I have lately returned to an old companion on my shelf, Albie Sachs’ The Soft Vengeance of a Freedom Fighter, a memoir from one of the architects of our Constitution. It is not light reading.
The pages are full of exile, bombings and the painstaking negotiations that bridged a nation fractured by apartheid. The pages are still marked where I stopped reading years ago, when I had just started out as a wide-eyed trainee lawyer in Sandton, convinced that commercial contracts were the real frontier of justice.
Yet every time I open it now, I am reminded that the document we commemorate today, 10 December 1996, the day Nelson Mandela signed the Constitution into law at Sharpeville, was never meant to be a trophy. It was meant to be a threshold.
I find myself reflecting on this threshold more than usual these days, partly because the scholarly literature on constitutional endurance has grown only more sobering. Heinz Klug writes about the fragility of transformative constitutionalism. Theunis Roux examines the judicialisation of politics when trust collapses. Pierre de Vos analyses the slow, uneven enforcement of positive obligations. They are all asking the same question the negotiators asked at Kempton Park: Can a text born of compromise actually restrain the very forces that nearly destroyed a country?
So let me offer, dear reader, a quieter meditation on why this day still matters.
Chekhov’s gun
On the eve of this day, I attended an antitrust lecture where one professor observed that competition statutes function like Chekhov’s gun. If a statutory power is introduced in the first act, it must be fired by the third, or the audience feels cheated. The same dramatic principle, I have come to realise, governs constitutional drafting.
The South African Constitution is full of such loaded weapons. Section 8(2) extends the Bill of Rights horizontally to bind private actors. Section 38 grants anyone acting in the public interest standing to approach a court directly. Section 172(1)(b) authorises courts to grant “just and equitable” remedies that can rewrite legislation. The Chapter 9 institutions stand ready as independent watchdogs.
These provisions were not ornamental. The drafters placed them on the stage because they understood that the greatest future threat to freedom might come from the democratic state itself. The gun has indeed been fired repeatedly.
Government of the Republic of South Africa v Grootboom (2000) forced the state to adopt a housing policy. Minister of Health and Others v Treatment Action Campaign (2002) compelled the rollout of antiretroviral treatment. Glenister v President of the Republic of South Africa (2011) protected the independence of prosecution. Each judgment is a reminder that the text was written for the long emergency, not only for the moment of celebration.
That long emergency is most visible in the Constitution’s socioeconomic rights, the clauses that still make foreign constitutionalists blink twice. Fatima Meer, a sociologist, banned person, and biographer of Mandela, sat in on many of the negotiations and watched housing, healthcare, water and education being argued over line by line.
She warned that if the text promised too little it would be dismissed as window-dressing, and if it promised too much the courts would be overwhelmed and the state bankrupted. She lived long enough to see both fears partly realised, yet she insisted until her death that the mere act of writing those needs into enforceable law had already shifted something irreversible in the South African imagination: poverty was no longer just misfortune; it had become, in principle, a constitutional question.
The academic commentary tracks this pattern with increasing precision. Karl Klare’s seminal 1998 article described the Constitution as deliberately transformative, rejecting legal neutrality and inviting judges to pursue substantive social reconstruction.
Counter-majoritarian dilemma
Subsequent scholarship by Dennis Davis, Stu Woolman, and Frank Michelman has mapped how this invitation produced a jurisprudence unusually willing to review policy for rationality and to enforce positive duties. Yet the same scholars caution that every bold judgment widens the counter-majoritarian dilemma and invites political pushback when delivery lags behind decree. The more the courts reach, the louder the calls grow to clip their wings.
Between these two realities, Chekhov’s loaded gun and the predictable backlash it provokes, lies the fragile equilibrium the Constitution still demands we maintain.
We are not celebrating perfection. The text still carries the scars of hard bargaining: a property clause that calmed investors yet deferred land justice, qualified labour rights that remain contested, Chapter 9 bodies now under sustained pressure. We are not pretending permanence; 17 amendments have already been passed and more will follow.
What we are marking is something smaller and therefore harder: the decision, taken in the shadow of possible civil unrest, to found the republic on human dignity and to create mechanisms, imperfect and under-resourced, that can still call any branch of power to account.
In an age of State Capture aftershocks and the quiet erosion of once-proud institutions, that decision feels almost reckless in its optimism.
So on this 10 December I light no celebratory fire. I simply open the text again. The preamble recognises past injustices and honours those who suffered. Section 1 lists the fundamental founding values of human dignity, equality and freedom. Section 7(2) obliges the state to respect, protect, promote and fulfil every right in the bill. I read them the way the drafters intended: not as poetry, but as instructions issued to us, the living, with a deadline of forever.
The compact is vulnerable. Honour it anyway. DM
Sphesihle Nxumalo is a lawyer. This article was written in his personal capacity, and the views expressed herein do not represent the opinions of his employer or any organisation whatsoever with which he is associated.