The foundations of transformative private law in South Africa

This article problematises a shallow understanding of "transformative private law" as being a simple merger of constitutional rights and private law. Instead, feeding into international discourse on transformative private law, it is argued that a South African iteration of the concept ought to be rooted in "transformative constitutionalism". Exploring the jurisprudential foundations of transformative constitutionalism, it becomes clear that we are not dealing with classical liberal constitutionalism. Instead, we are dealing with a type of constitutionalism committed to the legal traditions of natural law and critical legal studies that envisages a politicisation of law. Against that backdrop, it is argued that "private law" as an area traditionally thought of as being apolitical is ripe for transformative analysis and critique. However, the complicated effect of the coming together of transformative constitutionalism and private law is that the "private" in private law is weathered away. Is transformative private law then capable of existing? And if so, how?