I have often been asked over these past four years what my Doctor of Laws (LL.D.) thesis is about, and I always have trouble answering off the cuff. Now that the thesis has been successfully completed and I am to graduate in May, I am in a position to provide a consumer-friendly bird’s eye view of what has been occupying me academically for almost half a decade.
This is the first, overview, article of a non-sequential series in which I will be seeking to make the main parts of my thesis more digestible for those not eager to wade through 500 pages of academic research.
“Transformation”
After perhaps only “braai” and “crime”, the national word of South Africa is undoubtedly “transformation”. We hear, daily, that this person or place or institution, or that culture or practice or idea, has or has not “transformed” adequately or at all. Most South Africans instinctively get the gist of what this implies, but rarely has it been critically considered and deconstructed.
In the arena of constitutional discourse – that is, the debates and opinions of jurists (mainly law academics, judges, and sometimes politicians) – this is what my thesis seeks to do. Because while we might hear about “transformation” in everyday politics, it is fundamentally a product of this discourse over several decades, beginning in the 1980s.
Given the prominent – overwhelming – role that “transformation” occupies in the judgments of our superior courts, especially the Constitutional Court, and in the minds of our lawyers and legislators, I sought to understand where this idea comes from, what it really amounts to, and what implications it has for South Africa’s future.
It was immediately clear that the meaning of “transformation” today is almost perfectly uniform.
There was a time, up to the 1990s, when there was contestation about what the “transformation of South Africa” meant. For example, John Hlophe, today leader of the opposition in Parliament, in 1995 had in mind a South Africa where the courts and law protected civil liberty against overzealous government. But by the 2000s, even Hlophe – among virtually all his fellow participants in the discourse – had shed such notions in favour of the ubiquitous racialised meaning behind that term.
What was also clear was that “transformation” did not just apply in one field.
We often hear that a workplace is not “transformed”, which usually means the employees there do not reflect South Africa’s racial demographics, but this is not the only context in which this notion arises. Land reform – specifically property dispossession – is also entwined with the language of transformation, as is freedom of expression (in particular, hate speech law), among many other areas of contestation.
An ideology of law
It was not arbitrarily decided that South Africa would continue to elevate race to a key principle of law and public policy after the supposed end of Apartheid in 1994.
Despite many attempting to present it as natural that if people were impoverished on the basis of race, they must be empowered on the basis of race, this seemingly intuitive declaration fails upon the realisation that empowerment-after-injustice only sustainably succeeded on the back of free markets and self-determination. After all, South Africa’s own limited period of real economic growth was after Apartheid ended and before the radicalisation of racial legislation.
So, no, there is nothing natural about what is happening.
Instead, what we have is a largely uniform, cohesive understanding about a set of ideas, more particularly a set of supposed imperatives, of what South Africa should be. This means that we are fundamentally dealing with an ideology.
Transformation, manifesting in what many opportunists like to call transformative constitutionalism, or what I have taken to call (following the lead of Professor Koos Malan) Transformationism, is the dominant legal-political ideology among the participants in South Africa’s constitutional discourse. And it is arguably South Africa’s state ideology per se.
This ideology functions according to four interrelated pillars.
History of injustice
The first pillar is historical injustice.
This is perhaps the most important aspect of Transformationism because it acts as the legitimising mechanism or metanarrative. Without the spectres of colonialism and Apartheid, all the calls to transform would lose most of their discursive and political punch.
Transformationism and its adherents – whom I have taken to calling transformaniacs – declare, usually without argument, that South African history, taken to be everything before 1994, is irremediably evil and depraved. Rather than viewing colonialism as a natural event that has occurred everywhere, forever since the beginning of time, and Apartheid as one of many manifestations of more or less normal authoritarianism experienced throughout post-colonial Africa during the twentieth century, these periods of our history are presented as the most evil things that could possibly have happened.
Colonialism and Apartheid are presented as on par with, if not exceeding, the horrors of the Holocaust under Nazi Germany, the Holodomor in the Soviet Union, and the Great Leap Forward in Red China.
To the transformaniacs, the whites found a region in peace and harmony and brought unparallelled and unprecedented suffering and villainy to it. In this process, the white elite did not simply oppress those who did not look like them, they actively classified them as “sub-human”. And not merely did they commit grave injuries to lives and livelihoods, they engaged in epistemicide by destroying the sophisticated ways of knowing found here.
Nothing that happened before 1994, except the resistance to racism, is commendable, or in many ways even notable.
That South Africa produced Jan Christiaan Smuts, in many ways the man behind the international order as we know it today, is viewed by Transformationism exclusively as a footnote to the fact that Smuts was not a cosmopolitan racial individualist.
Not even the positive role South Africa played in the global fight against fascism during the Second World War is characterised as an illustrious moment. Any talk of South Africa during that war is grounded in domestic racial policy.
Everything before 1994, except the struggle waged by the African National Congress and its allies, is a footnote to evil. No nuance in respect of South African history is deemed acceptable.
Social engineering
With historical injustice as an indisputable meta-fact that colours everything that has ever happened in more than three centuries of South African history, Transformationism proposes that nothing borne out of this all-encompassing injustice could be legitimate.
The law, political presuppositions (except, of course, the indisputable authority of the state), economic relations, interpersonal dynamics, cultural phenomena, and even the psychology of individuals themselves, are all, by default, problematic. And as a result, they must be changed.
Everything is subject to change. There is no meaningful exception.
That complex system that is “society” must be reconstructed according to the ideologically pre-set design of Transformationism.
The state will, among many other things, eventually dictate the precise racial proportions that must be evident in every industry and sector, every sports team, every school, and so on. Not only that, but it will also dictate the very mentality with which businesses must operate, and schools and faculties must teach their curricula. No space, not even the family or the psyche, is too intimate to be regarded as exempt from the imperative of transformation.
Spontaneous order is deemed to be insufficient at best, and another manifestation of injustice at worst.
The law may only serve to enable Transformationism’s social engineering, and never be construed as an impediment to it.
The old view of constitutionalism and constitutional law – that the political elite must be legally restrained in their ability to impose their preferences on society – is said to be outdated and fundamentally backwards. To Transformationism, the role of law in society is not to guarantee public order and define the limits of people’s rights, but to be an instrument for government to realise its utopian designs.
Equity and equal outcomes
If the role of law in society is fundamentally that of a tool for social engineering, towards what must society be engineered, in light of South Africa’s history of injustice?
Transformationism is self-consciously an ideology of the left. Rhetorical flourishes aside, even its most “Africanist” and “conservative” advocates utilise exclusively the terminology and logic of Marxism and its latter-day offshoots – which means it is unsurprising that the goal to which the law must be brought to bear is comprehensive equity.
In the parlance of the day this is referred to as “substantive equality”, to distinguish it from the dismissively so-called “formal equality” that is ascribed to classical liberalism and other centrist or moderate worldviews. “Mere” equality before the law and equality of rights are dismissed as institutions that protect the ill-gotten gains of those who have benefited from historical injustice.
“One cannot eat rights”, transformaniacs declare, and thus total state dependency must be the order of the day. Real equality means equal outcomes. Some of them even go so far as to argue that “difference” may only be tolerated to the degree that the consequences of difference are “costless”. Only cosmetic difference is acceptable – the rest must be ruthlessly engineered into utopian egalitarianism through state power.
Transformationism regards inequality and destitution as synonymous, with inequality being the primary point of focus. All state programmes must be aimed at reducing inequality, with the tacit assumption – at least among the unwitting public – being that this also means a reduction in destitution. In reality, inequality is a very specific phenomenon which, if “solved”, might leave destitution intact or even worsened.
And a notable “solution” to inequality, that transformaniacs have defended since the early 1990s, is discrimination against the supposed privileged. “Neutral” or “like” treatment – formal equality – is unacceptable, meaning that Transformationism does not simply regard equality at law as insufficient, but as an active impediment to its radical designs.
But do not mistake so-called “substantive equality” as being concerned only with economic outcomes.
Adam Habib, a notable transformaniac, has argued that post-Apartheid empowerment policy must be racial because it should not only serve to tangibly help the downtrodden – it must also offer them “psychological liberation”. If poor whites also qualified under affirmative action programmes, for example, this would not “deracialise” poverty. Those poor whites, in other words, must face a measure of deprivation so that poor blacks may be liberated psychologically and emotionally.
Pierre de Vos, also a well-known transformaniac, has written in the same vein that it is problematic in modern South Africa that whites “inhabit their skins” with “ease”. The comfort and contentedness of whites in South Africa is part of the legacy of Apartheid that must be “addressed”.
Statist authoritarianism
All of this is well and good, but how? How does Transformationism seek to use the law to socially engineer South Africa towards an egalitarian utopia after a history of irremediable evil?
In this respect, Transformationism is not at all unlike its Apartheid predecessor or any other system of authoritarianism in history. The architects of Apartheid were not content with the fact that an overwhelming majority of whites voluntarily chose only to marry other whites – with the exceptions being so few it was barely notable – so they decided to ban it and deploy the violence of the state.
Similarly, all the gains that black South Africans were starting to make from the 1980s as a result of significantly relaxed racial policy and voluntary initiatives by big business, and especially after 1994, were deemed irrelevant. Change cannot be gradual and spontaneous. It must be immediate and compulsory.
During the transition, transformaniacs made it abundantly clear that the centralisation and authority of government that had come about under the National Party must remain intact. The power of the state is not to be weakened with legal limits or diluted with federal designs. The gains for limited government that Transformationism had to compromise on – in the Constitution we have today – are viewed with disdain, and have had to be “read away” by ideologically complicit courts.
Transformationism subscribes fundamentally to the socialist principle of unified power, which holds – in contrast to the Western separation of powers – that all arms of state must work in tandem to achieve the common goal of complete social reconstruction. The courts are no exception to this imperative, and the notion of “transformative constitutionalism” came about precisely to induce a mentality of cooperation from the courts with the political agenda of the post-Apartheid regime.
Transformaniacs like Albie Sachs and Dennis Davis were explicit during and after the transition: if the courts are not as committed to the state’s new legal ideology as the executive and the legislature are, then the courts must be restrained. They should not dictate policy. They must give the government a wide berth. However, if the courts are committed to the ideology, far from being restrained, they need to be immensely active, and ensure the new government is kept strictly on the narrow path of transformation without deviation.
As Koos Malan has pointed out, this is why, today, the courts are reluctant to entertain legal challenges to the substance of Transformationist legal logic. Judges often do not even wish to legitimise such challenges, going so far as to rebuke AfriForum for daring to go to court to try and protect (constitutionally entrenched) cultural rights. But the courts are often eager to find against government in corruption and mismanagement cases, because corruption and incapacity ultimately undermine the achievement of Transformationism.
Society is not exempt.
Not only do all arms of state have to work towards Transformationism, but all sectors of society must, too. The Promotion of Equality and Prohibition of Unfair Discrimination Act says exactly this in so many words. Notions of political decentralisation or voluntary civic initiative are anathema, and deemed to be anti-transformation.
Marxism and Critical Theory
The ideology of Transformationism is not a homegrown phenomenon, despite the best efforts of some decolonial thinkers to pretend that their activities are about embracing an “authentic Africanism”.
In reality, Transformationism is constructed from European and American parts, and where better to start than with orthodox Marxism?
The notion of a perpetual class struggle until a radical economic reordering is achieved sits at the heart of Transformationism’s agenda, and many of South Africa’s race laws are directed to this very end. Thus, while private enterprise is conceptually tolerated to a degree, the ideal remains for the state to act as a proletarian vanguard that might even expropriate property without compensation to achieve Transformationist ends.
Mention has already been made of the socialist principle of unified power, which was seamlessly imported from the East German, Soviet, and Red Chinese constitutions while using the West German-inspired notion of “cooperative governance” as a convenient façade.
But Transformationism draws perhaps more from what has come (contentiously) to be known as neo-Marxism, often associated with the “Frankfurt School” of “Critical Theory”. This is due to the particular racial (as opposed to pure economic class) dynamics at play in South Africa.
In this respect Antonio Gramsci’s concept of cultural hegemony is key.
Gramsci essentially held that the disadvantaged have been made to unwittingly consent to their second-class status through the cultural hegemony of the primarily economic but also racial elite.
In South Africa’s case Transformationism assumes that the vile whites, who have tainted the region since 1652, have impregnated the very language that everyone speaks and the very common sense of society with self-serving utility.
Thus, for example, a word and idea like “merit” is ipso facto deemed anti-transformation, because merit is seen as a dog-whistle that simply translates to white supremacy. “Merit” just means whites (or blacks with false consciousness) benefit other whites, because the characteristics of “being white” in the particularly South African context – supposedly more likely to have experience, means of transport, an education, etc. – are made synonymous with a “more meritocratic choice”.
To the degree that the disadvantaged class buys into the idea of “merit”, it is therefore deemed to have a false consciousness. The ‘disadvantaged’ thus provide implicit consent to their own oppression.
Transformationism in other words strikes at the very root of various social phenomena in order to dismantle what it perceives to be the cultural hegemony of whiteness or capitalism. Nothing, not even parental choice or sports, is free of being a product of cultural hegemony, and thus not free of being subject to compulsory change.
Postmodernism
There is much overlap here with the ever-undefinable postmodernism.
To postmodernists, essentially, everything is relative, fluid, and malleable. There are no rules. The only thing that matters is power, and who wields it.
For liberals or conservatives to say, for instance, that social engineering is misguided and does not produce prosperity, or that constitutional law must limit the political elite in the imposition of its will, transformaniacs will simply reply with “Says who?”, and no answer will be acceptable.
If we say “economics” or “data”, they will “deconstruct” that answer until we arrive at the whole field of economics supposedly being culturally contingent on white experience.
Appeals to legal principle will not fly, either, because these “objective” principles will similarly be dismissed as mere outgrowths of white-centric civilisation and ultimately worthless in the “lived experience” of South Africa’s reality.
Legal realism and Critical legal theory
There are another two notable influences on Transformationism that are closely related.
The first is American legal realism, which in essence sought to explain that when legally binding decisions are made, particularly by judges, the determinations cannot be explained by textbook law or apparently neutral legal rules. Rather, it is in the judge’s own, entirely subjective preferences and prejudices (not merely their interpretations), that the true reason for the decision is to be found.
Judges contort legal principle to arrive at what they deem to be the “best” decision. Legal realism enjoined us to recognise this so that the charade can end and everyone – judges, litigants, society – can find the “best” outcome together without pretending to work with black letter law.
When American legal realism met neo-Marxism and postmodernism, however, Critical Legal Studies (CLS) and its sibling Critical Race Theory (CRT) were born, with their core idea being that law has no value of its own but only instrumental value, and the ones wielding the instrument decide what it is to be used for, rather than the instrument defining its own nature and goals.
For CLS, “liberals” have been the ones wielding the instrument of law, and they produced “liberal” outcomes regardless of the text of legal provisions. Because of this radical indeterminacy of legal rules and even rights themselves, any outcome would be equally legitimate, and it is incumbent on progressive lawyers to push for “socially just” outcomes that do not simply reflect the inequities of liberal capitalism.
For CRT, “whiteness” has been instrumentalising the law to only produce outcomes that favoured the edifice of whiteness. This included the supposed “victories” for blacks during the Civil Rights era, because this was nothing more than whiteness pretending to concede power while doing nothing more than a mere paper exercise in formality.
So even if the text of the South African Constitution says, for example, “South Africa is founded upon non-racialism”, it is ultimately up to Parliament and judges and policymakers what to do with that text. They can comply with it, ignore it, or redefine it – and they have.
Social ends and objectives are determinative, not abstract and ostensibly objective legal principles and rules. A choice needs to be made by the judge.
Yes, you might have a right to private property in the constitutional text, but the judge is at full liberty to decide (and will decide) how that plays out in practice. It could mean your rights are vindicated, or that the squatter who has trespassed onto your property has their “property rights” recognised and they are vindicated against you. This is simply a subjective choice to be made, and CLS and CRT – and thus Transformationism – enjoins the judge to make their choice in favour of the supposed disadvantaged, regardless of what the legal text, principle, or tradition appears to dictate.
“It’s all just corruption, man!”
It is important for South Africans to understand what the people who (mis)rule us use as their (often unstated) premises and guiding terms of reference.
These articles on understanding Transformationism view things from a primarily legal perspective, but would go well with Dr Anthea Jeffery’s Countdown to Socialism: The National Democratic Revolution.
And it is in this respect that one final note is important.
Some might take issue with the characterisation of Transformationism – or indeed anything at all – as South Africa’s state or legal ideology. It has become fashionable for many to argue that the African National Congress and its servants in the state are simply there to enrich themselves and their networks.
This might well be true.
Indeed, those who believe that Transformationism is misguided are in an extremely fortunate position in 2026 South Africa.
Decades of corruption and ineptitude by the political elite has ensured that the totalitarian picture of Transformationism I have sketched is largely theoretical.
Transformaniacs would love to reconstruct society entirely – roots and all – and they are doing a lot of damage in the attempt. But their own criminality and incompetence, combined with the commendable resilience and strength of South African civil and commercial society, ensures that this totalitarian ambition is not realised.
However, the pretexts, façades, and rationalisations under which the political elite today engage in their work are not irrelevant. Though the primary motivation for many of them might be self-enrichment and patronage, when they do on occasion engage in the business of state – the drawing up of regulations, the signing of international treaties, etc. – they necessarily fall back on the framework of Transformationism.
In other words, if we had the same corrupt cadres and comrades governing us, but their background ideology was one of laissez faire free market capitalism, South Africa would be in a very different position today. The comrades might still be looting the public fiscus dry, but ordinary businesses would be able to employ and invest, and ordinary people would be able to save and consume as they prefer.
Ideology matters, even when it is not foremost in the minds of those who implement its prescripts.
As you join me on this journey of understanding Transformationism, you will notice many features of this particular ideology that have not remained in the world of theory but are felt in your wallets and the futures of your children.
[Image: Ellen Qin on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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