Granting almost unlimited discretionary powers to the executive is a flagrant disregard of this principle, writes Eustace Davie.
South Africa’s Constitution contains a unique founding provision, which entrenches the supremacy of the Constitution and the rule of law.
The detailed constitutional provisions and rule of law principles are, together, intended to protect citizens from arbitrary government. While the role of the Constitution is widely understood, it is clear that the same cannot be said of the rule of law.
The Constitutional Court judgment in the Mark Shuttleworth case was disappointing in that it did not mention the rule of law as a factor in determining whether the action of the minister of finance in imposing an “exit charge” on Shuttleworth’s export of approximately R2.5 billion of his money from South Africa was or was not unconstitutional.
In a dissenting judgment, Justice Johan Froneman differed with his Constitutional Court colleagues on the main points of the case.
He did not mention the rule of law in his reasons for disagreement, but the points he made were largely based on its fundamental principles.
First, revenue raised for the national government (whatever name is given to it) has to be in terms of a Bill approved by Parliament.
Second, “Parliament may only delegate subordinate regulatory authority to the executive and may not assign plenary legislative power to another body”.
Third, “even if national revenue could be validly raised by delegated legislation, the power to do so may not be further sub-delegated”. For all the reasons given, Judge Froneman said that “the minister’s imposition of the exit charge by announcement in Parliament was constitutionally invalid”.
He finally concluded: “For these reasons I would dismiss the appeal with costs and grant the cross-appeal declaring section 9 of the Exchanges Act constitutionally invalid, with costs, including the costs of two counsel.” Nine judges found against Shuttleworth’s claim for a refund, with one dissension.
Legal historian, AV Dicey, in his book The Law of the Constitution, wrote that “the principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”.
In South Africa also, Parliament has the sole authority to legislate, but with its power drawn from and defined by a written Constitution that sets out the powers and duties of the various arms of government.
These arms of government are more widely defined and circumscribed by the Founding Provisions of the Constitution, which in section 1(c) stipulates one of its values to be “Supremacy of the Constitution and the rule of law”.
Linking the rule of law to the Constitution as the supreme law of the land has considerable significance.
It surely means that any legislation or regulation that is inconsistent with the rule of law is unconstitutional.
What is startling about the Shuttleworth case is the fact that there is no mention of the rule of law, either in the main or the dissenting judgment, although Judge Froneman could just as well have mentioned the rule of law principles that supported his dissenting judgment.
The most important rule of law principles relating to this case were the separation of powers and excessive discretionary powers in the hands of the executive.
Division of powers between the various branches of government requires that the making of laws, the day-to-day administration of laws and the interpretation of laws should be done by three separate and essentially independent arms of government – the legislature, the executive and the courts.
The matter at issue in the Shuttleworth case was whether a minister had the right to issue a proclamation without the authority of Parliament and whether excessive discretionary power was being wielded by the executive.
This is an important and distressing case, in particular because it bodes ill for the future.
There are increasing instances of legislation being adopted that is inconsistent with rule of law principles.
The granting of almost unlimited discretionary powers to the executive and what has come to be described as “subsidiary legislation” not approved by Parliament are examples of flagrant disregard for the rule of law by the executive branch of government.
As citizens, we rely on the Constitutional Court to protect us from the erosion of the rule of law by the government when Parliament fails to ensure that all legislation is consistent with the constitution and the rule of law, or is circumvented by government proclamation.
*Davie is director of the Free Market Foundation
** The views expressed here are not necessarily those of Independent Media.
This article first appeared in Pretoria News on 8 July, 2015