Browsing by Author "Mafora, Dan"

Now showing 1 - 1 of 1
  • No Thumbnail Available
    Item
    Open Access
    Informal constitutional change: towards a South African theory of unconstitutional constitutional change
    (2025) Mafora, Dan; Boonzaier, Leo
    The Constitution of the Republic of South Africa, 1996 has changed more times than it has been amended. In this dissertation, I explore the phenomenon of informal constitutional change. In particular: I focus on how courts are able to change the content, scope and meaning of a constitution without its text ever changing. Drawing on work in constitutional theory, I explore whether such change can be legitimate outside of the scope of formal constitutional amendment and develop a framework for its identification. I also explore the constitutional difficulties engendered by this mode of constitutional change insofar as it implies an illegitimate use of judicial authority. I offer a South African case study of this phenomenon and conclude that the Constitution has been changed unconstitutionally at least once.