Informal constitutional change: towards a South African theory of unconstitutional constitutional change

The Constitution of the Republic of South Africa, 1996 has changed more times than it has been amended. In this dissertation, I explore the phenomenon of informal constitutional change. In particular: I focus on how courts are able to change the content, scope and meaning of a constitution without its text ever changing. Drawing on work in constitutional theory, I explore whether such change can be legitimate outside of the scope of formal constitutional amendment and develop a framework for its identification. I also explore the constitutional difficulties engendered by this mode of constitutional change insofar as it implies an illegitimate use of judicial authority. I offer a South African case study of this phenomenon and conclude that the Constitution has been changed unconstitutionally at least once.

Grantor dc:publisher.institution

Department of Private Law

Year dc:date.issued

2025

Author dc:creator

• Mafora, Dan

Advisor dc:contributor.advisor

• Boonzaier, Leo

• Constitution
• South Africa

Language dc:language.iso

en

Handle dc:identifier.uri

http://hdl.handle.net/11427/42389

OAI identifier oai:identifier

oai:open.uct.ac.za:11427/42389