SYNOPSIS:

Social rights provisions are a hallmark of a transformative constitution. In fact, the notion of transformative constitutionalism has been inextricably intertwined with the rise of justiciable social rights, particularly in the post-apartheid South African context. More broadly, however, transformative constitutions articulate an explicit promise to change, and reflect, at their core, a commitment to substantive equality. These two transformative elements have played a significant role in the South African Constitutional Court’s interpretation and application of its social rights provisions. Specifically, the Court has used the Constitution’s promise of change and substantive equality commitment as a means of justifying its involvement in matters of social policy – so as to realise the transformation envisioned by the Constitution. It has thus adopted a contextual approach, treating social rights as part of the overall transformative project. But how is a court to enforce social rights when they are embedded in a constitution that encompasses – rather than such transformative elements – regressive elements (what may be described as a “contradictory” constitution)?
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