A sorry day for the rule of law in South Africa

It is incumbent on all of us to inform ourselves about the rule of law and what the concept means.The rule of law is a major part of our constitution and we should demand that all branches of government respect and abide by its fundamental principles. It is not the statutes that are adopted by Parliament. The rule of law consists of the set of principles that should guide the formulation and application of all our laws, resulting in what law should be in a country that aspires to be both free and prosperous.

In a recent article for Reason.com, writer Timothy Sadefur said of the US legal system, “Any plaintiff or defendant wants the court to be alert to protect the rights of the innocent. That requires judges to actively examine the facts and the law, to reach just and rational results. But under the theory of “judicial restraint” that prevails in today’s courtrooms, judges often do the opposite. That theory—which applies to many of our most important constitutional cases—requires judges to presume in the government’s favor, disregard the evidence, and even invent rationalizations for laws that cannot stand rigorous scrutiny.”

One of the consequences of the failure of our constitutional protective measures to keep a check on arbitrary government is the rise of sectors of government officialdom that regard themselves as being above the law. Our courts should take care that they do not apply American-style “judicial restraint” in dealing with critical issues. Without strict application of constitutional constraints, history has shown us that a country too easily becomes a victim of autocratic government.

In what I will, for convenience, refer to as the “Shuttleworth case”, the Constitutional Court judges were acutely aware that a potential large state liability hung on their decision. I am not suggesting that the outcome was determined by this “sword of Damocles” hanging over the heads of the Treasury if the case went against it. “There is nothing moot about R2.9 billion which, we are told, would be the approximate extent of the State’s exposure to potential claims” the judgement said. What was apparently moot was that the conditions imposed by the Minister at the time, no longer applied. Where we have the restoration of R250 million to a very wealthy claimant being weighed against potential claims of R2.9 billion faced by a cash-strapped State, avoiding “judicial restraint” requires steely application of the law, and especially of the principles of the rule of law.

In a dissenting judgement, Justice Froneman differed with his Constitutional Court colleagues on the main points of the case. Although he did not mention the rule of law in his reasons for disagreement, the points he made were largely based on its fundamental principles. (1) Revenue raised for the national government (whatever name is given to it) has to be in terms of a Bill approved by Parliament. (2) “Parliament may only delegate subordinate regulatory authority to the Executive and may not assign plenary legislative power to another body.” (3) “Even if national revenue could be validly raised by delegated legislation, the power to do so may not be further sub-delegated”. For all the reasons given, Judge Froneman said that “the Minister’s imposition of the exit charge by announcement in Parliament was constitutionally invalid”. The Judge finally concluded, “For these reasons I would dismiss the appeal with costs and grant the cross-appeal declaring section 9 of the Exchanges Act constitutionally invalid, with costs, including the costs of two counsel”. Nine judges finding against Mark Shuttleworth’s claim for a refund, with one Judge dissenting.

It is doubly tragic that our Constitutional Court has seen fit to make this particular decision within days of the worldwide celebration of the 800th anniversary of Magna Carta, signed by King John of England at Runnymede on 15 June 1215. Magna Carta has become the symbol of the establishment of the constitutional protection of individuals from arbitrary state power. It further symbolises the ascendency of the rule of law as a bulwark in the march of civilisation and the elimination of autocratic power from the processes of governance.   

AV Dicey, the legal historian in his book The Law of the Constitution, wrote that “the principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” In South Africa also, Parliament has the sole authority to legislate, but with its power drawn from and defined by a written constitution that sets out the powers and duties of the various arms of government. These arms of government are more widely defined and circumscribed by the Founding Provisions of the Constitution, which in section 1(c) stipulates one of its values to be “Supremacy of the constitution and the rule of law.” Linking the rule of law to the constitution as the supreme law of the land has considerable significance. It surely means that any legislation or regulation that is inconsistent with the rule of law is unconstitutional.      

What is startling about the Shuttleworth case is the fact that there is no mention of the rule of law, either in the main or the dissenting judgement, although, as mentioned previously, Judge Froneman could just as well have mentioned the fundamental principles of the rule of law that supported his dissenting judgement.

The most important rule of law principles relating to this case were the separation of powers and excessive discretionary powers in the hands of the executive. Division of powers between the various branches of government requires that the making of laws, the day-to-day administration of laws and the interpretation of laws should be done by three separate and essentially independent arms of government – the legislature, the executive and the courts. The matter at issue in the Shuttleworth case was whether a Minister had the right to issue a proclamation without the authority of Parliament and whether excessive discretionary power was being wielded by the executive. The principles of the rule of law, a Founding Provision of the constitution, support Judge Froneman’s dissenting decision.

This is an important and distressing case, in particular because it bodes ill for the future. There are increasing instances of legislation being adopted that is inconsistent with rule of law principles. The granting of almost unlimited discretionary powers to the executive and what has come to be described as “subsidiary legislation” not approved by Parliament are examples of this and have resulted in instances of flagrant disregard for the rule of law by the executive branch of government. It is distressing because, as citizens, we rely on the Constitutional Court to protect us from the erosion of the rule of law by government when Parliament fails to ensure that all legislation is consistent with the constitution and the rule of law, or is circumvented by government proclamation.

Author: Eustace Davie is a director of the Free Market Foundation. 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 FMF.    


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