Equality, constitutionality and the rule of law

The aspect of the rule of law usually mentioned first is the doctrine of equality: that laws must be of general application (an explicit requirement of our Constitution) and apply equally to all. For obvious historical reasons our Constitution allows measures to protect and advance people who are disadvantaged as a result of unfair discrimination.

The Constitution does not refer to race or to people who were “historically” disadvantaged. In other words, it applies to people presently disadvantaged regardless of when they were unfairly discriminated against, so the measure could apply in the distant future. A careful reading of the relevant provision raises important jurisprudential questions regarding prevailing practices and policies many of which may be per se violations of the foundational rule of law requirement of equality, without necessarily being legitimised by the exception.

Understandably, there is a propensity to presuppose that the equality requirement of the Constitution refers to racial equality, that targeted discrimination is racial. The challenge to the rule of law of this interpretation is that equality in other senses may be compromised. There are many examples. Most South African legislation and regulation is from the past. There have, for instance, been about 1,000 new acts of parliament since 1994 while there are over 3,000 acts still in force. Much if not most pre-transition legislation contains provisions inconsistent with the rule of law. Many post-transition laws also reflect a lack of appreciation of, or respect for, the rule of law because of the extent to which the pre-transition mindset survives amongst all concerned with law-making: including legislators, government officials, judges and magistrates, lawyers, NGOs, and representatives of civil society (organised business and labour in particular).

A seminal example that bridges the past with the present is the Consumer Affairs (Unfair Businesses Practices) Act. It is a reincarnation of the harmful Business Practices Act. Like its predecessor, the new Consumer Affairs Act has extraordinary provisions. It purports to permit the executive branch of government to ban virtually any business practice, which is so broadly defined as to include almost anything anyone does in pursuit of income. Some formalities are prescribed but they are nothing like what is required of the legislature should it wish to ban a business practice. In other words, the Act purports to give the executive more law-making discretion than the legislature enjoys under the Constitution.

The Consumer Affairs Act purports to grant the executive an unbridled right to discriminate, a right that is exercised routinely. The net effect is that the executive makes substantive laws, applies them arbitrarily to individual businesses or people (instead of generally to all people), and undertakes quasi-judicial proceedings amounting to a usurpation of the judicial function. Whilst it is required to follow some aspects of the rule of law requirement of due process, it need not and does not comply with the high standards taken for granted in the judiciary, where people have the right to know who their accusers are, of what they are accused, what law it is they are supposed to have violated, the right of access to all relevant information, the right to be present, the right to cross examination, the right of review and appeal, and so on, none of which is applicable to proceedings under the Act.

A derivative of the requirement of legal certainty, the right to know the law, is that laws should not be retroactive. Retroactive legislation is obviously inconsistent with the rule of law. If citizens cannot know at the time of doing something whether it is lawful they are not being ruled by the law. The Act purports to grant the executive the power to decide tomorrow that what you did today is unlawful even though it was lawful at the time when you did it. To use an extreme example, if retroactive legislation was to be considered legitimate law, the activities of the Dutch East India Company in 1652 could today be declared retroactively unlawful.

When he was still teaching, retired UCLA Professor Emeritus, John Hospers, used South Africa’s consumer affairs law in his jurisprudence course as an exercise for students to identify the contravention of every principle of the rule of law in a single short act.

Similar powers that are in conflict with the rule of law exist under an increasing number of statutes, including the Financial Advisory and Intermediary Services Act and the proposed National Credit Bill. One of the most extreme is the Prevention of Organised Crime Act (POCA), known popularly as the asset forfeiture law. As always, the law was defended with persuasive rhetoric to the effect that abnormal powers are necessary to fight “international organised crime”. When rule of law protagonists queried the extraordinary powers in the act, they were told that the government needs to be “tough on crime”, a sentiment shared by almost everyone, which is why there is widespread support for the law. We were reminded during the debate that similar powers exit in the USA, which supposedly legitimises all dubious laws on the basis that the United States is our benchmark for what ought to be done during our transition towards being a mature democracy. This is nearly as bizarre as an attempt to justify dubious things done now on the grounds that they were done under apartheid.

Advocates of the rule of law warned that power corrupts and that powers intended to protect us from large, sophisticated and dangerous crime syndicates would be used against ordinary civilians, which is precisely what is happening. The legislation has to my knowledge never been used to seize the assets of international crime syndicates. Instead it is used to take the assets of ordinary civilians. The Act purports to give officialdom virtually unbridled arbitrary power to take all or any of any citizen’s assets whether or not the person has committed an offence. All your wealth could be seized without your ever having committed an offence, or ever being charged, making it impossible for you to hire lawyers for your defence.

There are essentially two ways of addressing the problem of ensuring that South Africa’s statutes comply with the rule of law and the Constitution. Firstly, government can continue to enforce and make laws of dubious constitutionality pending a Constitutional Court ruling. Or secondly, it can create institutions and a climate of opinion that upholds the rule of law in its full and proper sense as a national value that informs all laws and practices.

One of the problems with leaving it to the Constitutional Court to strike down unconstitutional laws is that they may be in place and enforced for decades before they are challenged. It also places the Constitutional Court in the intolerable position of having, perhaps regularly, to find laws made in the new South Africa unconstitutional. The Court should be reluctant to do so, which is all the more reason why it should not be placed in an invidious position. It should not find itself under undue political pressure to compromise the letter and the spirit of the Constitution.

The constitutional watchdog function should preferably be performed at the other end of the statutory process, when laws are being conceived, long before they are presented to ministers and the public. The government should therefore consider adopting the procedure, now increasingly followed in mature democracies, of having all laws drafted by specially trained experts in a central drafting agency, and then subjecting them to mandatory screening by an autonomous agency. This would be an ideal criterion for peer review under NEPAD.

Finally, it is necessary to respond to the contention that individual aspects of the rule of law cannot be upheld absolutely. It is argued, for example, that the separation of powers has to be compromised because in a modern complex world, legislators cannot be expected to take responsibility for all the legislation required. This is nonsense. There is no reason why substantive law now being processed as regulations (“subsidiary legislation”) should not be presented to parliament as part of the proposed legislation. Indeed, it is impossible for legislators to adopt a law in good faith if they do not know what law they are really making because its substance is to be in regulations subsequently prepared and never considered by them.

The eminent jurist Richard Epstein has observed that modern advanced democracies should be replacing complex laws with simple rules that create unambiguous rights and are readily understood by people to whom they apply. The simple rules that Epstein considers desirable for advanced democracies are even more necessary in our developing democracy. South Africans deserve to be governed by laws that are constitutional, of general application and equally applicable to all, comply with the rule of law, and simple enough for everyone to understand and comply with.

Author: Leon Louw is the Executive 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 Free Market Foundation.

FMF Feature Article/29 March 2005 Policy Bulletin 19 May 2009

Note: This article by Leon Louw is the second part of a paper on the rule of law. The first part was published on 22 March 2005 as: Is the rule of law under siege in South Africa?