Is the Rule of Law under siege in South Africa?

The rule of law is fundamental to South African law. It is enshrined in the first chapter and first section of the Constitution. It is a binding Founding Provision. Section 1(c) provides for the “supremacy of the Constitution and the rule of law”. Despite its pivotal importance for South African law, there is little understanding of what it means, especially among many lawmakers. This is one of the legacies of the apartheid era. True transition requires the cultivation of a clear understanding of what the rule of law means in practice and its implications for conceiving and drafting legislation and regulations.

“The rule of law” is distinguished from “the rule of man”. What that means is that everyone’s rights and duties must be readily apparent from the law and must not be subject, except in exceptional circumstances, to discretionary power in the hands of officials. It also means that substantive laws must be legislated by an elected, transparent and accountable legislature. They must be executed by the executive, and adjudicated by an independent judiciary.

Regulation, sometimes inappropriately called “subsidiary legislation”, should not be thought of as an alternative way of making laws. Power should be delegated only to the extent needed to execute and implement substantive law (legislation and common law).

The challenge facing South Africa is to bring about a fundamental break with the apartheid-era mindset, which evolved in a statutory environment without a constitution that required adherence to the rule of law. Parliament was sovereign and not an organ of state, which it should be and now is. A tradition arose of adopting legislation that amounted to a delegation of illegitimate power to the executive. The three basic functions of government (legislative, executive and judicial) were systematically conflated into an omnipotent, and consequently abusive executive. The legislature, consisting of elected and supposedly accountable politicians, became increasingly marginalised and irrelevant. Legislatures at all three levels (national, provincial and local) merely “rubber-stamped” whatever the executive wanted.

South Africa’s transition has been an extraordinary process, often called “the miracle of transition”. In observing that the transition is incomplete, I do not trivialise it. On the contrary, my concern is that the transition process will be undermined if it is not completed by a change in mindset that translates the constitution and the values that inform it into a living reality. There needs to be a spontaneous recognition of measures that are inconsistent with the rule of law in particular, and other constitutional provisions and values in general.

Apart from the philosophical reasons for the “separation of powers”, to prevent the over-concentration of power, there are profoundly practical reasons for it. The legislature operates in accordance with elaborate procedures prescribed by the Constitution and followed according to Parliamentary convention. These procedures are appropriate for lawmaking in a democracy. They ensure transparency, accountability, debate, participation and due consideration. They ensure that substantive laws are made by elected politicians and not by officials. Regulations can be gazetted arbitrarily and that they are sometimes preceded by public discourse, or presented to the cabinet, is a matter of discretion, not a requirement of the Constitution generally or its rule of law provision. For this reason, regulations should be confined to formalistic measures needed to implement substantive legislation adopted by legislators.

A second practical reason for rigid adherence to the separation of powers principle is that it is the only sustainable way to contain the natural propensity of officials to draft laws that shift power over time from politicians to themselves. Their spontaneous inclination is to promote their interests, namely to formulate laws that enhance their powers, status and incomes. Doing so gradually transfers the de facto legislative function from politicians and parliament to the executive, thus eroding democracy itself. Only if there is critical awareness and vigilance amongst politicians, will the erosion of their powers, the rule of law, and democratic values be averted. Most mature democracies and, increasingly, developing countries, ameliorate the problem by having all laws drafted and screened by an autonomous central drafting agency, consisting of trained experts in constitutional law.

The third practical reason for strict adherence to the separation of powers doctrine is that executive discretion is the main cause of real and suspected abuse of power, especially corruption. Discretionary power necessarily generates intolerable and irresistible opportunities and temptations for the abuse of power. The failure to recognise this problem in most less-developed countries is the main reason for disproportionate levels of corruption in the third world.

There is no rigid or obvious boundary between legitimate legislation and regulation but there are clear values and principles embodied in the rule of law that should be appreciated, respected and observed automatically as a national mindset or ethos. Regulators, usually ministers in their executive capacity, should not “sail close to the constitutional wind”. They should not attempt to get away with as much as they can. There is no need for regulations to test the limits and they should seldom if ever be subject to legitimate constitutional challenge. Acts should be drafted so as to contain all substantive law. Legislators must decide and debate in public what laws they want. Creating excessive discretionary power is undesirable in practice, unsound philosophically, at variance with democratic values and an inferior way of making law.

The separation of powers component of the rule of law has two dimensions. It prescribes and proscribes what may or must be in statutes, on one hand, and in regulations on the other. A statute or a regulation may be ultra vires, the former for one and the latter for two reasons. If an Act purports to delegate more power than allowed, it is, to that extent, unconstitutional, regardless of whether the power delegated putatively is used by the executive. Regulations are unconstitutional if they exceed what is authorised by their parent statute, and even if they accord with it, they are unconstitutional if the delegated power is excessive or ambiguous.

The Constitutional Court has ruled that it must be clear from legislation why powers are delegated; to what end are they to be executed. They must also be accompanied by objective criteria for implementation. Delegated power cannot be implemented capriciously or according to the arbitrary whim of the executive. Statutes must provide clearly and unambiguously for how officialdom must or may exercise powers, and what, precisely, citizens must do to remain within the law. Citizens should not find themselves at the mercy of arbitrary or discretionary power. They should be able to establish with certainty from relevant statutes what their substantive rights and obligations are. What officials must do procedurally for the implementation of laws is the legitimate substance of regulations. Typically, regulations should do no more than prescribe formalities: forms to be completed, office hours, registration fees, and the like.

Many new acts, like their apartheid-era predecessors, do not specify the purpose for which they purport to delegate power under contemplated regulation. They do not always specify objective criteria for implementation and this omission should cause them to be found unconstitutional. Even if the Constitutional Court interprets the Constitution generously and finds them constitutional they are certainly undesirable according to the principles of good law.

A requirement of the rule of law is certainty: people are entitled to “know where they stand” so to speak. This is an obvious derivative of the rule of law. If there is no certainty, discretion rather than law rules. Uncertainty in law creates real or suspected injustice and increases the probability of bureaucratic inefficiency.

Finally, the assumption that the world is more complex or that a complex world needs more laws, is mistaken. The “modern world” is primarily in the first world. We are a developing country. The quantity and nature of laws appropriate for our state of development is that which existed in the world’s most advanced countries when they were where we are now. We curtail our prospect of catching up to them to the extent that we mimic what they now do after their success.

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 / 22 March 2005 - Policy Bulletin / 11 August 2009