Overcoming Adaptive Challenges to Alter-Native Constitutionalism

The manageability of the technical obstacles set out in Chapter 4 established, this chapter turns to the adaptive challenges amalgamation faces – most notably its inconceivability to the judiciary. The chapter details the maladaptive constraints that underlie the constitutional drafters’ and legal establishment’s resistance to embracing vernacular law as part of South Africa’s ‘law of general application’ or ‘common law’, as well as the urgency of overcoming such resistance. Depicting the severe decline in institutional trust and rising support for undemocratic governance amidst the public’s waning hopes of material security, the chapter argues that, to strengthen South Africa’s rule of law, constitutionalism must be founded on the vernacular legal traditions that resonate with everyday South Africans, who often feel alienated by a legal system rooted in ‘ un common’ law. Alter-Native Constitutionalism offers a sustainable path to transformation that would counteract public disillusionment with a constitutionalism that embraces rigid colonial precedents and simultaneously restore trust in the judiciary as the last line of defence. The chapter therefore argues for judicial praxis that re-envisions courts as mediators supporting collective agency, rather than mere adjudicators, thus fostering a relational approach aligning with Ubu-Ntu and honoring the country’s diverse normative traditions and social justice aspirations.