Critique of the South African Constitution for not being sufficiently transformative

Against the backdrop of sustained critique of the South African Constitution, my presentation at the ‘Conference on Courts as an Arena for Societal Change’ will undertake an examination of post-apartheid transformative constitutionalism using the example of mineral rights adjudication.

Why focus on the mineral rights sphere as the lens of the inquiry?

The mineral resources sphere has been chosen as the site of inquiry for two reasons. First, although no longer contributing as much as it did to South Africa’s gross domestic product during apartheid, mining still constitutes the core of the South African modern political economy. So, transformation of the mining sector carries significant socio-economic weight. Second, minerals are embedded in land, which is imbued with plural legal meanings, and contestation over mineral rights entails legal consideration of one of the thorniest aspects of the post-apartheid constitutional order, section 25 of the Constitution, the ‘property clause’. As both socio-economically significant and legally contentious, mining therefore provides a useful lens through which to examine the transformative potential of the constitutional premise.

Empirical focus and findings

Focusing on a series of emblematic mineral rights cases tackling a range of transformation fault lines, the presentation at the Conference will explore how the judiciary has interpreted the transformation mandate in response to contestation by marginalised groups and interests. In doing so, the presentation highlights the receptiveness of both the constitutional framework and judicial interpretation to increasingly transformative claims, including those that have begun to pit community struggles against more conservative government notions of transformation.

More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.

On 9 July 2022 Jackie Dugard will present her work on “Evaluating transformative constitutionalism in South Africa: A view from the mineral rights’ adjudication looking glass” in a session dedicated to the adjudicating economic, social and cultural rights.