Abstract

Namibia, like many other African countries after independence, embarked on a journey to establish democracy as well as constitutionalism. The purpose of establishing constitutionalism was to limit state functions in relation to its subjects through judicial control – namely judicial activism. Namibian courts have been called from time to time to interpret a variety of legal provisions (such as statutes) in line with the percepts of the Constitution. During this interpretation process, some laws are validated and some not. It is against this background that the article discusses the question of judicial deference vis-a-vis judicial responsibility in a constitutional democracy taking into account that Namibia is founded on the principle of constitutionalism.

Introduction

The Namibian Constitution is based on dignity and equality of rights – which rights must be protected by government operating under a sovereign Constitution and a free and independent judiciary. The adoption of the Constitution of Namibia obliges the state to act solely on constitutional principles – through observance of constitutionalism, as state authority emanates from the Constitution. The Namibian Constitution as the supreme law does not only
require the state ‘to observe the law generally, but to comply meticulously with every constitutional and legal duty imposed on it’.

Since the purpose of the Constitution is to prevent ‘tyranny and anarchy’ , state compliance to constitutional principles can only be achieved if there is judicial independence which allows courts to determine the legality of state actions – that is whether the state is operating within the constitutional parameters. Judicial independence is no doubt a prominent feature of any constitutional democracy,
including Namibia. This independence of the judiciary has been constitutionalised under article 78 of the Constitution. The purpose of judicial independence is to ensure independence and impartiality to the functioning of the judiciary as a noble institution established by the Constitution. It is only through the judiciary that the state can properly account for its actions.

The Values of Constitutionalism

A Constitution informs the values that are so dear to a particular country – Namibia being no exception. A variety of scholars have attempted to make a distinction between what a Constitution is and the concept of constitutionalism. According to Fombad, a Constitution is ‘a collection of rules, whether written in a formal document or not, that limits both government and the governed with respect to what may or may not be done’. Constitutions aims to ensure that the state is ‘neither too weak nor despotic’ in the exercise of its public power. Although a Constitution can be said to be a document aimed at limiting government arbitrariness, constitutionalism is much broader and goes beyond the mere limiting of government power.

On the other hand, constitutionalism can be said to:
Encompass the idea that a government should not only be sufficiently limited in a way that protects its citizens from arbitrary rule but also that such a government should be able to operate efficiently and in a way that it can be effectively compelled to operate within its constitutional limitations.

In order for a state to be said to practice constitutionalism, such state must be held to account for its actions and there should be presence of mechanism to enforce the limitation imposed on the state. 10 The principle of constitutionalism according to Fombad 1entails that the Constitution should provide for recognition and protection of fundamental rights and freedoms 12 ; the separation of powers ; an independent judiciary ; the review of constitutionality of laws; the control of the amendment of the Constitution 16 and the
presence of institutions that support democracy. This, Namibia complies with, as these core elements of constitutionalism have been incorporated in the Constitution.

The value of constitutionalism in a democratic state is necessary in ensuring that state power is restricted. Democracy cannot flourish where there is no freedom due to unlimited state power. One asserts to the views expressed by Malherbe and Van Eck that:

It is essential in a democracy that the state shall comply with the provisions of the constitution and the law. The main objective of the constitution is to structure the state and the way in which the governing function is performed. The constitution regulates not only the authority of the state; it also controls the exercise of that authority. It is the primary mechanism to prevent the state from abusing its authority. State compliance with the constitution goes a step further, as the constitution also ensures that the state remains true to the democratic principles enshrined in the constitution. Should the state act outside the boundaries of the constitution,
the state runs the risk of eroding the principles of democracy on which the constitution is founded. To ensure the sustainability of democracy in South Africa, it is imperative that the state acts in accordance with the constitution and in doing so, upholds democracy itself.

The above can only be achieved through control mechanisms of checks and balances to ensure that state complies to its constitutional obligations in terms of the social contract
entered with its subjects. In order to ensure compliance with constitutionalism, the courts are required to reconcile a number of factors in order to give full effect to the rights contained in
the Constitution. Dennis Davis argue that:

The interpretation of a constitutional provision and the further act of application to a set of facts is the outcome of argument, of competing or differing political projects or visions, of the
influence and impact of contending ideological argument.

In interpreting any provision of law, it must be able to pass the constitutional test of promoting the ideals of the Namibian people. In S v Acheson, the Court emphasised the fact that:

The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed. It is a ‘mirror
reflecting the national soul’, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must therefore preside over and permeate the process of judicial interpretation and judicial discretion.

In Government of the Republic of Namibia v Cultura 2000 & Another the court placed the same emphasis as in the Acheson case and went further by stating that:

A Constitution is an organic instrument. Although it is enacted in the form of a statute, it is sui generis. It must be broadly, liberally and purposively interpreted so as to avoid the `austerity of tabulated legalism’ and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people and in disciplining its Government.

Clearly therefore, the power of the state can only be hedged through by the judiciary who should interpret the Constitution to the fullest to ensure maximum enjoyment of fundamental human rights and freedoms. Thus, the interpretation process should be procedurally and substantively fair to all the parties involved. This can only be achieved through transformative constitutionalism where the judiciary should be ready to ensure that the letter of the law is observed by taking into account a variety of factors.

Judicial Independence in Namibia

As alluded to in the introduction, the independence of the judiciary in Namibia has been enhanced by article 78 of the Constitution. Article 78(2) confirms the notion that ‘the courts
shall be independent and subject only to this Constitution and the law’. Furthermore, the Constitution articulates that:

No member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.

An independent judiciary has been defined as:

One that is free to render justice on all issues of substantial legal and constitutional importance, fairly, impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other undue influence or consideration.

A more elaborative description of judicial independence by Blazier is that;

… In general the public must feel confident in the integrity and impartiality of the judiciary: judges must therefore be secure from undue influence and be autonomous in their own field. That possibly implies that neither the government nor Parliament should have any role in the appointment or removal of judges, which has never been the case in this country. More precisely, judicial independence may be said to require:

(a) that appointments to judicial office, renewal of part-time appointments, and promotions, should not depend on uncontrolled ministerial patronage;

(b) that judges should be free from improper attempts by Ministers, Members of Parliament, or peers to influence the result of cases still under adjudication;

(c) that judicial salaries should not be reduced; and

(d) that judges should not be
removed from office unfairly or without reason.

Adding to the above, judicial independence should have specific characteristics – security of tenure, personal independence and institutional independence. Quoting from the case of The
Queen in Right v Beauregard, Mhodi stipulates that the core principles central to the independence of the judiciary was:

The complete liberty of individual judges to hear and determine cases before them independent of, and free from, external influences or influence of government, pressure groups, individuals or even other judges.

This therefore means that judicial power is exercised by the judiciary and may not be exercised by the legislature, the executive or any other institutions and that the judiciary should exercise its power subject only to the Constitution and the law and not as a result of
public opinion or the majority of parliament members.

Judicial independence as a prominent feature of the Namibian Constitution has been re-enforced by the supremacy clause under article 1(6). Constitutional supremacy pre-supposes that any law that is inconsistent with what is provided for by the Constitution can be declared to be unconstitutional and of no force or legal effect. This raises an old dilemma of counter- majoritarian difficult – in that, members of the judiciary who are unelected through a
democratic process tend to possess more power compared to the other two arms of government (that is the executive and the legislature). This excessive power granted by the judiciary can be seen to create tension with other branches of government.

Considering the above, sight should not be lost that Namibia is still transforming its judiciary in a new constitutional dispensation. One of the challenges faced by the courts in the interpretation process is ensuring adherence to the Constitution while at the same time
exercise deference related to policy matters. The question that arises is to what extent should the courts exercise deference or overrule the powers granted to the executive and the legislature in upholding its constitutional mandate.

Judicial Deference and Separation of Powers

The principle of judicial deference has been defined as ‘the principle that the courts (out of respect for the legislature or executive) will decline to make their own independent judgment on a particular issue’. It is inevitable that the judiciary will in certain situations defer
judgments to other branches of government where necessary in order to allow ‘margin of appreciation to political and decision makers’. The question that arises is when should the
judiciary defer and if so to what extent?

According to Lenta:

The idea of deference arises out of observation that the separation of powers requires that the judiciary refrain from intruding unnecessarily into the realm of other branches of government.
It is not the task of the judiciary to usurp the function of the legislature or the executive by pronouncing on the wisdom of policy choices. The notion of deference is linked to the distinction between policy and principle. Deference requires that judicial review be carried out with sensitivity to the legitimate field of choice open to the elected branches in deciding questions of public policy. Deference recognises the role of the elected branches and the
political process in general in determining the common good. Such choices involve complex political judgments and should be made on the basis of technical expertise that the political branches possess to a greater degree than the judiciary.

The justification of judicial restraint (through judicial deference) rests mainly on two pillars. Firstly, it is argued that the judiciary lacks the necessary legitimacy as the judges are not elected through a democratic process as compared to members of the legislature; secondly, that the judiciary ‘lacks institutional capacity or competency of other branches of government’. The justification of the first pillar seems to rest on democratic principle that in democracy, majority should rule. However, the second pillar seems to be premised on the fact that the legislature and or the executive are in constant contact with the majority (the subjects) and this places them in a better position to evaluate and assess issues compared to
the judiciary.

However, the judiciary has a primary duty to ensure the protection of fundamental rights and it is argued that it would be a wrong conclusion to ‘stigmatise judicial decision-making as in some way undemocratic’.

Lord Hope in R v DPP exp. Kebilene state that:

Difficult choices may need to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision n is said to be incompatible with the Convention . . . It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to
be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are
especially well placed to assess the need for protection.

All three branches of government have specific functions – the legislature is to make laws, the executive is formulate policies and ensure their implementation while the judiciary should interpret and apply the law. 42 These organs, although separate, their relationship is founded on the principle of checks and balances. 43 This principle of checks and balances ensures that none of the branches of the three branches should enjoy more power over the other organs
and its ultimate purpose is to guarantee individual freedom.

The question of deference to a certain extent seems to be premised on the concept of separation of powers principle (trias politica). Unlimited power to government could be subject to abuse, hence in constitutional democracies, the principle of separation of powers
ensures checks and balances to be in place by allowing the judiciary to review the actions of the state. 45 The separation of powers principle was designed to ensure that courts acts as a bridge between the people and the legislature and to ensure that the legislature is within its boundaries as assigned by law.

Once power is concentrated too much in one body it is likely to be abused as ‘all power tends to corrupt, and absolute power corrupts absolutely’ 47 and this is the reason for the existence of checks and balances.

It has been argued that:

The diffusion of law-making power reduces the power of ideologically organized majorities, whether liberal or conservative, to bring about significant change in any subject-matter area
heavily governed by law. It empowers the legal fractions of intelligentsias to decide the outcomes of ideological conflict among themselves, outside the legislative processes. And it increases the appearance of naturalness, necessity, and relative justice of the status quo, whatever it may be, over what would prevail under a more transparent regime.

Our courts in interpreting the Constitutions, are faced with constraints as outlined by Kentridge, AJ in the Zuma case where it was indicated that:

While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to
avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.

Although the courts are granted power in terms of the Constitution, the separation of powers principles requires the courts to interpret the law in light of the historical and current context in order to hold government accountable. However in De Lange v Smuts NO and Others 51 the court cautioned that despite the existence of separation of powers and checks and balances, the courts should ‘avoid diffusing power so completely that the government is unable to take timely measures in the public interest’. This therefore implies that certain situations would require the courts to exercise deference.

In deciding whether the court should exercise deference, the court should look at:

The extent to which the primary decision-maker has conscientiously conducted a thorough compatibility inquiry is a relevant consideration for the court. Although this factor cannot be made determinative in a way that reduces scrutiny to a merely procedural safeguard, the degree of respect which is due to a measure should be influenced by the seriousness of the engagement with the proportionality question by the primary decision-maker, and the opportunities which have been afforded to the various interests in the process leading to the decision.

McLaughlin J in RJR – McDonald Inc v Canada (AG) cautioned that:

Care must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to
determine, objectively and impartially, whether Parliament’s choice falls within the limiting framework of the Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting.
Parliament’s view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.

Each and every case should be judged on its own merits in deciding whether judicial deference should be taken or not. However, this is a difficult decision as was stated by Lord Bingham in A and others v Secretary of State for the Home Department that:

The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our
constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.

Instances in which the courts will be required to exercise deference will be where certain disputes falls squarely within the mandate of an established institution by the Constitution or relevant statute or those disputes going beyond the scope of adjudication. In Mazibuko v Sisulu 56 the court outlined that it is not the duty of the judiciary to indicate how the legislature should conduct its affairs in that:

When it comes to matters falling within the heartland of Parliament, our Constitution contemplates a restrained approach to intervention in those matters by the court. Such intervention is permissible if it is undertaken to uphold the Constitution because our courts are the ultimate guardians of the Constitution. But where a competent authority has already taken steps to correct conduct inconsistent with the Constitution, it may not be necessary for the guardians to take action, particularly where action to be taken is limited to declaring a legal position accepted by all parties concerned. The position might have been different if, assuming that there is inconsistency, the defect were to be cured by the court itself rather than referring it back to the Assembly to continue with the process which was already at an advanced stage…nor will the Court formulate rules for the Assembly but rather leave the matter to the Assembly to remedy the constitutional defect.

In Van Rooyen v State the court outlined the principle of separation of powers as follows:

In a constitutional democracy such as ours, in which the Constitution is the supreme law of the Republic, substantial power has been given to the judiciary to uphold the Constitution. In exercising such powers, obedience to the doctrine of the separation powers requires that the judiciary, in its comments about other arms are obliged to show respect and courtesy, in the same way that these other arms are obliged to show respect for and courtesy to the judiciary
and one another.

One agrees to the views expressed by David Pannick that the judiciary in considering deference of an issue to the legislature or the executive, should consider the following factors: ‘the nature of the right, the extent to which the issue involves consideration of social, economic or political factors; the extent to which the courts have a particular expertise, e.g. in criminal matters; whether the rights claimed have a high degree of constitutional protection,
e.g. political speech, access to the court or intimate aspects of private life’. Quite importantly, the courts in deciding whether to defer or not should consider that in terms of the new constitutional order culture of authority under parliamentary sovereignty has been replaced with culture of justification based on constitutional supremacy. Deference can thus only be undertaken if the limitation analysis under article 22 of the Constitution are met.

Deference and Judicial Review

Deference is generally undertaken to ensure that the constitutional roles of each of the organs of the state is not being undermined. 62 This requires that organs of state should act rationally (through culture of justification by government to the subjects) and lawful and an act that is done arbitrary and against the constitutional values can be set aside. 63 It is only through judicial review that the concept of fairness and justice can be realised – as it avoids repetition of similar conducts by government.

The existence of constitutions without constitutionalism meant that there was no proper mechanisms of legal control to ensure observance of constitutionalism. The Constitution provides remedies for breach of upholding the fundamental rights and freedoms contained thereto. This entails that all rights contained in the Constitution are justiciable and subject to judicial review. In a constitutional state, there should be effective remedies available to
aggrieved persons. In the absence of controlling and compelling compliance with what is provided for in the Constitution, it has been argued that ‘the Constitution is not worth the paper on which it is written and is probably as good as being non-existent’.

During the judicial review process ‘the court is usually concerned with whether the decision- maker reached his decision in the right way rather than whether he got what the court might think to be the right answer’. Thus, during the review process, the court needs to make an assessment whether the decision taken (whether by an administrative organ) should be assessed on reasonableness in reaching a decision (by looking at procedure and substance – based on common sense and reasonableness). It is only through this process that constitutional rights of subjects can be respected and accommodated.

If deference is therefore taken in situations where the rights of an individual has been violated, the purpose of judicial review is undermined. Judicial review is one of the mechanisms of ensuring that courts who are independent must be able to enforce the
provisions of the Constitution as well as ensuring no abuse of any of the constitutional provisions. This is so because reviewing actions of the administration is premised on ‘constitutional values’ as found in the Constitution.

Deference Undermines the Development of Constitutional Law

The values of constitutionalism can only be achieved through constant interpretation of the provisions of the Constitution in order to meet the ever-changing values of a nation. It is through this interpretative process that one can understand the constitutional dimensions and ultimately bring some form of reform. This is so because the text of the Constitution does not solve every constitutional questions – but requires judges to have discretion in interpreting the Constitution taking into account normative values.

In Vriend v Alberta the court expressed the view that:

Because the courts are independent from the executive and legislature, litigants and citizens generally can rely on the courts to make reasoned and principled decisions according to the dictates of the constitution even though specific decisions may not be universally acclaimed. In carrying out their duties, courts are not to second-guess legislatures and the executives; they are not to make value judgments on what they regard as the proper policy choice; this is for the other branches. Rather, the courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution itself. But respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each other’s’ role and the role of the courts.

Although the legislature is mandated to enact laws, such laws should conform to the standard set in the Constitution. In a Canadian decision of Baker v Canada (Minister of Citizenship and Immigration) 70 the court stated that despite power given to the legislature to make laws, the courts should for the sake of fairness and justice determine whether the legislature acted within the legal framework of the Constitution. It is argued that when the judiciary exercises
a big margin of appreciation (that is deference), it must not exercise an ‘excessive latitude’ as this goes against their constitutional role in ensuring that rights contained in the Constitution are protected.

Transformative Constitutionalism Through Judicial Activism

In order to fully realise the rights contained in the Constitution, independence of the judiciary is not a guarantee for the enforcement of these rights if judges fail in their judicial
responsibilities. The judiciary has been criticised in upholding constitutionalism in post- independence Africa – in that they have failed in certain instances to maintain their independence by being used as tools by the executive.

Odinkaly asserts that:

[T]he judiciaries in Common Law African countries must take substantial responsibility for the collapse of constitutional government …. the judiciary in many of these countries
deliberately and knowingly abdicated its constitutional role to protect human rights and, in many cases, actively connived in the subversion of constitutional rule and constitutional rights by the executive arm of government.

Since the judiciary has transformed in its judicial approach due to supremacy of the Constitution, constitutionalism can only be strengthened further when there is an active judiciary – that is, the presence of liberal judges who value the spirit and tenor of the
Constitution. The judiciary is seen as an instrument of change and must play an assertive role as compared in the past when there was no proper recognition of constitutionalism. This can only be achieved when judges have the power to make judgments against the executive and see themselves as the guarantors of fundamental rights and freedoms enshrined in the Constitution.

The duty of protecting human rights by the judiciary can only be achieved through judicial activism – judges should adopt new approaches to adjudication in line with the values of the Constitution. Values informs the interpretation of law and the Constitution. It is contended that:

Constitutional rights revolution can only be realized with a judiciary that is ready to use its powers to negate the continuous authoritarian impulses of elected politicians. This requires a
new judicial attitude towards adjudication in which judges adopt a more principled and rights- sensitive approach that takes account of the radical political, economic, and social changes of our times and the revulsion against dictatorship. In many instances it seems that the revised or new constitutions were not only designed to eliminate dictatorship and promote democracy and good governance but also to promote a new human rights culture that is particularly sensitive to issues such as hunger, poverty, unemployment, ignorance, illiteracy, disease, and other social ills that have inflicted so much hardship on a majority of the population on the continent. Attaining these goals requires a judiciary that is willing to reflect the new spirit of constitutionalism when interpreting these constitutions.

An active role from the judiciary in terms of its adjudication approach is therefore required in order to adequately bridge the gap between the subjects and government. The judges therefore should go beyond their traditional role of merely interpreting the law but rather act as guardians of the Constitution. It is only through the application of fairness and justice in the adjudication process will there be adequate advancement of human rights. Advancement of human rights jurisprudence can only be achieved when there is an active court.

Despite the existence of judicial activism, such activism should not lead to arbitrariness or abuse of discretion vested in courts. It has been argued that:

[J]udicial activism should not result in rewriting of the Constitution or any legislative enactments. Reconciliation of the permanent values embodied in the Constitution with the transitional and changing requirements of the society must not result in undermining the integrity of the Constitution. Any attempt leading to such a consequence would destroy the very structure of the constitutional institutions. Conscious of the primordial fact that the Constitution is the supreme document, the mechanism under which laws must be made and governance of the country carried on, the judiciary must play its activist role. No constitutional value propounded by the judiciary should run counter to any explicitly stated constitutional obligations or rights. In the name of doing justice and taking shelter under institutional self-righteousness, the judiciary cannot act in a manner disturbing the delicate balance between the three wings of the State.

Judicial activism requires that judges should exercise their open legal mind and must actively participate in the transformative agenda of ensuring democratic accountability – in respect of the judges themselves as well as the state. In ensuring democratic accountability, it is argued that:

Judges are required to subject public and private power to the demand for dialogic justification; to participate in transformative debate about the relationship between the individual and the collective. It is their duty to resist normative closure; to renounce attempts to make the current boundary between the individual and the collective appear natural and necessary; to challenge the assumption that ‘people’ have a fixed identity, or that a broad
social consensus is ‘out there’ waiting to be discovered. It is their responsibility to facilitate democratic deliberation; to promote respect for the ‘marginalised other’; to allow a multiplicity of voices to be heard. As participants in a culture of justification, judges are
required to take responsibility for their own actions, to spell out the moral and political values upon which their decision rest.

What is clear from above is that the transformation approach emanates from the Constitution which reflects values of a nation aimed at protecting rights of individuals as well as achieving fundamental justice for all. 85 In a transformative state such as Namibia, the judiciary should embrace an activist approach to constitutionalism whereby the state should realise the constitutional values and be held to account for non-fulfilment of constitutional
obligations.

Conclusion

Despite the presence of separation of powers, the judiciary among the three organs of the state emerges as the custodian of constitutional interpretation. In order to continue playing an
active role – that of ensuring that there is constitutional order in Namibia, the judiciary should exercise activism taking into account the changing values of the Namibian people. Courts should not be influenced by political considerations, but should rather see themselves as the ‘authoritative interpreter’ of the Constitution. This is the only way to enhance the jurisprudence of constitutional law.

The courts in adjudicating disputes is required in each case to determine the facts of the case, the law applicable to the facts and then apply the relevant laws to the facts before coming to
any decision. By doing so, the judiciary is also in some way hold to account for their
actions.

The degree of deference, if any, should be minimal, and if taken, it should be based on reasonable grounds necessary in a democratic society founded on values of human dignity and equality. Deference can only be exercised if not in conflict with the values contained in
the Constitution. The procedure of reviewing rules cannot be adequately achieved through judicial deference. The courts should be able to enforce the values of the parens patriae (the Constitution) and adopt a rights based approach in its interpretation process in order to foster the transformation agenda. As correctly put ‘transformative constitutionalism is an activist philosophy aimed at social and political emancipation through legally-mandated means’ – that is through judicial application and interpretation of the law.