For most of those who agree that the past lives on in post-1994 South Africa, there is a clear and obvious reason: the compromise of 1994 and the constitution it produced.

In this view, the hope of a fundamentally different society was betrayed by a deal between elites in which the ANC leadership, presumably in haste to participate in national government, made compromises which entrenched minority privilege. The result is said to be a constitution which blocks change. In 2011, a then government deputy minister, Ngoako Ramatlhodi, summed up this position, arguing that in the negotiations which produced the constitution, the ANC made ‘fatal concessions’ which ensured ‘a constitution that reflects the great compromise … tilted heavily in favour of forces against change’. An academic critic of the constitution noted that Ramatlhodi's comments, which seemed to argue that a majority government should be able to do as it pleased, aimed to bolster the power of the government at the expense of the people, but endorsed his view that the constitution entrenches the inequities of the past.

The argument presented here rejects this view. As argued in Chapter 4, the roots of path dependence lie not in the state but in the society. It follows that the state is not an obstacle to change and that the constitution, the state's founding law, is not a barrier either. This chapter presents a detailed response to claims that South Africa is locked in the past by the constitution, and that path dependence is a product of compromises made at the negotiating table by opponents of minority rule.

Those who blame the constitution for freezing the past are reacting to a ‘triumphalism’ 3 or a ‘fetishistic overinvestment and overreliance on constitutions’ which assigns to the document almost magical properties. Thus, the legal scholar Karl Klare argues in a much-quoted article that the constitution itself is a vehicle for ‘transformative constitutionalism’. Much of his article expressed worry that the reigning legal culture might not be up to the task of realising the constitution's potential. But he did see the document as a route to a new society if lawyers and judges rose to the challenge: ‘The South African Constitution, in sharp contrast to the classical liberal documents, is social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural, and self-conscious about its historical setting and transformative role and mission.’