Constitutional betrayal or human rights expansion

Protesters march in Joburg over undocumented and illegal migrants. The Constitutional Court recently interpreted everyone in the constitution to include foreign nationals. Picture: Michel Bega South Africa’s constitution is often celebrated as a transformative document – a beacon of human rights and a repudiation of apartheid-era segregation.

Central to its founding principles is the powerful preamble: “South Africa belongs to all who live in it, united in our diversity.” This statement was a bold declaration against the injustices of apartheid, which confined the majority black population to Bantustans and reserved the land for a privileged minority. It was a resolute affirmation that South Africa now belongs to all its people, regardless of race or background. However, recent interpretations by theConstitutional Courthave arguably distorted this historic pronouncement.

The landmarkEndumeni judgment of the Supreme Court of Appeal(2012) emphasised that language used in legal texts should not be read in isolation, but within the broader context – social, historical, and constitutional (teleological) – that gives it meaning. Applying this principle to the constitution’s preamble and language, it becomes evident that the phrase “everyone” was not intended to be an open-ended inclusion of all people globally. Instead, it refers to the South African people – those who have historically been denied dignity and rights under apartheid. The constitution was crafted as a social contract to redress historical wrongs and ensure the dignity of the majority marginalised population is restored and protected.