Informal constitutional change: towards a South African theory of unconstitutional constitutional change

Mafora, Dan

Informal constitutional change: towards a South African theory of unconstitutional constitutional change

Thesis / Dissertation

2025

Publisher

University of Cape Town

Department

Department of Private Law

Faculty

Faculty of Law

Abstract

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.

Keywords

Constitution

South Africa

Reference:

Collections

Masters

Full item page