Revisiting the constitutionalisation of the common law of personality: transformative constitutionalism and Le Roux v Dey

Abstract In this article, I broadly consider the constitutionalisation of the common law of personality from the perspective of the South African transformative constitutionalism paradigm. This interrogation is the result of the Constitutional Court’s judgment in Le Roux v Dey, which provides an ostensible alignment between the common law and the Constitution of the Republic of South Africa, 1996 in respect of the human personality. In this regard, I critique this judgment and show how it creates doctrinal, ideological, substantive and methodological barriers when one considers the common law’s actual constitutionalisation. These critiques follow from my argument that the constitutionalisation of the common law of personality ought to take place in terms of its doctrine, its underpinning ideology and resultant substance and method with reference to the overarching transformative paradigm. I argue that the constitutionalisation of the common law of personality should be revisited in terms of these considerations. At the end of this article, I attempt to demonstrate how these doctrinal, ideological and structural considerations ought to be addressed in mapping the way forward for the actual constitutionalisation of the common law of personality.