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Part I Framework, 6 Transformative Constitutionalism and the Global South: The View from South Africa

James Fowkes

From: Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune

Edited By: Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, Ximena Soley

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 27 January 2021

This chapter, written in the spirit of building South–South dialogue, provides an introduction to the South African experience with transformative constitutionalism. It discusses the concept’s rather troubled status in South African constitutional talk as symptomatic of its theoretical tensions, and considers the South African record on certain key rights topics: Equality, dignity, socioeconomic rights, and rights-based debates over the status and development of African customary law. Transformative constitutionalism can also imply changes in the institutional functioning of courts and other bodies and the relationships between them, an adjustment South African institutions (and scholars) are still making. Finally, courts in transformative systems not only find many new issues potentially placed within their jurisdiction, but also (especially in emerging systems like South Africa) still have to perform importantly preservative tasks, upholding the rule of law, and fighting corruption. This has important political and strategic implications for how judges conduct their transformative work.

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