Leiden Journal of International Law, 20 (2007), pp. 965–981 C  Foundation of the Leiden Journal of International Law Printed in the United Kingdom doi:10.1017/S0922156507004578 Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa’s Transformation JACKIE DUGARD ∗ Abstract In this article I draw on John Dugard’s criticism of apartheid judges to initiate a discussion of the role and functioning of judges in the post-apartheid era. Using John’s critique of the limits of judicial interpretation in an illegitimate order, I extend the analysis to review the record of the Constitutional Court in adjudicating socioeconomic rights cases post-1994. In doing so I propose a radical interpretation of the Court’s role in society and an activist functioning of judges in South Africa’s constitutional democracy. I conclude that, notwithstanding the momentous changes in the South African legal order since 1994, John’s critique of the judiciary retains much value and applicability today. Key words constitutional democracy; judicial activism; role and functioning of courts; separation of powers; socioeconomic rights; South Africa 1. I NTRODUCTION [O]ne truth needs to be vigorously recognised: the contribution of John Dugard and the small coterie of young and vigorous academics whom he attracted, in chiselling away at the very foundations of orthodox jurisprudential perspectives in South Africa and in restructuring the moral and jurisprudential values of generations of lawyers who began to permeate the practice and teaching of the law, has been among the most crucial, the most profound and the most decisive even if not the most visible of the influences which have impacted and which will continue to impact on the structure of our legal universe. 1 In the acknowledgements of his seminal critique of the apartheid legal order in 1978, John Dugard wrote, ‘[My] children, Jacqueline and Justin, are too young to appreciate the subject-matter of the book, but it is written in the interests of a better society for them.’ 2 As one of his children, in 2007 I write in a profoundly better society in which civil and political freedoms are extended to everyone and in which I can live with my partner, Itumeleng, without fear of being prosecuted for contravening ∗ Senior Researcher, Centre for Applied Legal Studies (CALS), University of the Witwatersrand. 1. Excerpt from a speech given by the former South African Chief Justice, Ishmael Mahomed, at a farewell function for John held at the University of the Witwatersrand in 1998, cited in A. Du Plessis, ‘John Dugard’s Magisterial Accomplishments Rewarded with a Raw Deal’, (2006) 6 (10) Without Prejudice: The Law Magazine 30, at 31. 2. J. Dugard, Human Rights and the South African Legal Order (1978), xvi.