Delivering the 16th Annual Human Rights Lecture on ’transformative societal change and the role of a judge in post-apartheid SA’ at Stellenbosch University, Gauteng Judge President Dunstan Mlambo homed in on ‘transformative constitutionalism' and why it necessarily requires the judiciary to 'transform legal culture and judicial mindset in line with constitutional dictates’. A Daily Maverick report notes Mlambo said: ‘It has been emphasized many times that our Constitution embraces an aspiration and an intention to realize in SA a democratic, egalitarian society committed to social justice and self-realization opportunities for everyone.’ While judges must be mindful that the legislature has superior competence to make law, they must not shy from developing common law because they are both bound by the Constitution to fulfil its vision, Mlambo said. He stressed that section 172 of the Constitution mandates judges to reject any law that is not in line with the Constitution and that its role is to ensure that judges are able to bring about the Constitution’s aspiration to bring about social and economic transformation.
The Constitution also mandated ‘judge-made law’, which directs judges to develop new methods for adjudicating and come up with new criteria to deal with common law questions as purported by the Bill of Rights for a just, democratic, and egalitarian social order. ‘There are no longer assertions that the law can be kept isolated from politics; while they are not the same, they are necessarily and inherently linked,’ he said, quoting former Chief Justice Pius Langa. According to the DM report, he noted SA’s legal practice, and to a certain extent the judiciary, was conservative and the most difficult to transform, owing to its apartheid past which was too formal and draconian, which was evidenced by a reluctance of the courts to develop common law in line with constitutional law. Mlambo did, however, concede that this reluctance was waning – there was ‘residual deference to common law which will be turned around in the fullness of time. I hope so’. Another constraint was the ‘diverse background’ from which the Bench draws. ‘Our own lived experiences have a huge bearing on how we process legal issues, hence the importance of constitutional conscientization through judicial discussion forums.’ This would go a long way towards dismantling the conservative legal mindset. The penchant for looking at contemporary issues through the ‘prism’ of common law needed to change to looking at cases through a constitutional prism, he told the audience.