South Africa’s Constitution promises equality. Yet for millions of poor South Africans, equality remains far more visible in judgments than in daily life. Rights are affirmed, policies struck down, and remedial orders issued, while conditions on the ground remain stubbornly unchanged. This disconnect is not accidental. It reflects a legal culture that too often treats neutrality as justice and compliance as closure.
Recent litigation and public debate around failing service delivery, delayed housing projects and the uneven implementation of court orders have once again exposed a familiar pattern: constitutional violations are acknowledged, but the harm they cause is rarely repaired. The poor carry the consequences long after legality has been restored.
Formal equality assumes that once a rule is applied evenly, justice is done. But South Africa is not a society of equals starting from the same position. Poverty here is cumulative, shaped by historical dispossession, spatial exclusion, administrative neglect and persistent institutional failure. When the law responds to this reality with neutrality, it risks entrenching inequality rather than dismantling it.
This is where restorative constitutionalism matters.
Restorative constitutionalism begins from the recognition that constitutional harm does not end when a court order is issued. For communities waiting years for housing, water, sanitation or healthcare, the injury is ongoing. A declaration of invalidity does not restore dignity. A revised policy does not compensate for years of deprivation. And even structural interdicts, vital as they are, do not automatically translate into repaired lives.
The poor experience constitutional violations not as abstract legal breaches, but as lived harm. Children grow up without secure homes. Families organise their lives around unreliable services. Communities normalise exclusion because it has become routine. When the state eventually complies with court orders, it often does so without acknowledging the damage already done.
In this context, equality cannot mean simply correcting the law going forward. It must include repair.
Restorative constitutionalism insists that the Constitution’s foundational values of dignity, equality and freedom impose obligations not only to stop unlawful conduct, but to respond meaningfully to its consequences. This is not about charity or exceptionalism. It is about recognising that substantive equality sometimes requires deliberate repair, not neutral administration.
Basic services
Consider socioeconomic rights litigation. Courts repeatedly affirm the state’s duty to progressively realise access to housing, healthcare and basic services. Yet when implementation fails or is delayed for years, the legal system rarely asks a crucial follow-up question: what is owed to those who bore the cost of that failure?
A family that waited a decade for adequate housing has lost more than time. A community left without sanitation has suffered health, educational, and economic harm. A patient denied timely healthcare may never recover what was taken. Treating these outcomes as unfortunate but legally irrelevant reflects a thin conception of equality, one that prioritises procedural compliance over lived justice.
Restorative constitutionalism challenges this logic. It shifts the focus from whether the state has technically complied to whether constitutional harm has been meaningfully addressed. It asks whether equality is truly served when those who suffered the greatest harm receive the least attention once legality is restored.
This does not weaken the rule of law. It deepens it. The Constitution was never intended to be satisfied by minimal compliance. It is explicitly transformative. It recognises that historical injustice produces present-day inequality, and that law must sometimes intervene affirmatively to disrupt that continuity.
Neutrality in deeply unequal conditions is not impartial. It is conservative. It preserves existing distributions of power and burden. For the poor, neutrality often means waiting patiently while systems adjust, a luxury they cannot afford.
Accountability reframed
Restorative constitutionalism also reframes accountability. South Africa is adept at investigations, commissions, and reports. We document failure thoroughly. What we struggle with is closure, not in the sense of forgetting, but in the sense of repair. For the poor, repeated exposure to constitutional failure without restoration erodes trust not only in government, but in the Constitution itself.
When rights are affirmed, but conditions remain unchanged, constitutionalism risks becoming performative. The law speaks, but life does not listen.
A restorative approach would encourage remedies that go beyond future compliance. It would include acknowledgement of harm, participatory engagement with affected communities, and measures aimed at rebuilding dignity and agency, not merely delivering infrastructure. It would recognise that equality is not achieved when everyone is treated the same after harm has occurred, but when those most affected are supported in regaining what was lost.
The poor do not need a Constitution that is neutral to their suffering. They need one that responds to it.
Restorative constitutionalism offers a way to reconnect constitutional law with lived justice. It does not replace rights; it completes them. And in a society as unequal as ours, that completion is not optional. It is the measure of whether constitutionalism still deserves the faith we place in it. DM
Nathanael Siljeur is a legal practitioner and researcher with a background in constitutional law, social justice and ethics. His work engages questions of accountability, institutional integrity and the intersection of law, public policy and human dignity. He writes in his personal capacity.