Constitutional morality in South Africa: Is it the missing link?

Abstract

The Constitution of South Africa is lauded worldwide for its progressiveness. This paean status notwithstanding, there is an increasing sense that the Constitution’s transformative ideals are gradually slipping out of reach. Inequality persists, while corruption and poverty are increasingly crippling the country. There is no gainsaying that a constitution thrives on its black letter and its spirit. The Constitution of South Africa recognises this truism by expressly providing for certain values, some of which are explicit, while others are implicit. One value that is not explicit in the values laid down in s 1 of the Constitution, and has not featured prominently in the jurisprudence of the superior courts in South Africa, is the doctrine of constitutional morality. The doctrine broadly imposes a moral obligation to comply with the totality of the ethos of the Constitution. The animating question that this article seeks to investigate is whether the doctrine of constitutional morality is missing between the Constitution and the realisation of its lofty transformative ideals. Based on an emergent paradigm of critical constitutionalism in South Africa, the article hypothesises that the ideals of transformation will be attained when those to whom the constitution applies feel the innate moral obligation to comply with the totality of its ethos.