Testing the transformative premise of the South African Constitutional Court: A comparison of High Courts, Supreme Court of Appeal and Constitutional Court socio-economic rights decisions, 1994–2015

Abstract

The South African Constitutional Court was established in 1994 to herald a decisive break from the authoritarian apartheid legal order with its largely complicit, overwhelmingly executive-minded and status quo-oriented judiciary. There can be no doubt the court was designed to oversee a project of radical constitutional transformation that included the aims of advancing socio-economic equality and entrenching a new culture of judicial review and justification of power. Against this backdrop this article analyses the judgments in the six socio-economic rights cases that have been through the High Courts, the Supreme Court of Appeal and the Constitutional Court to examine the extent to which the Constitutional Court has acted as South Africa’s guiding judicial agent for social change, in the sense both of whether it has pursued the most transformative option in any given case, as well as whether the judgments of the Constitutional Court have been more transformative than those of the Supreme Court of Appeal and/or the High Courts. Using a methodology engaged by scholars exploring the role of courts in new democracies, which seeks to understand the variables that condition the social transformation performance of new courts and especially those with strong authoritarian legacies that are striving with new progressive legal agendas, the article draws some conclusions regarding the interplay between legal design and social composition of the judiciary that might resonate beyond the South African context.