Against Tradition: A Critique of the Transformative Adjudication of South Africa\u27s Constitutional Court

In this paper I argue that regardless of the ‘postliberal’ nature of the South African Constitution, the Constitutional Court adjudicates narrow judgments and follows classically liberal jurisprudence. Considering the ‘rebellious’ nature of the Constitution against its classically liberal predecessors, I question the extent to which judges, even if progressively engaged with South Africa’s transformation, are willing and capable of rejecting the traditional approach to constitutional adjudication. In the first chapter of this paper, I engage with the horizontal application of the Bill of Rights. While the Bill of Rights is traditionally applied vertically to protect the public against the violations of the State, the South African Bill of Rights applies directly to private parties inter se, acting as a moral code to guide all relationships in the country. In a comparative study of the United States, Canada and Germany, I conclude that, while capable of transcending the traditional application of the Bill of Rights, the Constitutional Court reluctantly establishes narrow judgments to the contrary. In the following chapter I engage with the socio-economic rights enshrined within the Constitution. While the South African Constitution provides the right to health care, food, social security and housing, it is reluctant to set substantial precedent for the protection of those rights. Comparing United States, Canadian and Irish jurisprudence, I conclude that the Constitutional Court upholds a narrow approach to socio-economic rights, failing to transcend to transcend the traditional approach of procedural balancing. While the Court’s adjudicative methods may largely remain aligned with the classically liberal approach, the Court may be able to actualize the transformative agenda enshrined in South Africa’s ‘postliberal’ Constitution