Transformative constitutionalism and the development of South African property law (part 1)

Van Der Walt, A. J. (2005-01)

CITATION: Van Der Walt, A.J. 2005. Transformative constitutionalism and the development of South African property law (part 1). Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2005(4):655-689.

The original publication is available at https://journals.co.za/content/journal/ju_tsar

Article

One of the most complicated and controversial questions in contemporary South African legal theory is whether (and how, and why) constitutional provisions - particularly the rights provisions in the bill of rights - can and should permeate (or affect the development of) private law. In one sense, this may seem like just another instance of the old problem of properly articulating the relationship between public law and private law, but I intend to analyze the problem with reference to the more problematic, dynamic aspirations of what Klare calls "transformative constitutionalism". In what has become an influential article in South African legal discourse, Klare described transformative constitutionalism as "a long-term project of constitutional enactment, interpretation, and enforcement committed ... to transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction." In this context, the project of defining the effect of the constitution on private law assumes urgency and significance beyond traditional (spatially conceived) debates about the "proper" relationship between public and private law. In what follows I will analyse the effect of the constitution on private law from Klare's dynamic perspective of transformative constitutionalism, and therefore a few introductory remarks are necessary to sketch out some of my assumptions and hypotheses about the dynamics of legal change in the South African context.

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