Transformative constitutionalism, power and consensus: Are the courts in charge?

Abstract

Supporting a very energetic rendition of the constitutional state, this chapter addresses some of the issues mentioned above. Specifically, it asks whether the courts are `in charge? of the transformation of the state, as called for by the supremacy of the Constitution. More directly, it asks how and to what extent the courts can or should be 'in charge' of the transformation of South Africa towards a more just society, as required by the comprehensive measures included in the NDP: Vision 2030. Firstly, we inquire whether the court's pursuit of transformative constitutionalism would necessarily weaken the separation-of-powers doctrine. Secondly, we ask to what extent the debate between 'judicial modesty and restraint' and 'judicial activism' determines the ability of the courts to pursue the practice of transformative constitutionalism in an effective way. Finally, we consider whether the apex courts (and especially the CC) are able to pursue this desirable transformative constitutionalism without the existence of a comprehensive 'social contract' as called for by the NDP in Vision 2030.