The Fiction of Transformation: An Analysis of the Relationship Between Law, Society and the Legal Profession in South Africa

Abstract

ABSTRACTNotwithstanding South Africa recently having celebrated 20 years of its democracy, it remains one of the most unequal societies in the world. The South African Constitution guarantees the right to equality, yet the country remains divided along racial lines. In spite of numerous legislative and policy attempts to achieve substantive equality, when reflecting on the current demographic statistics, it appears that the South African legal profession finds itself embedded in this division. This speaks to the tensions that have emerged as the country struggles to balance its constitutional obligations to provide redress for discrimination suffered during apartheid while simultaneously striving to meet its economic development imperatives. Through an analysis of rights-based and human capital approaches to transformation, we argue in this article that despite the tensions between meeting transformative objectives and the needs of the economy, these goals are not incongruent. Some pertinent pieces of legislation are considered in making the argument that the transformation of the legal profession requires active transformation beyond the context of law and policy. The role of the legal profession in facilitating transformation in institutional cultures that inform it, particularly with regard to legal education and language, is explored. We argue that the profession needs to be invested in ensuring that its professional constituency adequately reflects the society it represents. This is not only as a means of achieving transformation within the profession, but more importantly, of ensuring that as custodians of the Constitution, it lives the values contained therein.