Sites of Fracture

: Experiences of transformation and alienation in constitutional South Africa

Abstract

South Africa’s constitutional project has been, for many, the manifestation of the promise inherent in transformative constitutionalism. However, nearly 30 years after its introduction, there may be cause to doubt the impact of transformative constitutionalism on the lives of people in the country. Significant fractures continue to define South African society, many of which appear to follow the divides of the colonial- and apartheid- era states. Whether through a failure of implementation or a failure of design, the transformative ideas underpinning the ‘rainbow nation’ may live more in the rhetoric espoused by influential sectors of society than it does in the lives of individuals and communities in the country.

This project considers the impact that transformative constitutionalism is intended to have on societies, beyond their legal and institutional impact – an impact that includes an intention to shape and re-found the culture of a nation. The intended constitutional culture of a transformative constitution, which emanates from official institutions and from influential individuals and role-players, might not be reflected in the understandings of the state found amongst the broader population. For many people in a population, their understanding and experience of the constitutional culture of the state will be shaped by a range of factors beyond the constitutional culture from ‘above,’ forming both a perception of the constitutional culture of the state, and a constitutional culture that governs their day-to-day lives, two distinct constitutional cultures from ‘below.’ Using and adapting Hertogh’s ‘legal alienation’, the fractures that might exist between constitutional cultures from ‘above’ and from ‘below’, may contribute to a sense of alienation and exclusion. In the South African context, any alienation present as a result of the rupture between the constitutional cultures present in the country may contribute to the endurance or exacerbation of existing fractures, rooted in the colonial- and apartheid-era states, and the emergence of new fractures, rooted in the constitutional era. Together, these may threaten the legitimacy and prospects of the constitutional project.

This research project sheds light on the constitutional cultures present in the lives of people in three different communities in South Africa. Qualitative empirical work conducted in these communities provides first-hand accounts of some of the constitutional cultures present in South Africa, of the fractures between the interviewees and the state, and of the fractures between communities in the democratic South Africa. These sites of fracture and competing sites of alignment allow this research project to consider the current state of South Africa’s constitutional project and its future prospects.

Date of Award	6 Dec 2022
Original language	English
Awarding Institution	University of Bristol
Supervisor	Tony A W Prosser (Supervisor) & Akis Psygkas (Supervisor)