Acta Universitatis Danubius. Juridica, Vol 13, No 3 (2017)

Re-thinking the Constitution’s Rights-based Approaches and Klare’s ‘Social Change Phenomenon’: A View Towards Securing Human Well-being and Societal Stability

Mashele Rapatsa


This article proffers a critical reflection of South Africa’s post-1994 constitutional trajectory, with specific emphasis on interpretation, application, enforcement and realisation of first, second and third generation rights as potential panaceas to challenges inhibiting socio-legal transformation. It forges an adoption of an interdisciplinary approach, relying extensively on theoretical connotations founded in Klare’s conceptualisation of Transformative Constitutionalism and social change, the traditional rights-based approaches to human development and well-being, and Amartya Sen’s and Martha Nussbaum’s Capabilities Approach. It utilises these theories as tools of analysis, to essentially evaluate their potential impact when tested against prime values grounded in the doctrine, Ubuntu, which informs Africans’ philosophy of life, often distinguishable amongst proletariats. These tools are utilised to make an assessment of material socio-economic conditions afflicting indigent communities, in an effort to provide explanations regarding identifiable gaps existing in social policy and strict legal norms and/or instruments. It is asserted that Klare’s TC and the Constitution’s rights-based approaches will remain hollow lest not augmented by strong ideological instruments that are people-centered. Thus, it is indispensable that the Constitution’s social transformation agenda, as an ongoing process, be complemented by ideologically sound approaches that adequately safeguards the well-being of humanity.


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