Exam Prep

Question 1

Name the five elements of transformative constitutionalism as identified by Klare. (5)

Answer 1

1. Justiciable bill of rights
2. Politicized rule of law
3. Progressive legal culture
4. Critical system of adjudication
5. Post-liberal constitution.

Question 2

Which branch of the law-making processes of democratic societies does Klare focus on in his article? (1)

Answer 2

Adjudication: judiciary process of interpretation

Question 3

State Klare’s explanation for why the above process qualifies as a ‘law-making process’. (3)

Answer 3

1. Law has no inherent meaning. Legal texts are written documents and are not self-explanatory;
2. the text is always interpreted by the reader and through this given meaning . when judges read sources of law they can never be totally constrained by the legal sources as they always have to be interpreted.
3. Through this interpretation the judges give meaning to the texts which create precedents and effectively make law in this way as other courts will be bound by this specific interpretation.

Question 4

Explain in your own words what you understand of Klare’s contention that adjudication is characterized by a dialectic between freedom and constraint? (4)

Answer 4

This ‘dialectic’ refers to the tension between the two opposing concepts of freedom and constraint.

On the one hand we have a constitutional text, which encompasses a language that seeks to promote justice, overcome injustice and move towards a democratic and caring society.

However, we have a commitment to legal constraint, which seems to be the foundation of the democratic enterprise evoked in the mantra of the rule of law.

This means that judges and lawyers are not completely at large to say and do as they please by the lights of whatever personal vision they hold. Furthermore, adjudication is not and cannot be infinitely plastic and open-ended.

Question 5

State the extended definition of transformative constitutionalism. (7)

Answer 5

(1) long term project of
(2) constitutional enactment, interpretation and enforcement committed
(3) not in isolation but in a historical context of conducive political development
(4) to transforming political and social institutions
and (5) power relations
through (6) a (7) democratic and participatory and egalitarian direction

Question 6

State the truncated definition of transformative constitutionalism. (5)

Answer 6

It is an (1) enterprise of inducing a large-scale social change through (2) non-violent political processes (3) grounded in law. This transformative constitutionalism is (4) more vast than reform yet something different from (5) revolution.

Question 7

Klare states six reasons to justify his contention that the South African Constitution is postliberal. Name these reasons. (6)

Answer 7

1. Social rights and substantive conception of equality
2. Affirmative state duties
3. Horizontality
4. Participatory governance
5. Multiculturalism
6. Historical self-consciousness

Question 8

what is social rights and substantive conception of equality (klare)

Answer 8

constitution takes into account that political freedom and socio-economic rights/justice are inextricably linked. The constitution does not merely proclaim that everyone has political freedom but commits to creating a society in which people actually have the resources to exercise those rights. Our constitution recognises that there is a difference between substantive equality and formal equality. – Substantive, over formal justice.

Question 9

what are affirmative state duties (klare)

Answer 9

traditional liberal constitutions refrain states from interfering with people’s rights. Our constitution puts an obligation of positive duties the on state i.e. progressive real rights.

Question 10

what is horizontality (klare)

Answer 10

between two private individuals. If the Common law cannot help you then constitution can be used through direct horizontal application or can use the horizontal indirect to application. ie to develop common law and then the common law will help you. Most liberal constitutions only deal with vertical application of constitution between state and private individuals. Note: Indirect horizontality doesn’t work directly with the constitution but changes the common law to allow people access to private rights. (Indirect, horizontal application – willes - s8(2) .)

Question 11

what is participatory governance (klare)

Answer 11

post liberal government is decentralised i.e. national and provincial. Public participation in drafting of bills. Our constitution envisages a government that will actively promote and deepen a culture of democracy

Question 12

what is multiculturalism (klare)

Answer 12

our constitution celebrates multiculturalism and diversity and promotes unity in diversity. It promotes gender equality and rights for vulnerable and victimised groups in society.

Question 13

what is historical self consciousness (klare)

Answer 13

our constitution is an instrument committed to social transformation and reconstruction. It seeks to change the inequalities of the past; to transform society from one which is characterised by deep inequalities; to one where all are equal and this equality is achieved substantively with reference to our past.

Question 14

Legal materials mean whatever we want them to mean. (1) True or false

Answer 14

False

Question 15

Legal constraint is not itself a product of the context in which a judge finds herself. (1) t or f

Answer 15

False

Question 16

Previous interpretations of legal materials do not partially constitute these materials and does not imbue them with value-laden meanings. (1)

Answer 16

false

Question 17

Legal culture is constituted by professional sensibilities, habits of mind, and intellectual reflexes. (1)

Answer 17

True

Question 18

Legal culture shouldn’t limit the ambitions and achievements of democratic transformation. (1)

Answer 18

True

Question 19

South African legal interpretation is more ‘policy-orientated and consequentialist’ whereas legal interpretation in the United States is more technicist and literal. (1)

Answer 19

False

Question 20

According to Klare South African legal culture is transformative because the Constitution is progressive. (2)

Answer 20

False

Question 21

The right to life in the interim Constitution self-evidently prohibited the imposition of the death penalty.

Answer 21

False

Question 22

Why does Klare think that there is an obligation of political self-reflection and candor upon the judiciary when it adjudicates? (8)

Answer 22

1. personal or political values and sensibilities cannot be excluded from the interpretative processes or adjudication. the exclusion called by the justiciable rule of law ideal is quite simply impossible.
2. Judges make value-laden choices in their routine interpretations. They are responsible for the social and distributive consequences that result from these choices and therefore should be judged accordingly.
3. Legal practitioners should acknowledge their political and moral responsibility in adjudication and share the secret with their publics in the interest of transparency.
4. Thus political self reflection and legal candor raises 3 points:
5. legal candor would empower publics to examine , discuss and criticise the hidden political and moral assumption that are currently steering adjudication
6. The political process could send signals to the other branches of government emphasizing that the judiciary are not the only branch obliged to enforce the constitution
7. A more politically self conscious legal process would be more faithful to the constitutions democratic ethos and in particular would give meaning to the explicit command of s41 (1) c all organs of state must provide transparent accountable and coherent government. Indeed the con seems to impose an obligation of political self-reflection and candor on the judiciary

Question 23

Name four features of critical adjudication (2 softenings, 2 understandings)

Answer 23

Understandings:

1. Legal texts do not self generate meaning
2. An understanding that the experience of constraint of legal materials is an experience or interpretation of them, and is not innate to them materials themselves. Softenings:
3. Law and politics are inextricably linked
4. Distinction between the professional obligation to stay true to the text and strategic effort to bring about a certain result in the name of justice

Question 24

Why should the ‘indelible impression of a disconnect’ between the Constitution’s transformative aspirations and the traditionalism of South African legal culture concern us both academically and normatively? (5)

Answer 24

For one thing, the conventions of South African culture make it particularly uncomfortable for South African lawyers to acknowledge their political discretion and power in adjudication. But expressions of faith in the constraining power of legal texts and ritual invocation of the law/politics boundary obscure and mystify the choices judges and advocates routinely make in their interpretive work. This reduces the transparency of the legal process, thereby undermining its contribution to deepening democratic culture.

Moreover, jurisprudential conservatism may induce a kind of intellectual caution that discourages appropriate constitutional innovation and leads to less generous or innovative interpretations and applications of the Constitution than are permitted by the text and drafting history. Even progressive judges comfortable with an activist role may take for granted limitations on their interpretive scope that owe more to tradition than to the responsibilities and obligations of their role under this Constitution.

Question 25

1. Langa argues that there is no single, stable understanding of ‘transformation’ but that there is a basis for a shared understanding of transformative constitutionalism. What is that basis? (1). 


Answer 25

The Epilogue to the interim constitution: historical bridge metaphor

Question 26

2. What is the third conception of transformation that Langa identifies? (1) 


Answer 26

Transformation is a permanent ideal

Van derwalt: bridge metaphor is inaccurate , transformation should be ongoing and should not have an endpoint

Question 27

3. Identify five of the key challenges for transformative constitutionalism as discussed by 
Langa (5). 


Answer 27

➢	Access to equal justice
➢	Legal education
➢	Legal culture
➢	Responsibility for transformation and reconciliation
➢	Creating a climate for reconciliation

Question 28

4. Discuss briefly the five key challenges for transformative constitutionalism as discussed by Langa (5). 


Answer 28

➢ Access to equal justice: we have high levels of crime and people want to see justice however legal representation lies beyond the financial means of most people. More money also means better representation; the quality of representation available to poorer people is not as good.
➢ Legal Education: There needs to be a change in mindset. We need to teach law students to critically engage with the values of the constitution and to regard law as part of the social fabric
➢ Legal Culture: There needs to be a move away from conservative and formalist legal culture towards substantial adjudication.
➢ Responsibility for transformation and reconciliation: Not only the courts but the government also bears the responsibility. There must also be responsibility amongst the people of South Africa.
➢ Creating a climate for reconciliation: beneficiaries must take responsibility for apartheid. Victims, beneficiaries and perpetrators must work together to create a climate of reconciliation. Through social justice we create a climate for forgiveness.

Question 29

5. What does creating a ‘climate for reconciliation’ chiefly entail? (2). 


Answer 29

Beneficiaries must take responsibility for apartheid. Victims, beneficiaries and perpetrators of apartheid must work together to create a climate of reconciliation to achieve a unified society. Through social justice we create a climate for forgiveness. We do this through leveling socio economic conditions in the country. Aim to achieve social justice instead of criminal justice.

Question 30

6. If law cannot legislate forgiveness and order reconciliation, then what can it do in 
relation to these processes? (1) 


Answer 30

The law must be brought in line to reflect constitutional values and social justice. It must target socio economic problems. Create a conducive environment in which change can actually happen. Ensure the interpretation of texts is transformational to ensure that the playing field is leveled.

Question 31

what are 6 key elements of critical race theory

Answer 31

1. critique of liberalism
2. anti essentialism
3. intersectionality
4. structural determinism
5. multi disciplinary thinking
6. narrative

Question 32

what are the 2 foundational principles of critical race theory

Answer 32

1. centrality of racism

2. white supremacy

Question 33

1.) Name the two approaches to constitutionalism that Sibanda discusses in his article and indicate which one he considers to be ‘the preferred approach’ in South African constitutional discourse (2).

Answer 33

The first approach is the Orthodox/ liberal democratic approach. The second preferred approach is the transformative approach

Question 34

2.) What is ultimately Sibanda’s argument as regards the relationship between liberal and transformative constitutionalism? (2)

Answer 34

Liberal Const. views SA after apartheid as transforming, views post apartheid transition successful. Transformative says we need to transform socio economic environment. Transformative constitutionalism is wedded to liberal democratic constitutionalism and this makes it ill suited to achieving social, economic and political vision.

Ebie: TC is embedded in liberal constitutionalism; it runs the risk of collapsing into liberal constitutionalism. It essentially becomes an extension of it and not fundamentally different. Therefore it is ill suited to achieve the social, economic and political vision that it proclaims

Question 35

3.) What is the ‘main challenge’ of transformative constitutionalism as Sibanda sees it? (2)

Answer 35

The main challenge is the disconnect between the Constitution’s substantively transformative aspirations and the conservatism of South African Legal culture. There is a clash. Transformation relies on adjudication and progressive interpretation of legal texts , a conservative legal culture means that conservative interpretation will not allow us to achieve substantive constitutional goals

Question 36

3.) Describe Fanon’s position on ‘national consciousness’ (4)

Answer 36

National consciousness is a response to colonialism. Fanon is deeply critical of national consciousness. It is a reaction to colonialism by the politically elite. They essentially invoked this national consciousness because they had certain values and goals to meet and wished to collectivize people around these causes. Although this is important as a response to colonialism if it is done in this way it becomes an empty shell. There is just a shift, new politically elite who struggled against colonialism rise to the top and people under become oppressed again, there is no radical shift on the ground.

Question 37

4.) Sibanda uses Fanon’s position on national consciousness to describe – by analogy - a problem about transformative constitutionalism. Explain. (4)

Answer 37

Empty shell

We must think of tc as a form of social and political consciousness it informs how we perceive the SA project. However in a constitution we still see that it structurally and institutionally protects white minority monopoly capital. TC is flawed it is like national consciousness it has the potential to become an empty shell, it does not work well with the constitutional project. WE need a political and social consciousness. Because the people who are interpreting the constitution do not have this , tc is not working.

Question 38

6.) ‘If transformative constitutionalism is at its heart an interpretive enterprise that can be undermined by a conservative legal culture’ then what is one left with, according to Sibanda, when such an erosion of the Constitution’s transformative vision occurs? (3)

Answer 38

essentially we are left with liberal democratic constitutionalism, empty procedural democracy and not much is actually changing except for amounting to elections every 5 years and a balancing of state power.

Question 39

1.) What is the common feature of all the views on uBuntu that Mokgoro relates. (1)

Answer 39

Posits the individuals existence and wellbeing as relative to the group, 
Perceptions that influence social conduct

Question 40

Name Kunene’s definition of uBuntu and explain your understanding of this 
definition. (3)

Answer 40

Kunene says Ubuntu is the potential of the human being. This means it is not just an ideology but an articulation of an ontology that ethics follows. Ubuntu is not given it is something worked at, something lived and something achieved. Harmony between us and nature.

Question 41

How is uBuntu different from the classical liberal view of the Other and others?

Answer 41

Western view is that we have life given to us we are simply born human and develop our cognitive ability over time. Capitalism and liberal democracy favors individualism. Ubuntu is completely different , it states that becoming human requires work , we have the agency to choose and promote ubuntu values for the good of the community.

Question 42

Explain how Mokgoro links uBuntu to human dignity. (3) 


Answer 42

Dignity is the protection of the human being , all humans have this potential and if it is protected ubuntu is greatly promoted.links ubuntu dignity through the concept of respect: ubuntu shows that you have an understanding and value dignity. It is a social value which forms the basis of morality, co operation, dignity and respect.

Question 43

5.) State Mokgoro’s position on the relationship between ubuntu and 
constitutionalism. (2) 


Answer 43

There is a mutual relationship between Ubuntu and constitutionalism. The values of Ubuntu are an integral part of the value system that was established by the Constitution, and thus the values in the Constitution should be interpreted in light of Ubuntu. This means that rights must not be interpreted in an individualistic way, but rather in the spirit of Ubuntu - thus you would rather place an emphasis on the relations that the rights embody and recognise.

Question 44

State Mokgoro’s position on the relationship between ubuntu and ‘indigenous 
law’ (2)

Answer 44

ubuntu harmonizes indigenous law

Indigenous law does not reflect the values of Ubuntu. There is an obligation to interpret and develop the customary law in the spirit of the Constitution, which thus means that the interpretation of customary law must be informed by the spirit of Ubuntu (because we said that ubuntu was an integral part of the value system of the Constitution above)
Note: Indigenous law as she uses it here, actually refers to customary law that was written down and enforced by the colonialists. There is a huge difference between this type and the ‘living’ customary law.