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The Global Implications of South Africa’s Transformative Constitutionalism on Private Law Systems

By William Manga Mokofe

Law and World · Vol. 11, No. 35, pp. 12-25 · 2025

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Abstract

This paper examines the global impact of South Africa’s model of transformative constitutionalism on private law systems. It explores how the South African Constitution’s mandate for systemic social change has reshaped the structure, function, and underlying assumptions of private law, both domestically and transnationally. Using a critical-comparative approach, the study analyses South African case law alongside developments in Germany, Colombia, and Canada. The central argument is that South Africa’s experience challenges the classical liberal view of private law as autonomous from public law values, revealing a constitutionalised private sphere in which rights, duties, and remedies are interpreted through the lens of substantive justice. The paper also cautions against naïve universalism: the transplantation of transformative constitutionalism is neither linear nor frictionless, as it interacts with diverse legal cultures, political economies, and institutional capacities. South Africa’s experience thus serves both as a template and a provocation—encouraging private law systems worldwide to rethink their normative commitments, while highlighting the complexities and contestations inherent in juridical transformation.

Details

Publication type
Journal article
Author
  • William Manga Mokofe - Doctor of Laws, admitted advocate of the High Court of South Africa, researcher, Walter Sisulu University, Mthatha, South Africa
Journal
Law and World
Publication
September 30, 2025
Volume
11
Issue
35
Pages
12-25
Language
English
DOI
10.36475/11.3.2
ISSN
2346-7916
Institutions
Walter Sisulu University
Access
Open access
Licence
CC BY-SA 4.0
Added to catalogue
Metadata source
Supplied by the publisher

Areas of law

Constitutional Law

Keywords

transformative constitutionalism private law South Africa constitutionalisation comparative law substantive justice

Cite this record

Mokofe, W. M. (2025). The Global Implications of South Africa’s Transformative Constitutionalism on Private Law Systems. Law and World, 11(35), 12-25. https://doi.org/10.36475/11.3.2
Mokofe, William Manga. "The Global Implications of South Africa’s Transformative Constitutionalism on Private Law Systems." Law and World 11, no. 35 (2025): 12-25. https://doi.org/10.36475/11.3.2.
@article{mokofe2025_gkfxe2,
  title     = {The Global Implications of South Africa’s Transformative Constitutionalism on Private Law Systems},
  author    = {Mokofe, William Manga},
  year      = {2025},
  journal   = {Law and World},
  volume    = {11},
  number    = {35},
  pages     = {12--25},
  doi       = {10.36475/11.3.2},
  issn      = {2346-7916},
  language  = {en},
  url       = {https://lawandworld.ge/index.php/law/article/view/840},
  note      = {Open access}
}
Download BibTeX 
TY  - JOUR
AU  - Mokofe, William Manga
TI  - The Global Implications of South Africa’s Transformative Constitutionalism on Private Law Systems
PY  - 2025
JO  - Law and World
VL  - 11
IS  - 35
SN  - 2346-7916
DO  - 10.36475/11.3.2
LA  - en
UR  - https://lawandworld.ge/index.php/law/article/view/840
AB  - This paper examines the global impact of South Africa’s model of transformative constitutionalism on private law systems. It explores how the South African Constitution’s mandate for systemic social change has reshaped the structure, function, and underlying assumptions of private law, both domestically and transnationally. Using a critical-comparative approach, the study analyses South African case law alongside developments in Germany, Colombia, and Canada. The central argument is that South Africa’s experience challenges the classical liberal view of private law as autonomous from public law values, revealing a constitutionalised private sphere in which rights, duties, and remedies are interpreted through the lens of substantive justice. The paper also cautions against naïve universalism: the transplantation of transformative constitutionalism is neither linear nor frictionless, as it interacts with diverse legal cultures, political economies, and institutional capacities. South Africa’s experience thus serves both as a template and a provocation—encouraging private law systems worldwide to rethink their normative commitments, while highlighting the complexities and contestations inherent in juridical transformation.
KW  - transformative constitutionalism
KW  - private law
KW  - South Africa
KW  - constitutionalisation
KW  - comparative law
KW  - substantive justice
KW  - ტრანსფორმაციული კონსტიტუციონალიზმი
KW  - კერძო სამართალი
KW  - სამხრეთ აფრიკა
KW  - კონსტიტუციონალიზაცია
KW  - შედარებითი სამართალი
KW  - მატერიალური სამართლიანობა
SP  - 12
EP  - 25
ER  -
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