Transformative constitutionalism: an experimentalist approach

Abrahams, Charles

Transformative constitutionalism: an experimentalist approach

Thesis / Dissertation

2026

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

For more than a century, South African legal culture has been in the grip of a nineteenth century methodological orthodoxy namely, doctrinal legal formalism or simply, formalism. It regards law as a closed-gap system and deploys quasi-deductive, Euclidian reasoning to arrive at the single correct answer to legal questions. However, since the onset of the post-1994 constitutional era, a methodological transformation began to occur in several areas of South African law. In statutory interpretation, higher courts moved from a textualist or literalist cumintentionalist approach to a purposive, contextualist approach as evident in cases such as Zuma,1 Mhlungu2 and Makwanyane 3. In common law cases concerning the ‘state duty to protect', such as Carmichele,4 Modderklip,5 Bhe6 and Jaftha,7 courts adopted a context-bound, pragmatic approach. However, in ‘freedom of contract' cases such as Brisley,8 Afrox,9 Wagener,10 Barkhuizen11 and Beadica,12 our higher courts not only opted to remain committed to formalist reasoning but increasingly resorted to the mid-twentieth century policy and principle reasoning, also known as neo-formalism. The deployment of formalist and policy and principle reasoning in Beadica, the central focus of this thesis, demonstrates how it constraints the interpretation of the constitutional mandate to transform the common law and customary law in accordance with ss 39(2)13 and 8(3)14 of the Constitution to achieve structural transformation in South Africa. It restricts rather than enlarges the interpretative scope by meticulously circumscribing its underlying assumptions. It also relegates the Constitution's normative values to a subsidiary role of ‘abstract values' to merely perform ‘creative, informative and controlling functions in that they underlie and inform the substantive law of contract'15 whilst it affirms the predominance of policy considerations of ‘freedom of contract' and pacta sunt servanda. It is a view of law which favours the internal logic of the common law – meaning, ‘the common law works itself pure'16. This thesis argues that legal formalism and policy and principle reasoning constitute a stranglehold on South Africa's legal culture and are ill-suited to undertake the constitutional mandate to transform the common law and customary law. In demonstrating its inaptness, this thesis deconstructs the fallacious assumptions underlying doctrinal formalism for its mechanical quasi-deductive and Euclidian-like reasoning and typological outlook to discover ‘the inbuilt legal content of a type of social, political, and economic organization: notably, the legal regime of a “free society 17. Notwithstanding its deconstruction by legal realists in the early twentieth century, formalism stubbornly retained its stranglehold on South African legal culture amidst the making of two racially exploitative states – British colonial South Africa and Apartheid South Africa. However, since the advent of the post-1994 constitutional dispensation, formalist reasoning is increasingly giving way to policy and principle reasoning as the preferred mode of reasoning in South African legal culture. It regards law as a system of rules and principles which largely cohere together by attributing purpose to law and describing it in idealising and generalising language of policy and principle. US academic, Karl Klare aims to unseat South Africa's formalist legal culture and, by implication, policy and principle reasoning through transformative constitutionalism which is predicated on three main tenets – post liberalism, legalism and critical legal realism. It regards certain features of the Constitution as different from other liberal constitutions which Klare attributes as postliberal. It draws on Duncan Kennedy's ‘indeterminacy of law' approach to argue in favour of softening the bright-line distinction between law and politics. It invokes critical legal realism to undertake a ‘jurisprudentially progressive policy' approach through interest balancing and proportionality tests. Whilst it has largely been positively received, transformative constitutionalism has come under sustained attack. Theunis Roux argues that Klare's postliberalism can easily be interpreted using a liberal ‘Dworkinian' approach. Karin Van Marle and Isaac Shai attack the foundations of transformative constitutionalism, notably its legalism, through its ‘limits of law' critique. Sanele Sibanda and Joel Modiri attack each tenet of transformative constitutionalism through their ‘Eurocentric' critique. This thesis proposes a revised account of each of the main tenets of Klare's transformative constitutionalism by adopting Roberto Mangabeira Unger's experimentalist approach to law. It views law as the institutional life of a society, different from the two dominant conceptions of law - ‘law as immanent moral order' and ‘law as the will of the sovereign'. It adopts a postliberal interpretation of the Constitution based on Unger's idea of ‘deep freedom' which transcends equality or egalitarianism and is deeply committed to individual and collective empowerment. It rejects Klare's ‘indeterminacy of law' approach in favour of Unger's ‘determinacy of law' approach. Instead of deploying critical legal realism in a ‘jurisprudentially progressive' manner through interest balancing and proportionality tests as Klare does, it relies on Unger's ‘reconstructed fighting theory of law', experimentally deployed, to achieve legal pluralist outcomes. Based on this revised account of transformative constitutionalism, this thesis undertakes three cases studies - Beadica, Daniels and Uber - adopting Unger's experimentalist approach. It outlines how each of these cases can be adjudicated using alternative methodological and theoretical bases to demonstrate that law consists of dominant and deviant solutions rather a coherent system as is the view of legal formalism and policy and principle reasoning. In Beadica, it deconstructs the underlying assumptions of the ‘insider canon' bilateral executory contract theory and offers relational contract theory as an alternative ‘outsider canon' as a basis for adjudicating the case. It considers Davis J's high court judgment, in which he resorts to the exceptio doli generalis and Froneman J's minority Constitutional Court judgment, in which he proposes a “substantive rule” in respect of the exceptio non adimpleti contractus, as attempts at extending the remedial scope within the bilateral executory contract theory. This thesis argues that whilst progressive, these approaches are modest attempts at enlarging the scope of the bilateral executory contract theory from within the canon. Relational contract theory offers an alternative, outside the established canon. In Daniels, it critiques the court a quo's unquestionable acceptance of the unified theory of property. It concurs with the Constitutional Court's ‘human dignity' approach but views it as a missed opportunity in which alternative common law approaches to property such as Hohfeld's property as ‘a bundle of rights' and Singer's property as ‘social relations' could richly inform the development of new constitutional remedies. In Uber, it argues that Uber drivers are modern-day platform ‘gig-workers', working in a new ‘digital “putting-out” system', analogous to pre-industrial British workers, working within the ‘putting-out' system. In adjudicating cases involving platform owners and workers, this thesis argues that courts should look beyond the traditional categories of employer-employee contractual relationship or independent contractor to forging new categories such as that of hybrid dependent contractors. In conclusion, it argues that a revised approach to Klare's transformative constitutionalism opens rather than forecloses the interpretive possibilities of how the constitutional mandate to transform the common law and customary law is pursued. It allows space for law to be made and developed in pluralist ways instead of the narrow, conservative approach of doctrinal formalism and the policy and principle approach. However, for experimentalism to flourish, it requires severing the umbilical cord of doctrinal formalism and policy and principle reasoning which hitherto constitute a stranglehold on South African legal culture. 1 S v Zuma 1995 (2) SA 642 2 S v Mhlungu 1995 (3) SA 867 3 S v Makwanyane 1995 (3) SA 391 4 Carmichele v Minister of Safety & Security 2001 (4) SA 938 5 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5 6 Bhe v Khayelitsha Magistrate 2005 (1) SA 580 (CC) 7 Jaftha v Schoeman 2005 (2) SA 140 (CC) 8 Brisley v Drotsky [2002] ZASCA 35 9 Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) 10 Wagener v Pharmacare Ltd, Cuttings v Pharmacare Ltd 2003 (7) BCLR 710 (SCA) 11 Barkhuizen v Napier 2007 (5) SA 323 (CC) 12 Beadica 231 CC v Trustees for the time being of the Oregon Trust [2020] ZACC 13 13 Section 39(2) states: ‘When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.' 14 Section 8(3) states: ‘When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court- (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1).' 5 Ibid paras 72 - 73 16 Omychund v Barker (1745) 26 ER 15 17 Roberto Mangabeira Unger The Critical Legal Studies Movement: Another Time, A Greater Task (2015) 9