Arbitrary powers of officials subvert principles of good law

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

For interviews:

The views expressed in the article are the author's and not necessarily shared by the members of the Foundation.

This article may be republished without prior consent but with acknowledgement to the author.

The FMF is an independent, non-profit, public benefit organisation, created in 1975 by pro-free market business and civil society national bodies to work for
a non-racial, free and prosperous South Africa.
As a policy organisation it promotes sound economic policies and the principles
of good law. As a think tank it seeks and puts forward solutions to some of the country's most pressing problems: unemployment, poverty, growth, education, health care, electricity supply, and more. The FMF was instrumental in the post-apartheid negotiations and directly influenced the Constitutional Commission to include the property
rights clause: a critical cornerstone of economic freedom.

+27 11 884 0270
PO Box 4056, Cramerview 2060

This article was first published by Business Day on 26 May 2023 

Arbitrary powers of officials subvert principles of good law

The Founding Provisions of the South African Constitution are not strictly applied in the adoption of legislation by Parliament, and consequently, in the governance of the country. Founding Provisions, among the values upon which the state is founded, include, “(a) human dignity, the achievement of equality and the advancement of human rights and freedoms (b) non-racialism and non-sexism, and (c) Supremacy of the constitution and the rule of law.”
According to statistics South Africa, on 31 March 2023, there were 12.753 million unemployed South African (including 4.782 million “discouraged workers” who had given up looking for jobs). They will attest to the fact that their human dignity is not being respected, they do not have legal equality with South Africa’s employed people, and their human rights and freedoms are not being advanced by the officials who have been granted arbitrary power over them by the incumbent government. On the contrary, their constitutional rights to work, earn, and support themselves and their families are being abrogated by the officials.     
Apart from the stipulations in the constitution there is a long history of philosophers, judges, and scholars warning against the granting of discretionary powers to executive arms of government. The deprivation of the rights of South Africa’s unemployed people, for instance, has placed South Africans, according to the International Labour Organisation (ILO) at the top of the list of the worlds unemployed people.  
Increasingly, laws and regulations are being determined by government officials and not by Parliament. The constitution should prevent Parliament from abdicating its powers and MPs should be required to maintain vigilant supervision over all laws and regulations that are promulgated. The following excerpts from the writings of legal scholars give an indication of the importance and historical roots of this controversy:
In 1624, Sir Edward Coke warned the English parliament in his Institutes of the Laws of England “to leave all causes to be measured by the golden and straight mete-wand of the law, and not to the uncertain and crooked cord of discretion”.
The word “arbitrary” has two meanings, which were long confused. As parliament began to act as arbitrarily as the king, it came to be recognised that the arbitrariness of an action depended not on the source of the authority but on whether it was in conformity with pre-existing legal principles. The points most frequently emphasised were that there should be no punishment without a previously existing law providing for it, and that all statutes should have prospective and not retrospective operation, and that the discretion of all magistrates should be circumscribed by law.
Philosopher John Locke, in his Second Treatise on Civil Government, was concerned with how power could be prevented from becoming arbitrary: “Freedom of men under government is to have a standing rule to live by… made by the legislative power erected in it; a liberty to follow my own will in all things, where that rule prescribes not; and not to be subject to the inconstant, uncertain, arbitrary will of another man.”
The rule of law requires that governments should enact only such laws as are general in nature, are applicable to everyone including itself, and which do not attempt to bring about particular outcomes. The rule of law was described by Nobel economics laureate, Friedrich Hayek, in his book, The Constitution of Liberty: “Apartheid was possible”, he said, “because the government of the time ignored the rule of law and gave extensive arbitrary powers to officials.” Many of those powers still exist, including state ownership and control of large tracts of land and extensive ownership of property in land, harbours, railways, energy generation and distribution, and much more.
Friederic Bastiat (1801–1850) a French economist, statesman, and author, did most of his writing during the years just prior to and immediately after the French Revolution. According to the records, as a member of the French Parliament he spent his time analysing and explaining how the proposed socialist fallacies would eventually degenerate into communism and France and the French people would suffer the consequences.  
Unmistakable evidence shows that South African government officials are asking for even greater powers. Citizens need protection against this trend. Two ways of affording that protection are: that MPs resolutely refuse to approve any legislation that is not in accordance with the rule of law, and particularly, that they refuse to approve provisions in legislation that grant arbitrary discretionary powers to government officials.
The courts have the task of reviewing and controlling the acts of the administrative branch of government, especially to ensure that they do not exceed the powers that Parliament intends to grant when approving legislation. South Africa’s legislation is, unfortunately, not conforming to the fundamental principles of good law as described by past great legal scholars writing on those principles. Closer to home, they are not abiding by the constitution of the Republic of South Africa. Voters can bring about change by insisting that all legislation must conform with the principles as set out in the constitution.
In his classic work “A Conflict of Visions, Ideological Origins of Political Struggles”, renowned economist and author, Thomas Sowell, explains that it is not only the intellectual consistency but the moral thrust of the opposing visions which give them historic importance. These are not rarefied theoretical issues among intellectual giants or emotional controversies among zealots. Everyone is part of the conflict of visions and the stakes are as real as money, power, and survival.”

Help FMF promote the rule of law, personal liberty, and economic freedom become an individual member / donor HERE ... become a corporate member / donor HERE