The limits of transformation in South Africa’s constitutional democracy

Abstract

In the South African public vernacular ‘transformation’ has become a key notion, but its meaning is, to put it mildly, unclear. Bringing clarity of meaning to, or removing the confusion caused by widespread opportunistic misuse of the term is not attempted here, but the limits of its employment, especially in law, are explored. First the constitutional foundations of transformation are sketched and its ideological, intellectual and legal notions identified. A review of the surfacing in legislation and jurisprudence of the concept over the past two decades is presented. Finally, by means of a conclusion, the limits of transformation are considered from a legal point of view. While it is clear that the theme of ‘transformation’ has penetrated South African law, the article suggests that lawyers interested in maintaining the constitutional demands of reasonable balance should seriously contemplate the limitations that the law imposes on this pliable, and ideologically compromised notion. A review of legislation reveals a disconcerting picture of indeterminacy brought about by the systematic, but mostly unannounced, translation of ideological goals into legislation. The judicial use of the concept, sometimes in its intellectualised form, sometimes in disguised or openly dogmatic fashion, has not contributed much to remove the uncertainty, because clear and objective reference to its full constitutional meaning is largely absent. It is found that the ideological rendering of ‘transformation’ is not consistent with the Constitution, but, if given a meaning in tune with the Constitution, the pursuit of ‘transformation’ must be understood to be a legitimate governmental purpose compliant with the rule of law. ‘Transformation’, appropriately construed, should not be problematic, but the indeterminate manner in which it is being utilised, especially in law, in a manner contaminated by ideology not supported by the Constitution, tends to neutralise the rule of law.