades ago. Ideally, the government should be judged on current terms, not on historical terms. However, the reality is much more complex, with the result that policies, principles and doctrines adopted in the 1990s to mould a just, right and fair South Africa continue to find application in contemporary South Africa with a zeal not imagined before. Two of the most contested principles in this regard are transformation and transformative constitutionalism. These principles are relevant, as they are perceived among minority circles as the avenues for legalised discrimination and exclusion.
The post-1996 South African government adopted transformation as one of its most important underpinnings, resulting in the discourse on radical economic transformation. Venter (
In
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Whereas transformation is a political term, legal scholars and judges have found the term relevant in law through terminological adaptation, hence the term ‘transformative constitutionalism’. Transformative constitutionalism is the equivalent of the term ‘egalitarian constitutionalism’ (Frankenberg
Notwithstanding the aspirations for justice, right and fairness expressed in the preamble, the founding values and the Bill of Rights, there is no denial that South Africa experiences unprecedented levels of injustice, wrong and prejudice. This is because the Constitution is not the destination to doing what is just, right and fair; the Constitution is merely the vehicle to the destination. The past two decades have shown that the Constitution is not unchallengeable but has many shortcomings that can only be addressed if South Africans acknowledge that the Constitution has limitations and that whereas it is the supreme law, it is not the
The South African Constitution is built,
This article was completed with the financial generosity of the National Research Foundation (Grant no. 115581).
The author declares that he has no financial or personal relationships that may have inappropriately influenced him in writing this research article.
F.D. is the sole author of this research article.
This article followed all ethical standards for research without direct contact with human or animal subjects.
This article was made possible by the generous support of the National Research Foundation through the South African Research Chair in Cities, Law and Environmental Sustainability.
Data sharing is not applicable to this article as no new data were created or analysed in this study.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of any affiliated agency of the author.