Legal Interpretative Culture and Judicial Stewardship of the Transformation Project in South Africa

The South African Constitution is a transformative instrument supporting actionable socio-economic rights to achieve social justice—that is, justice in terms of the distribution of wealth, opportunities and privileges within society. Social justice is the recognition that all South Africans are fellow heirs, members of the same nation, sharing the same promises. South Africa is actively engaged in an agenda of reform to address the inherited and prevailing social and economic structures that perpetuate inequality. The nation’s commitment to transformation demands that the legal interpretative culture of judges align with the ‘constitutional interpretative intent’ expressed in the Bill of Rights, which is to respect, protect and promote the fulfilment of socio-economic rights and, in so doing, advance social justice through the application of the law. This article highlights how judicial passivity undermines the Constitution’s interpretative intent and jeopardises the transformation project for social justice. It argues that South African courts must apply interpretations that are constitutionally valid, and where multiple interpretations are possible, they must choose the interpretation that best promotes the spirit, purports and objects of the rights contained in the Bill of Rights. Further, the success of the transformative project depends on judges adopting a stewardship attitude—one that reflects a broader understanding of the constitutional enterprise as a whole. An attitude of judicial stewardship towards the transformation project is of critical importance for the generational progress of all South Africans, especially when a statute has been enacted to effect systemic and structural change within society. This article critically analyses South African courts’ interpretation of section 25 of the National Water Act to illustrate the implications of judicial passivity on the transformation project and the equitable distribution of resources.