A constitutional and legal framework for a prosperous South Africa

History teaches us that successful countries – in the sense of being more peaceful and prosperous than others – have fundamental characteristics in common:
 

• They have constitutions that limit the powers of the executive and administrative arms of government and protect citizens from arbitrary and autocratic government actions.
   
• Their citizens understand and support constitutional limitations of government power and demand adherence to the rule of law.
   
• They have independent judiciaries that jealously guard the constitutional and legal rights of citizens against legislative erosion.
  
  South Africa’s past has left its people ill prepared for dealing with a rights-based society. Fundamental rights, taken for granted in more humane societies, were trampled on with impunity. This heritage leaves us with at least four areas of grave concern:
   
• A nation that has lived under a biased system is inclined to perpetuate bias in its attempts to redress past wrongs – postponing indefinitely the adoption of a dispensation based on true and impartial justice.
   
• Those who are charged with formulating, evaluating and approving, implementing and interpreting legislation as well as applying the law do not easily discard their past conditioning – even if they themselves were the victims of injustice.
   
• The statute books remain filled with legislation that was adopted with perverse intentions – a situation that may take decades to correct.
   
• We all have to learn to think and live as free and independent beings - a capability that is acquired with the utmost difficulty by a previously subjugated people.
  
  South Africans are a nation of great promise and I am convinced that we can find solutions to these problems. However, there can be no doubt that this will require dedication, goodwill, and above all, adherence to sound constitutional and legal principles.
  
  The Free Market Foundation, in common with the rest of the nation, is most anxious that South Africa should throw off its negative heritage, especially as far as the law is concerned. That is why the FMF organised a conference with the title Liberty and Prosperity: Principles of Good Law in a Complex Society. The purpose was to discuss the kind of justice system South Africa should be striving to establish, and how it can be achieved. There can be no doubt that South Africa will have greater civil and economic liberties if we make our Constitution a living document respected by citizens and government alike; and especially if government willingly abides by the limitations the Constitution places on its powers. If we then also adopt a legal framework based on respect for the rule of law, with strict limitations on the granting of discretionary administrative powers, we will have created the conditions needed to make South Africa a truly free, just and prosperous nation.
  
  
  (Adapted from the opening remarks of Dr Brian Benfield to the Liberty and Prosperity: Principles of Good Law in a Complex Society conference on 27 July 2000. Dr Benfield is the Chairman of Clientéle Holdings Limited and Deputy Chairman of The Free Market Foundation.)
  
  FMF Policy Bulletin / 02 February 2010