Chapter Three: The Colonization of the Time – The Constitution and the Afterlife of Con-
quest)
Introduction
This chapter critically examines the South African Constitution as an instrument that perpet-
uates the afterlife of colonial conquest. Through the lens of epistemic violence, it interrogates
how the Constitution sustains colonial hierarchies by subordinating African Customary Law,
erasing African values, and enshrining Eurocentric frameworks as neutral and supreme. Draw-
ing on the works of scholars like Madlingozi, Santos, Biko, and Wilderson, the chapter chal-
lenges the prevailing mythology of the Constitution as a rupture from Apartheid and instead
reveals its continuity with settler-colonial logic. It questions whether genuine decolonisation
is possible under the current constitutional dispensation.
Epistemic Violence and the Eurocentric Foundations of the Constitution
The imposition of the Eurocentric law of the European conqueror on the Indigenous people
is an example of legal epistemic violence.1 This historical trajectory of legal and ontological
violence culminated in the series of settler constitutions, culminating in the 1996 Constitu-
tion. The constitution is the epistemic component for the colonial conqueror of South Africa
to exercise a morally questionable “right of conquest.2” Therefore, the purpose of this chap-
ter is to connect such epistemic violence to the constitution by maintaining that even after
the constitution was passed, the multifaceted injustice of conquest in an unfair war remains
a moral imperative that requires a solution.3
The 1996 Constitution and all other Conqueror constitutions in South Africa are firmly
grounded in the conqueror’s epistemological framework.4 Accordingly, the constitution takes
precedence over “customary law,” which is the law of the people of the land.5 The prevalence
of this paradigm, which is demonstrated by Ubuntu’s complete exclusion from the constitu-
tion, points to ongoing epistemicide that is fuelled by a sense of racial superiority.6 Van
1
Ramose ‘Towards a post-conquest South Africa: beyond the constitution of 1996’ (2018) 338
2
Ramose (n 1) 327
3
Ramose (n 1) 327
4
Ramose (n 1) 338
5
Ramose (n 1) 338
6
Ramose (n 1) 338
Riebeeck’s promise that the Dutch intended to keep the country is more than repeated and
indeed, reaffirmed in the preamble, which was written 309 years later.7 The preamble asserts
the divine gift of land.8
As such, Madlingozi argues that the current constitution is insufficient to achieve decoloniza-
tion.9 Rather, the current constitution must be replaced with a "post-conquest constitution"
through a thorough constitutional-making process.10 The continued subordination of African
life-worlds, as well as their jurisprudential and epistemological traditions, would be ad-
dressed by such a constitution.11 South Africa is still a historically settler-colonial society, as
evidenced by the main lasting effects of colonialism, such as the creation of an apart-
heid world and the deliberate failure to resolve the national question; the colonial state form
and, on the other hand, the ongoing subordination of indigenous sovereignties; and the con-
tinued subordination of African lifeways, their epistemologies, and systems of ordering (mis-
named "customary law").12
The process of uneven conquest began in 1652. In 1657, the Dutch government authorized a
policy of permanent settlement and land confiscation.13 Land loss, the rise of Western mo-
dernity, and most importantly, the disruption of the sacred balance between the land, non-
human lifeforms, and the onto-triadic community, which is composed of the living, the dead,
and the unborn, were all consequences of the wars of dispossession that settler-invaders be-
gan between 1779 and 1878.14 Therefore, the primary effects of this century-long period of
settler aggression went beyond simply taking land; they included the dissolution of African
being-becoming and the destruction of indigenous peoples’ social and cultural worlds.15 In
1879, the last sovereign African kingdom was overthrown by conquerors. 16 The union of
South Africa was established as a “white man’s polity” by the constitution of 1910, solidifying
7
Ramose (n 1) 338
8
Ramose (n 1) 338
99
Tshepo Madlingozi “The Proposed Amendment to the South African: Finishing the Unfinished Business Of
Decolonisation?” 6 April 2018 [Link]
south-african-constitution/ (accessed 11 July 2025).
10
Madlingozi (n 9)
11
Madlingozi (n 9)
12
Madlingozi (n 9)
13
Madlingozi (n 9)
14
Madlingozi (n 9)
15
Madlingozi (n 9)
16
Madlingozi (n 9)
the indigenous people’s lack of belonging.17 The 1948 implementation of apart-
heid was only a new kind of colonialism, a new chapter in the history of intra-settler rivalry,
and an attempt to find a lasting solution to the "Native problem.18" In 1913, the colonial gov-
ernment enacted the Native Land Act.19 “Natives, in terms of this Act were permitted to buy
land in scheduled Areas.20 These areas, which were primarily “communal areas” or “black
reserves,” made up 13% of South Africa’s total land area.21
The Republic of South Africa was established as an independent settler colony with the right
to rule over “the natives” under the 1961 constitution.22 From the perspective of the con-
quered people, the formation and subsequent changes of the South African state were thus
the concretization of conquest.23 Madlingozi thus maintains that the 1961 constitution did
not usher in the decolonization era.24 Instead, the 1961 constitution should be viewed as a
component of “evolutionary constitutionalism,” a strategy for preserving the settlement.25 By
doing this, they aimed to gain the “ consent of the conquered people by influencing their
culture, values, and beliefs rather than using force.26
By permitting a few privileged members of the colonized group to join the system, these con-
stitutional changes aim to maintain the colonizers’ hold on power while making it appear eq-
uitable or inclusive.27 These kinds of constitution-making processes are counterproductive to
decolonization because they obscure indigenous systems and ways of life rather than recog-
nizing and restoring them.28 While the apartheid state appeared to come to an end in 1994,
the negotiated transition masked a deeper continuity: the maintenance of the colonial legal
order through symbolic inclusion.
The Sacred Status of the Constitution and the Myth of Rupture
17
Madlingozi (n 9)
18
Madlingozi (n 9)
19
Madlingozi (n 9)
20
Madlingozi (n 9)
21
Madlingozi (n 9)
22
Madlingozi (n 9)
23
Madlingozi (n 9)
24
Madlingozi (n 9)
25
Madlingozi (n 9)
26
Madlingozi (n 9)
27
Madlingozi (n 9)
28
Madlingozi (n 9)
As it is widely known, the shift to democracy was accomplished through a negotiated settle-
ment. The sociopolitical climate of South Africa underwent drastic changes following the 1994
elections, which ushered in a new constitutional regime.29 1994, therefore, could be regarded
as signifying the conclusion of revolutionary approaches to constitution-making, which Afri-
can nationalists and Black Consciousness activists largely drove.30 It is said that the constitu-
tion represents the pinnacle of the struggle against colonial Apartheid. Its supporters fre-
quently exalt it to almost sacred status, calling it” the best in the world” either overtly or
covertly.31 Their so-called radical interpretation of section 25 is shaped by this almost religious
reverence.32 This point of view holds that section 25 is unquestionably accurate.33 These an-
alysts acknowledge that South Africa’s attempts at land reform and restitution have largely
failed, but they attribute this failure to ineffective institutions, government corruption, and
incapacity rather than the constitution itself.34 They believe that the constitution provides an
ideal and indisputable framework for addressing the effects of colonialism and Apartheid.35
This reverence for the Constitution was not spontaneous; it was developed from the time it
was adopted.36 The birth of the constitution was framed in symbolic ways as both a rupture
with the past and the founding of a new order.37 From the hegemonic discourse standpoint,
the post-apartheid era began with the ratification of the Republic of South Africa’s 1996 Con-
stitution.38Cyril Ramaphosa, the principal negotiator for the African National Congress (ANC),
said in a speech on the day of the Constitution's signing that it was "the birthday of the South
African rainbow nation."39 Ramaphosa and other constitution writers advocate the no-
tion that the adoption of the Constitution was a moment of rupture, natality, founding,
and closure, despite the fact that constitution-making should be bifocal in that it should be
both forward-looking and backward-looking.40
29
Madlingozi (n 9)
30
Madlingozi (n 9)
31
Madlingozi (n 9)
32
Madlingozi (n 9)
33
Madlingozi (n 9)
34
Madlingozi (n 9)
35
Madlingozi (n 9)
36
Madlingozi (n 9)
37
Madlingozi (n 9)
38
Tshepo Madlingozi “Social Justice in A Time of Neo-Apartheid Constitutionalism: Critiquing the Ant-Black
Economy of Recognition, Incorporation and Distribution 127
39
Madlingozi (n 38) 127
40
Madlingozi (n 38) 127
Post-Conquest critique: what a Decolonising constitution Requires.
From a decolonising perspective, Madlingozi maintains that the constitution as it stands now
does not decolonize.41 A decolonising constitution is both forward and backward looking; it
identifies the past it condemns and tries to depart from it in clear terms.42 It provides a foun-
dation for a post-segregationist future in which all people will feel material and emo-
tional belonging.43 The first indication that the drafters of the South African constitution did
not imply that they had a decolonizing agenda is that the word Apartheid, not to mention co-
lonialism, is not in the entire constitution.44 Thus, it is not clear what this constitution will be
able to break with.45 The South African constitution uses the term past conflicts to de-
note the history of settler invasion, conquest, and anti-colonial resistance.46 Furthermore,
since the 1996 constitution did not create a new state, it is not revolutionary.47 The state
structure established by the settlers was preserved during the succession of governments.48
Indigenous sovereignties remain subject to the colonial state structure established under the
current constitution. 49Only when a constitution restores the sovereignty of oppressed indig-
enous kingdoms and revokes the colonial state structure is it considered decolonising.50 This
is one way to create a post-conquest state.
Santo’s Abyssal Line and the Constitutional Reproduction of Apartness
When discussing constitutional analyses and reorganisation of historically settler colonial
states, Santos’ metaphor of the line holds particular significance.51 These states are defined
by the line, which is based on both visible and invisible differences between the indigenous
people and the settlers, with the latter being thrust into the sub-human, or “other side” of
the line.52 The conquering group claims that the conquered lack reason, a normative
41
Madlingozi (n 9)
42
Madlingozi (n 9)
43
Madlingozi (n 9)
44
Madlingozi (n 9)
45
Madlingozi (n 9)
46
Madlingozi (n 9)
47
Madlingozi (n 9)
48
Madlingozi (n 9)
49
Madlingozi (n 9)
50
Madlingozi (n 9)
51
Tshepo Madlingozi “On settler Colonialism and post-conquest constitutionness: The Decolonising Constitu-
tional vision of African Nationalists of Anzania/South Africa” 1
52
Madlingozi (n 51) 1
framework, and a body of law, or at most that these are pre-modern, after violently estab-
lishing themselves at the core of the “new world” by eradicating, marginalizing, and “invisi-
bilizing” the conquered peoples.53 To make sure that only their way of life is valued, brutally
upheld, and eventually constitutionalized, settlers try to internally redraw the lines of amity
in these societies and polities of apartness.54 Thus, when applied within the context of South
Africa, Madlingozi maintains that settler colonialism, even more than colonialism it seeks to
alter the society forever.55 By doing this, settlers transform the original occupants into “for-
eign natives” who are viewed as outsiders in their nation and deprived of their land, identity,
and visibility.56 in addition to supporting political initiatives meant to legitimize settler pres-
ence and naturalize the historical reality of conquest, constitutional law, whether codified or
uncodified, plays a pivotal role in enabling the conquest, dispossession, and internal and ex-
ternal alienation of indigenous peoples.57 Poor Black people are still living in a state of stag-
nation, proving that the so-called transition from apartheid to post-apartheid has not broken
the structural line of colonialism and apartheid. Madlingozi uses the term "the forgotten" to
refer to those who are stranded on the "other side" of the line. .”58 In this context, they are
excluded from the symbolic bridge leading to the new Africa.59
Black Consciousness and the Rejection of Post-Apartheid Integration
Steve Biko and leaders of the Black Consciousness Movement (BCM) emphasized that South
Africa is ruled by a “totality of white power” that oppresses Black people politically, cultur-
ally, psychologically, and physically.60 In addition to restricting the emancipatory strategy to
de-segregation and democratization, this total structure also, and perhaps most importantly,
is divided into a dominant white world and a subordinate Black world, which limits Black peo-
ple's response to their oppression.61 BCM theorists cautioned that democratization and trans-
formative constitutionalism would only lead to the exodus of a few Black elites from the Black
53
Madlingozi (n 51) 1
54
Madlingozi (n 51) 1
55
Madlingozi (n 51) 1
56
Madlingozi (n 51) 1
57
Madlingozi (n 51) 2
58
Madlingozi (n 38) 125
59
Madlingozi (n 38) 125
60
Madlingozi (n 38) 133
61
Madlingozi (n 38) 133
world into the white world unless white supremacy was completely destroyed.62 They con-
tended that this integration equates to assimilation into a "white-type society" on "this
side" of the Line, fostering a neo-apartheid environment that promotes Black-on-Black ex-
ploitation.63 This guarantees that Black elites, who are accustomed to the white world, will
have a stake in preserving a divided, anti-Black society.64 This explains BCM’s complete oppo-
sition to politics of recognition-incorporation-distribution.
In white supremacist societies, Biko, echoing Frantz Fanon’s analysis in “NEGRO settler,” rec-
ognized that emancipation-as-recognition, which necessitates recognition from the settler-
created state, amounts to a plea to become a colonial subject in white supremacist societies
because it required acceptance from the state established by the settler.65 Black social death,
misrecognition, and self-alignment would all worsen as a result.66 For Biko, the idea of eman-
cipation as incorporation was equally unthinkable since there was no legitimate society to be
a part of, only a barbaric minority society that survived by eating the “ non-beings” it had
created.67 Like Robert Sobukwe, Biko believed that to eradicate the ant-Black world, the de-
colonial imperative was to “overhaul the whole system”.68
According to Frank Wilderson, Black people cannot join a system of acknowledgment "as be-
ings" without the recognition and incorporation itself being annihilated.69 Any resource dis-
tribution in a so-called post-apartheid context based on Black recognition is ultimately anti-
liberatory because it perpetuates racialism, the idea that there are races and that racial iden-
tity is a necessary mediator for access to social and economic goods, unless the current soci-
ety is destroyed.70 According to Biko’s approach to the current debate over “redistribution or
recognition first, it disregards the fundamental injustices of settler colonialism, which include
the destruction of indigenous sovereignties and land dispossession.71 Secondly, it affirms the
colonizer’s ontological and epistemological superiority by putting them in the position of
62
Madlingozi (n 38) 133
63
Madlingozi (n 38) 133
64
Madlingozi (n 38) 133
65
Madlingozi (n 38) 133
66
Madlingozi (n 38) 134
67
Madlingozi (n 38) 134
68
Madlingozi (n 38) 134
69
Madlingozi (n 38) 134
70
Madlingozi (n 38) 134
71
Madlingozi (n 38) 134
recognizing the “previously unrecognized.72 Third, the politics of identity, the most pernicious
legacy of colonial modernity, is reaffirmed, undermining the BCM’s ultimate objective: A “true
humanity” in which, a future Azania, there are neither Black nor white people. 73
Biko’s warning is still relevant today: The post-apartheid order would remain a divided, anti-
Black society without a Black Consciousness approach. With still 70% of the population mar-
ginalized, South Africa could manage to present a compelling image of post-racialism to the
rest of the world.74 The BCM’s analysis offers a predictive diagnosis of the constitutional order
that emerged after 1994. It demonstrates the persistence of the logic of conquest in a new
form, one that is not open to subjugation but rather a politics of inclusion within an anti-Black
system. Therefore, the 1996 Constitution did not break the conquest; rather, it was recog-
nized, disguising dominance with liberal rights and the appearance of equality.
The Miserable Reality of Neo-colonial Constitutional Democracy
To demonstrate the miserable realities of post-colonial constitutional dispensation,
Madlingozi explores the crisis of ongoing racial dehumanization and social invisibility. The fact
that black-led trade unions and poor black communities organize more than 2000 protests
annually is proof of the first crisis.75 Every day, Black communities living in poverty engage
in community uprisings to demand certain fundamental social goods, protest against the ab-
sence of democracy, and express their discontent with their ongoing marginalization and in-
visibility.76 They are now trapped in a transitional state of “unfreedom” as a result of consti-
tutional changes made post-1994.77 A condition of “unfreedom” since this segment of the
population continues to experience racial subordination, gender oppression, structural pov-
erty, and systemic invisibility.78 According to this viewpoint, many South Africans continue to
live in extreme poverty and exclusion, treated as “bare life”, even though the constitution is
commended for incorporating socio-economic rights and courts are frequently commended
for upholding them.79
72
Madlingozi (n 38) 134
73
Madlingozi (n 38) 134
74
Madlingozi (n 38) 134
75
Madlingozi (n 51) 5
76
Madlingozi (n 51) 6
77
Madlingozi (n 51) 6
78
Madlingozi (n 51) 6
79
Madlingozi (n 51) 6
The inability of the post-1994 constitutional regime to significantly change the cultural and
existential conditions that cause many Black South Africans to feel that they do not fully be-
long as South Africans is the second sign of anti-Black bifurcation. The colonial-era “bifurcated
state” has not been largely dismantled by the constitutional and state transformation process
since 1994.80 While the rural population continues to be subject to traditional authority and
a distorted form of customary law that often serves the interests of elites, urban dwellers are
governed by civil law and recognized as citizens within this system.81 Although the urban and
rural domains are not completely distinct, rural residents are still primarily treated as subjects
rather than full citizens.82
The fact that African law is still subordinate to Eurocentric law, even though it is positioned
on the same level as Eurocentric common law on paper, constitutes the third “post-Apart-
heid” constitutional crisis.83 Since African law, like all other laws, has been recognized on
the basis that it adheres to constitutional principles, the argument that jurisprudential equal-
ity has been achieved ignores the fact that the current constitution is by definition not cultur-
ally and civilizationally neutral.84 The constitution largely reflects the epistemological frame-
work of South Africa's previous conquerors.85 This persistent undervaluation of African juris-
prudence is a sign that the “new South Africa” still views African lifeways, epistemologies, and
social ordering systems as inferior.86 Indigenous sovereignties’ ongoing submission to the
colonial state form constitutes a serious constitutional crisis.87 Rural communities are thus
denied equal legal standing as well as acknowledgement.88 Although the Traditional Leader-
ship Act of 2003 recognizes traditional leaders in the constitution, this recognition is re-
stricted, conditional, and serves to uphold hierarchical control.89
The final constitutional crisis resides in the inability to create an order that is genuinely post-
settler.90 The property clause in Section 25 has essentially solidified colonial land
80
Madlingozi (n 51) 6
81
Madlingozi (n 51) 6
82
Madlingozi (n 51) 6
83
Madlingozi (n 51) 7
84
Madlingozi (n 51) 7
85
Madlingozi (n 51) 7
86
Madlingozi (n 51) 7
87
Madlingozi (n 51) 7
88
Madlingozi (n 51) 7
89
Madlingozi (n 51) 7
90
Madlingozi (n 51) 7
dispossession by presenting land reform as a market-based system, commonly known as
“willing buyer, willing seller.”91 As a result, the dispossessed have only received a small per-
centage of the land back. The profoundly unequal settler-native dynamic is maintained by this
failure, maintaining the material and symbolic dispositional relationship.92
These crises show that neither the de-constitution of the fundamental framework of an in-
hospitable world established by settlers nor the establishment of a post-settler colonial
world that is unified and compassionate have been brought about by South Africa's "trans-
formative constitution.93" If everyone has equal access to essential services, is able to partic-
ipate in the economy, has the chance to take part in democratic discussions, and is gener-
ally able to pursue happiness, then the society is said to be just.94
The Irreconcilability between the concept of ubuntu and the Colonial Legal Order
The concept of Ubuntu is the foundation of African traditional jurisprudence, leadership, and
governance.95 However, by design, the conqueror South Africa was established in opposition
to Ubuntu rather than in its place.96 The introduction of “Ubuntu” was intended to eradicate
the presence of historical justice from South Africa’s political economy and legal system.97 Its
purpose was to facilitate a peaceful move from colonial-Apartheid to neo-colonial democ-
racy.98 As defined by Dladla, it signified the change from “slavery by coercion to slavery by
consent.99” Ubuntu was instrumental in gaining the support required for the new conqueror
constitution to come into effect, which would bind the indigenous people to the political and
economic system they had conquered. This notion is drawn from Hobbes’ fundamental thesis
that conquest was not the victory in war itself.100 Rather, conquest must give their consent,
91
Madlingozi (n 51) 7
92
Madlingozi (n 51) 7
93
Madlingozi (n 51) 8
94
Madlingozi (n 38) 129
95
Dan Kuwali “Decoding Afrocentrism: Decolonizing Legal Theory” in Oche Onazi (ed) African Legal Theory and
Contemporary Problems: Critical Essay (2014) 84
96
Ndumiso Dladla “Not yet Ubuntu: Aphilosophical essay on the history of government and the (ab)use of Ub-
untu in Conqueror-South Africa
97
Dladla (n 83) 160
98
Dladla (n 83) 160
99
Dladla (n 83) 160
100
Dladla (n 83) 173
even if the only option is to choose between life and death.101 The conqueror had the right to
rule over the conquered if he consented to “choose life”.102 These rights are known as “the
right of conquest” because they enable the conqueror to successfully command, govern, and
bind the conquered by law.103 Additionally, it made the strange continuity of historical injus-
tice possible through the transition. “After 1994, 'Ubuntus' emerged in the scholarly discourse
in South Africa and beyond.104 These Ubuntus are 'Ubuntus' without and even against Abantu,
the native conquered people who have long served as its repository.105
Conclusion
This chapter has demonstrated that, despite its reputation as a transformative text, the 1996
Constitution continues to operate within a colonial and settler-legal framework. Through an
analysis of epistemic violence, the myth of rupture, and the reproduction of colonial power,
it has been demonstrated that African Customary Law is not truly recognized but rather sub-
ordinated and assimilated. The constitutional order, rather than breaking with the past, en-
trenches inequality through symbolic inclusion and liberal democratic imagery. By drawing on
the work of Madlingozi and others, it became clear that a truly decolonising constitution must
restore indigenous sovereignty, dismantle colonial state structures, and affirm African epis-
temologies and social orderings.
The chapter further engaged Black Consciousness critiques, which reject the politics of recog-
nition and warn against the assimilation of Black elites into an anti-Black system. This critique
deepens the argument that post-apartheid South Africa remains a neo-colonial society, where
poverty, racial marginalisation, and epistemic subjugation persist. The persistent crises
around land, identity, law, and belonging signal that the current version of constitutional de-
mocracy has not succeeded in bringing about freedom. Finally, the chapter examined how
Ubuntu has been co-opted for pacification purposes rather than for justice, underscoring the
deep-seated persistence of the colonial order. Therefore, a post-conquest constitutional or-
der is imperative for genuine justice and belonging to be possible in South Africa.
101
Dladla (n 83) 173
102
Dladla (n 83) 173
103
Dladla (n 83) 173
104
Dladla (n 83) 160
105
Dladla (n 83) 160