Decolonial Constitutionalism and Constitutionalized Bifurcation: A Critical Analysis of South Africa's Neo-Apartheid Constitutionalism and Persistence of Colonial Structures

This article critically interrogates the post-apartheid constitutional order in South Africa through the lens of decolonial theory. It argues that while the 1996 Constitution proclaims transformation, equality, and human dignity, it simultaneously reproduces the colonial and apartheid logics it seeks to transcend. Using the concept of neo-apartheid constitutionalism (Madlingozi, 2017), the paper contends that the Constitution sustains bifurcated systems across multiple domains - property, education, health, and justice - entrenching a liberal order that protects privilege under the guise of rights. Drawing on the works of Quijano, Mignolo, Ramose, and NdlovuGatsheni, the analysis situates South Africa's constitutionalism within the global matrix of coloniality, showing how epistemic dependence and economic inequality persist through law. The study further explores how the negotiated transition and the African National Congress's accommodationist constitutionalism displaced the decolonial alternative envisioned by the Pan Africanist Congress, resulting in a reconciliation-oriented Constitution that privileges stability over justice. Through critical examination of constitutional provisions and jurisprudence - including Soobramoney v Minister of Health (KwaZulu-Natal), Government of the Republic of South Africa v Grootboom, and Daniels v Scribante and Another - the paper demonstrates how socio-economic rights are judicially constrained by liberal doctrines of reasonableness and progressive realization. Ultimately, the article calls for an authentic decolonial constitutionalism founded on ubuntu, indigenous jurisprudence, communal landholding, and restorative justice. It argues that the unfinished project of liberation requires not constitutional reform but constitutional re-foundation: a radical delinking from colonial epistemologies and the creation of a pluralist, relational, and reparative legal order grounded in African philosophy.