Three most-overlooked provisions of the Constitution

The Constitution exists in the abstract to most people. They know there is a document, somewhere, with a list of principles and values which protects them from… something, but what it actually says and how it is set out, is not known to most.

This is perfectly fine in a constitutional democracy – not everyone needs to be a lawyer, and the courts exist for this specific purpose; to ensure rights are protected.

However, it is worrying when the courts themselves, and the government more broadly, simply overlook, or appear apathetic toward certain crucial provisions in the Constitution.

Here are the three most important provisions of the Constitution that I believe are generally overlooked or disregarded.

In third place, the Weasel Clause
The State’s favourite provision in the Constitution is the “weasel clause”. Also known as section 36, it provides for the limitation of the rights contained in the Bill of Rights. Government does not necessarily ‘overlook’ it; it simply reads the parts it likes, and ignores the parts it does not.

Section 36 provides that rights – such as the right to property or freedom of expression – may be limited by law. That is as far as some state law advisors and judges are prepared to read. But the provision goes on to say that the limitation must be reasonable and justifiable in an open and democratic society based on the values of freedom, human dignity, and equality.

The limitation must be reasonable: In other words, it must be backed up by evidence that proves its desirability and practicability, and a ‘reasonable person’ (unbiased third party) must be convinced that the limitation is justifiable in light of all the pros and cons. But it must also be justifiable within the context of an open society populated by rights-bearing individuals.

The provision does not stop there. It provides a list of five criteria (the courts can consider other factors, in addition to these five) that includes the nature of the right and the limitation, and the relationship between the limitation and its purpose. What is overlooked, is the fact that the courts must consider whether or not there is a less restrictive way for the State to achieve the purpose of the limitation, rather than using the limitation itself.

What comes to mind here is land reform. The State owns vast swathes of unused land, which it can give to previously disadvantaged individuals at virtually no cost. But what does the government constantly threaten to do? To take land away from productive farmers. Here, the State has less restrictive means at its disposal to achieve its purpose – being equitable access to land.

In second place, Freedom of Trade, Occupation, and Profession
Section 21 of the Constitution says that all South Africans may freely choose their trade, occupation, or profession. The practice of the trade may be regulated by law. (My italics.)

The State may not prohibit any professions – unless those professions violate the Bill of Rights, such as that of a professional assassin.

This provision means any notion that the government has of reintroducing conscription or ‘national service’ in the public service, is patently unconstitutional. You may recall, the State was seriously considering this in 2015. I, for one, certainly hope that idea has been shelved.

The Constitutional Court overlooked this section in the infamous Jordan case, where the legality of prostitution in the new South Africa was decided. The Court devoted a few insignificant paragraphs to this crucial section of the Constitution (but focussed extensively on the equality provision, which is much less relevant to the question of prostitution) and ended up deciding that the criminalisation of prostitution was legal.

That judgment is rife with logical, and, clearly, legal errors, and it should ideally be reversed, lest more poor men and women spend time in prison for engaging in a voluntary practice.

And in first place, is the Rule of Law
Section 1(c) of the Constitution provides that the Constitution is the supreme law of South Africa, alongside the principles of the rule of law. It does not create a hierarchy between the Constitution and the rule of law, but establishes them as co-equals. According to Judge Madala of the Constitutional Court in the Van der Walt case, the rule of law “is a fundamental postulate of our constitutional structure” and “it permeates the entire Constitution.”

What does the rule of law mean? It means South Africans know which laws apply to them, what those laws say, that the law is made by Parliament and not government officials, that the law is enforced fairly and lawfully, and that the enforcers of law do not have wide, life-altering discretion in how they will enforce the law. As the saying goes, the rule of law is the opposite of the rule of man.

Author Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programs Director for Students For Liberty in Southern Africa. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.

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