Constitutional transformation and decolonisation both fall short of economic justice without a capable state

Introduction

People who teach constitutional law in South Africa usually describe the 1996 Constitution as a document meant to change society and not only to limit government. That idea goes by the name of transformative constitutionalism, and it has more or less become the default answer to the question of what the Constitution is for. The trouble is that poverty, inequality and unemployment still weigh most heavily on Black South Africans (Liebenberg, 2025), and that has given a second vocabulary room to grow. Decoloniality now sits beside the first and quite often against it. Sindane (2021) goes so far as to call the older idea a poor fit for decolonial work, since the Decolonial Turn is aimed at the 1994 settlement itself. Dugard (2021), looking at mineral rights cases, finds a framework that is more open to disruptive claims than the critics allow.

This paper takes a middle position, and probably an uncomfortable one. I argue that neither reading can deliver economic justice by itself. The reparative reasoning that has started to appear in housing and property cases is real, but the courts applying it have been uneven (Dugard, 2025; Van der Merwe, 2023). The decolonial critique is right that the settlement left structures of wealth and knowledge largely where they were (Niemand, 2023; Sindane, 2021), though it says much less about how a constitutional order might be used to move them. What both underplay is the state. The country’s economic problems appear to start in politics, policy and weak administration, and a constitution cannot repair those on its own (Steytler, 2022). The discussion runs through the two readings, then the record of the courts on economic rights, then property, and finally the question of capacity.

Two readings of one settlement

Sindane (2021) begins from the point that the two vocabularies do not share a starting place. Decoloniality, as he reads it, starts from coloniality in being, power and knowledge, and it treats the constitutional era as colonial rule in altered form and not a break from it. Borrowing Modiri’s distinction, he says apartheid has an afterlife rather than an aftermath. A project built to correct past injustice is then aimed at the wrong target, because the injury is present: ongoing dehumanisation and poverty. He also finds equality before the law awkward as a founding value, since the people who were colonised were not part of the negotiations. All of this is an argument about concepts, and it appears in a rejoinder to another author’s piece on legal education, so it should not be asked to carry empirical weight. It tells us what the 1994 settlement assumed. It does not measure what the Constitution has done, and Dugard (2021) is closer to measurement than the rejoinder is.

Niemand (2023) pushes in the same direction from the side of knowledge. The concern there is epistemic justice, and the argument is that the doctrine of transformation has left coloniality standing and has pushed indigenous knowledge further out. In that account, ubuntu was invoked in the interim 1993 Constitution but dropped out of the final text, and the CSIR filed a patent in 1998 on compounds from a plant the San had long used, without prior consent or any sharing of benefits. Niemand also draws on critics who say that the constitutional framework froze the divided economic structure and kept white privilege intact (Niemand, 2023). That last claim is the one that matters for this paper, but notice that the article’s own case studies are about knowledge and not about money. Carrying the argument across to wealth is a further step, and from what I can tell neither Niemand nor Sindane (2021) takes it.

Dugard (2021) reads the same Constitution from the case law. She examines a series of emblematic mineral rights cases and asks how judges have treated the transformation mandate when marginalised groups contest it. Her conclusion, as the abstract has it, is that the constitutional framework has proved receptive to increasingly disruptive claims, including claims in which communities end up against more conservative government ideas of what transformation means. That sits awkwardly beside the idea that the text simply locks the old order in. It should not be over-read either. Mineral rights are one field, and an unusual one, because the state itself was trying to reshape ownership through legislation. A framework can be open to disruption in that setting and still be closed in the settings where the state is on the other side (Dugard, 2021; Sindane, 2021).

What the two camps share is a view that today’s distribution is the product of conquest and apartheid. Where they split is on whether the Constitution is part of the cure or part of the problem. I do not think that question can be settled in the abstract, and the more useful thing to do is look at what the text has actually allowed in particular fields. Liebenberg (2025) is a good place to start, because she asks exactly that about socio-economic rights, and Niemand (2023) and Sindane (2021) supply the sharpest reasons to doubt the answer will be comfortable.

What the courts have done with economic rights

Liebenberg (2025) offers the most direct test of whether the text can carry a reparative load. She argues that corrective justice, which tries to put victims back where they would have been but for the wrong, does not fit an oppressive system that lasted generations. She prefers a structural account of reparations, in which the burden falls mainly on those who benefit from the unjust arrangements. Her reading of the early housing and water cases is that history sat at the margins. In Grootboom the Constitutional Court found that the national housing programme failed people in desperate need, but it declined to define a minimum core, and the apartheid backdrop did not drive the result [2000] ZACC 19. By Commando in December 2024 the Court was willing to say that the City of Cape Town unreasonably compounded the legacy of spatial apartheid by providing no temporary emergency accommodation in the inner city for people evicted from Woodstock [2024] ZACC 27. Liebenberg (2025) treats that as a promising turn.

One decision is not a jurisprudence, though, and Liebenberg (2025) is open about the institutional limits of courts. She still argues that how cases are framed, how rights are read and how remedies are built can matter beyond the parties. Commando ordered the City to develop a reasonable emergency accommodation policy and to house the applicants in Woodstock, Salt River or the inner city precinct within six months. That is concrete. It is also an order about a handful of people in one part of one city. So the reparative turn looks genuine in its own right but small when set against the size of the problem it describes (Liebenberg, 2025; Dugard, 2025).

Basson (2023) comes at the same problem through equality law. Working from Nancy Fraser, he argues that the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 can be read to capture poverty-based discrimination along three intersecting axes. He calls them misrepresentation, maldistribution and misrecognition, which in his account stand for political marginalisation, material disadvantage and the prejudice, violence and stigma that come with being poor. He then proposes three inquiries for adjudicators. What stands out is the verb. The Act could be interpreted this way, he says, which makes the piece an argument offered to courts and not a report of what courts have done (Basson, 2023). It does suggest the statutory text is roomier than Sindane’s (2021) critique implies. Whether anyone uses the room is another question.

Below the apex the record is harder to read as progress. Van der Merwe (2023) notes that South Africans are among the most indebted consumers in the world, that debt collection has grown into an industry with billions of rands at stake, and that debtors depend on courts to curb abusive practices. In Bayport Securitisation Ltd v University of Stellenbosch Law Clinic the Supreme Court of Appeal had a chance to show a commitment to constitutional values in debt collection, and he finds the ruling open to serious criticism for its indifference to those values. Dugard (2025) compares five land rights decisions of the Land Claims Court, the Supreme Court of Appeal and the Constitutional Court between 1996 and 2024 and concludes that the Land Claims Court has not lived up to the role of driving change that was expected of it. She then asks what its conservatism says about courts as engines of social change in new democracies. Put these two next to Commando and the picture is uneven. The text can bear a reparative reading, and not every court reading it chooses to.

That unevenness matters for the larger argument. When a court fails debtors, nobody needs a theory of coloniality to see that an available constitutional value was ignored. The failure looks more like judicial method and habit than a flaw buried in the 1994 deal, which fits neither the strongest decolonial claim nor an easy optimism about the Constitution (Van der Merwe, 2023; Dugard, 2025). I would put it this way, following Sindane (2021) only part of the way: the settlement may set the baseline, but a good part of what happens above that baseline is still decided by how particular judges read particular cases.

Property, where the critique bites hardest

Property is where the decolonial worry looks strongest and the liberal frame looks most settled. Section 25 of the Constitution protects property but allows expropriation in the public interest, subject to just and equitable compensation guided by the factors in section 25(3) (Constitution of the Republic of South Africa, 1996). In Agri SA v Minister for Minerals and Energy the Constitutional Court held that the Mineral and Petroleum Resources Development Act 28 of 2002 deprived the rights holder of various entitlements but did not expropriate them, because the state had not acquired them [2013] ZACC 9. Froneman J, with Van der Westhuizen J concurring, wrote separately on compensation and treated the unused old order rights as just and equitable compensation in kind. Kruger (2024) builds on that concurrence. He separates radical change from ordinary reform and presents compensation in kind as a framework for purposive and wide-ranging change in property through legislation, with the section 25(3) factors aimed at maximising both old and new goods. He admits the approach needs clarifying and that transformation means giving up some goods for others (Kruger, 2024).

Notice where this opening sits. It is in a concurring opinion, and the majority treated acquisition by the state as a central feature of expropriation [2013] ZACC 9. So the liberal frame has an exit, but nobody has yet walked through it in a way that binds. Van Staden (2021) argues in the opposite direction. He examines the draft Eighteenth Amendment Bill of 2019, which speaks of cases in which the amount of compensation is nil, and says that the wording changes the form of the proposal and not its effect, because compensation and expropriation are legally tied together and a nil payment is still a payment. He treats this as a possible case of fraus legis, the evasion of a law’s application. He writes from free-market organisations, and his argument depends on the premise that expropriation without compensation is close to a contradiction in terms (Van Staden, 2021).

Read together, Kruger (2024) and Van Staden (2021) show something useful. Two authors working inside the same property clause reach opposite views on how much change it permits, so the text is contestable and not closed. That cuts against the flattest version of the decolonial critique. But Van Staden’s premise is also exactly the kind of baseline that Sindane (2021) has in mind when he points out that the colonised were absent from the settlement. If lawful title is where justice begins, then the question of what was taken before 1994 has already been answered in advance. Dugard (2025) adds a practical wrinkle: the Land Claims Court was created in 1996 on the expectation that it would push for transformation, as land courts in other transitional societies were meant to, and her comparison suggests it has not.

The state the Constitution cannot supply

Steytler (2022) supplies the correction that both camps need. In his account the 1993 and 1996 constitutions helped shape a market economy on the assumption that a developmental state would lead the change after apartheid. The Bill of Rights protected property, a competitive market and, indirectly, freedom of contract, while workers’ rights and socio-economic rights were meant to correct for market failure. Then the economy went into recession during the Zuma presidency. The claim now heard is that parts of the Constitution, such as the property clause, workers’ rights or the independence of the Reserve Bank, hold back growth. Steytler (2022) says that claim hides the fact that the problems originate in politics, policies and an incapable state, and that the Constitution will not resolve the crisis, although future policy should still rest on constitutionalism because it brings stability and supports growth and fair distribution.

This whole thing changes how the earlier evidence reads. A court can order Cape Town to find emergency accommodation near Woodstock (Liebenberg, 2025). It cannot build the housing, staff the department or fix the procurement system that pays for it. The same goes for the reparative reading of equality law proposed by Basson (2023), which would still need a state able to turn a finding of poverty discrimination into some material change. Steytler’s point is not that the Constitution is irrelevant. It is that the two readings I started with both talk as if the main question were how to read the text, when a lot of the answer lies in whether government can govern. Decolonial writers are right to say the baseline is unjust, and the reparative strand of constitutional thinking is right to say the text can be used. Neither has much to say about delivery.

There are limits to how far this paper can push the point. Much of the scholarship I have drawn on is doctrinal or conceptual. Several of the pieces are single-field studies, and some, like Basson (2023) and Kruger (2024), are proposals about how courts could reason and not studies of what courts did. Only Dugard (2021; 2025) comes close to a systematic look at outcomes, and even she works with a small set of cases. I found no study that traces a court decision to a change in household income, which means the claim that political economy matters more than interpretation is an inference from the pattern, not a demonstrated result. Steytler (2022) states the point firmly, and from the summary of the chapter available to me it rests on argument about policy and politics more than on measured outcomes.

Conclusion

My position is that the quarrel between transformation and decoloniality is real but badly placed. The decolonial critique identifies something the other tradition has sometimes skated over, namely that the settlement took existing title and existing legal categories as its starting point (Sindane, 2021; Niemand, 2023). The reparative strand of the older tradition shows that the text can be read to do more than its harshest critics allow, in housing, in equality law and perhaps in property (Liebenberg, 2025; Basson, 2023; Kruger, 2024). Yet the courts have used that room unevenly, and the Land Claims Court and the debt cases show how easily the openings go unused (Dugard, 2025; Van der Merwe, 2023).

Economic justice, if it arrives, will need three things at once. It needs reparative adjudication that takes history seriously, a willingness to question the baseline that decolonial writers insist on, and a state that can actually carry out what courts and legislatures decide (Liebenberg, 2025; Steytler, 2022). The third is the one the literature handles least, and Steytler (2022) is nearly alone in saying so plainly. For students of constitutional law the practical lesson is probably to stop treating the choice of vocabulary as the main event. The more telling question about any decision or statute is what, concretely, it would take for it to change someone’s material position, and who has to do the work.

Reference list

Basson, G. (2023) Poverty discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act: a transformative substantive equality approach. South African Journal on Human Rights, 39(1), pp. 26-51. doi:https://doi.org/10.1080/02587203.2023.2214373

Dugard, J. (2021) Evaluating transformative constitutionalism in South Africa: a view from the mineral rights adjudication looking glass. Nordic Journal of Human Rights, 39(3), pp. 373-390. doi:https://doi.org/10.1080/18918131.2021.2003960

Dugard, J. (2025) Testing the transformative premise of the South African Land Claims Court: a comparison of Land Claims Court, Supreme Court of Appeal and Constitutional Court land rights’ decisions, 1996-2024. Constitutional Court Review, 15(1), pp. 429-454. doi:https://doi.org/10.2989/ccr.2025.0015

Kruger, M. (2024) Compensation as radical transformation. Potchefstroom Electronic Law Journal, 27, pp. 1-33. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a16796

Liebenberg, S. (2025) Reparative justice in South Africa’s socio-economic rights jurisprudence. Constitutional Court Review, 15(1), pp. 91-140. doi:https://doi.org/10.2989/ccr.2025.0005

Niemand, L. (2023) Moving beyond the abyssal line: the possibility of epistemic justice in the ‘post’-apartheid constitutionalism. Pretoria Student Law Review, 16(1), pp. 216-238. doi:https://doi.org/10.29053/pslr.v16i1.4514

Sindane, N. (2021) Why decolonisation and not transformative constitutionalism. Pretoria Student Law Review, 15(1), pp. 236-254. doi:https://doi.org/10.29053/pslr.v15i1.3669

Steytler, N. (2022) ‘The unravelling of the constitution, economy, and constitutionalism in South Africa’, in Fombad, C.M. and Steytler, N. (eds.) Constitutionalism and the economy in Africa. Oxford: Oxford University Press, pp. 125-152. doi:https://doi.org/10.1093/oso/9780192886439.003.0007

Van der Merwe, S. (2023) Judicial intervention and the call to transformative constitutionalism in the context of consumer law, debt collection and the National Credit Act: Bayport Securitisation Ltd v University of Stellenbosch Law Clinic. South African Law Journal, 140(2), pp. 328-364. doi:https://doi.org/10.47348/salj/v140/i2a4

Van Staden, M. (2021) Fraus legis in constitutional law: the case of expropriation ‘without’ or for ‘nil’ compensation. Potchefstroom Electronic Law Journal, 24, pp. 1-31. doi:https://doi.org/10.17159/1727-3781/2021/v24i0a10406

Legislation and case law

Agri South Africa v Minister for Minerals and Energy [2013] ZACC 9; 2013 (4) SA 1 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2013/9.html (Accessed: 18 October 2026).

Charnell Commando and Others v City of Cape Town and Another [2024] ZACC 27; 2025 (3) SA 1 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2024/27.html (Accessed: 18 October 2026).

Constitution of the Republic of South Africa, 1996. Available at: https://www.gov.za/documents/constitution-republic-south-africa-1996 (Accessed: 18 October 2026).

Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2000/19.html (Accessed: 18 October 2026).