As gap between constitutional promise and lived reality grows, courts face a defining choice

This year marks 32 years of South Africa’s constitutional democracy and nearly three decades since legal scholars such as Karl Klare foregrounded the concept of transformative constitutionalism.

This is a concept that expresses three eminent features of the Constitution: the commitment to achieve social justice and substantive equality; the extension of human-rights application into private relationships; and the requirement that any exercise of public power must be consistent with the Constitution.

While the entire Constitution is transformative, the preamble gives a particular positioning and clarity to transformative constitutionalism, expressly locating SA’s constitutional project in the imperative to “Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”, while also affirming that “every citizen is equally protected by the law”. Three decades later, the promise of transformation remains unevenly realised.

It is very common for a poor urban resident in Alexandra township to return home to find her makeshift dwelling reduced to rubble, her possessions scattered in the street, with no alternative accommodation, no immediate access to legal representation, and no realistic prospect of urgent judicial relief. The Constitution promises her dignity, housing and equality before the law. In reality, access to those guarantees are delayed, if they arrive at all.

Elsewhere, in a mining town of Mpumalanga, there are families affected by a mining collapse who are still seeking answers and justice for their loved ones. A case like this would typically span more than a decade, with accountability suspended due to protracted legal and bureaucratic processes. Constitutionally, we know that justice is possible, but for these families it remains inaccessible, fragmented and delayed.

Transformative jurisprudence

These stories should challenge the courts, particularly the Constitutional Court, on their transformative jurisprudence. What they reveal is what we already know, that poverty in SA is not merely an economic deprivation, it is a form of structural violence. It is a form of harm that is produced by institutional design, sustained by cautious interpretive postures and systematic inertia.

Whether the Constitution recognises socioeconomic rights is not the question here, because it does. The real question is whether the courts, as interpretive institutions, are prepared to give meaningful force to those rights.

The widening gap between the transformative commitment of the Constitution and peoples’ lived experiences poses a threat to the very fragile social contract that sustains the rule of law. This gap is often attributed to government failure or limited resources. But that is an incomplete conversation.

The courts’ judicial interpretation wields a decisive role in shaping not only how, but whether constitutional rights are realised. This interpretive caution, although necessary as a mechanism of neutrality or institutional restraint, has become one of the tools through which structural poverty is quietly reproduced.

The Constitutional Court has, to its credit, boldly affirmed the justiciability of socioeconomic rights. In the Grootboom case, it recognised the state’s constitutional obligation to address the desperate need for housing. In another case involving the Treatment Action Campaign, it confirmed that resource limitations cannot be a justification for inaction, especially when rights are at stake. In another case, Olivia Road, it restored dignity at the centre of eviction law. These judgments remain foundational to our democracy.

Persistent hesitation

Yet these very gains also expose a persistent hesitation. It is understandable that the courts’ habitual reliance on the reasonableness review and institutional deference is informed by legitimate concerns about the separation of powers. However, the outcome has repeatedly been a jurisprudence that affirms the reality of structural inequality, but often stops short of dismantling it.

This caution has become a particularly persistent barrier to transformation, especially when it extends to interpretation of institutions that are specifically designed to protect the poor.

That tension now stands before the Constitutional Court in SAHRC v Agro Data CC and FC Boshoff. What is at stake is whether the findings and remedial directives of the SA Human Rights Commission are legally binding, or just merely advisory, requiring the commission to invariably approach a court for enforcement.

Lower courts have held that the commission lacks binding remedial authority. If this interpretation is upheld, it will significantly weaken one of the few constitutional institutions mandated to offer accessible justice outside formal litigation. It will also limit the commission to being a body that can investigate and report, but not meaningfully remedy harm without exorbitant costs and complex court proceedings.

This is not just a technical dispute about institutional authority or competence, but a constitutional choice with real distributive consequences. If the court chooses to interpret section 184(2)(b) (which gives the Commission the mandate to “take steps to secure appropriate redress”)’ as excluding binding authority, it will be failing to appreciate the reality that access to courts is not a neutral alternative. Access to litigation is heavily influenced by systematic and socioeconomic factors.

For poor and underserviced communities, litigation is very expensive, it is often slow, intimidating and out of reach.The requirement of an institution like the SA Human Rights Commission to litigate compliance in every case shifts the burden of enforcement away from powerful actors and onto those with no risk margin to absorb the costs.

Precedent

The precedent that will be set by the apex court matters. How it interprets Section 184 of the Constitution will structure future power relations. If the court’s decision sets a precedent that weakens the commission, the risk or implication will be a system in which constitutional accountability depends on capacity for access and proximity to legal expertise. The credibility of our democracy hinges on more than a mere promise of dignity that is structurally denied.

Transformative constitutionalism demands more than position statements. It requires interpretive choices that both acknowledge social reality and confront inequality directly. In a deeply unequal society like SA, judicial restraint is not neutral.It is a choice, one that either disrupts the status quo or reproduces structural violence.

Former justice of the Constitutional Court, Edwin Cameron, captured this possibility in his address at the Bram Fisher Memorial Lecture in 2015.

“We have the conditions for continuing our just transformation, for taking it far further. And we have the social restiveness, the constitutional apparatus, the principles and values to achieve it.” DM

Tebelelo Lentsoane is a research and policy analyst and civic education practitioner.