Did you know that when you drive 140 in a 120 km/h zone, you are not ‘breaking the law’, at least not directly? The same applies when you ‘illegally’ park your car on the sidewalk, or when you sell or sublet your RDP house without permission. How can this be?
What you are doing is falling foul of a regulation, determination, notice, directive, or whatever else they decide to call it on that particular day; and none of these things are law. We have to obey these regulations because the law says we must, but our acquiescence to them does not render them democratically legitimate.
The law is a respectable institution characterised by regularity, relative rigidity, and reasonableness. These ‘Rs’ lead into another: The Rule of Law, which is a principle entrenched in South Africa’s legal order. This means the law applies generally, does not change often, is accessible, and is informed by evidence and reason, rather than opportunistic political considerations.
Section 1(c) of the Constitution provides that both the Constitution and the Rule of Law are the supreme law of South Africa, and section 2 provides that any law or conduct inconsistent with this reality is void. These provisions, insofar as discretionary powers relate, have, so far, been all but ignored by our courts, and crucially, by Parliament itself.
One would think Parliament would want to jealously guard its domain as the sole national lawmaker, but it does not. Parliament assigns wide, unconstitutional, discretionary powers to the executive in practically every new statute that it passes. This could be, perhaps, because it wants to shift responsibility for failure to the executive, or is it simply continuing an unjustifiable political tradition? Whatever the reason, only illegitimacy underpins these ‘laws’ by which we are bound.
These ‘laws-which-are-not-really-laws’ are pervasive and undermine our freedom in essentially every way outside of our homes. Vital aspects of our lives, like healthcare, are not regulated by law, but by the whims of officials whose names we will never know and who we are unlikely ever to meet or see on television. They, like many of us, pitch up at work early in the morning, sit down in a modest office, do paperwork, and go home. That ‘paperwork’, however, is of a special nature: it is the diktat according to which all South Africans must live, or else the police, SARS, or a host of other government agencies will come down hard on us.
Two million South Africans will lose access to their affordable private healthcare once the health department’s new ‘Demarcation Regulations’ come into effect. This will have the effect of eliminating the low-cost benefit options which users of health insurance (as opposed to expensive medical schemes) have been accessing since 2002. These affordable packages came about as a market response to the highly-regulated and expensive medical schemes regime government introduced to ensure ‘social solidarity’. The Demarcation Regulations are being introduced because of government’s displeasure at the success people achieve in obtaining affordable, effective healthcare in the free market and choose to avoid receiving treatment at state facilities. As the name of the regulations indicate, these are not laws debated in Parliament by the represented parties, but an intervention that requires only an official’s signature to have effect.
How can it be, after waiting five long years to elect our representatives to go to Parliament to make the laws that we, as the taxpaying public, are prepared to sanction, that unelected, contract-bound officials end up making the rules which govern our lives? This is a clear violation of the Rule of Law. It is one of the very reasons the concept of the Rule of Law was devised in the first place – to prevent arbitrary governance.
If Parliament wants a law, it must make that law itself, and not shift responsibility to the executive government, which is always only too happy to expand its power and control over society. It is Parliament that must set the speed limits and craft real traffic law, and prescribe in precise terms when it is unlawful to sell or sublet one’s home. Finally, it is Parliament that must rob South Africans of their right to healthcare, so that we know who to hold accountable.
Martin van Staden is Legal Researcher at the Free Market Foundation