South Africa
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as a "Diceyan
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Rechtsstaat
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Original contribution by Francois Venter, Professor of Law at the North West University in Potchefstroom, South Africa.
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In the scholarly and judicial culture of South Africa of the past three centuries, two distinct strains have been in evidence: early Dutch and English colonial dominance gave way in the late 20th Century some lawyers to be inclined to seek juridical enlightenment in the Dutch- and German-speaking civil law jurisdictions of Europe, whil others were more disposed to study and rely on sources from the English, Commonwealth and North American systems. In the technical development of the current constitutional dispensation both these strains of legal culture were influential. An analysis of the jurisprudence of the Constitution Court shows that the South African constitutional state may be defined as a state in which the Constitution prevails over all law and all actions of the state, where fundamental rights are acknowledged and protected through the independent authority of the judiciary to enforce the Bill of Rights and the Constitution, a separation of powers is maintained, all government action is required to be legally justified, the state has a duty to protect fundamental rights, legal certainty is promoted, democracy and the rule of law are maintained, where a specific set of legal principles apply and an objective normative system of values guides the executive, legislature and the judiciary. |
1. The South African history of the Rule of Law and Rechtsstaatlichkeit
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Not only because of the express constitutional provisions to that effect, but also from the perspective of what the nature of the "new order" was and what the role of the judiciary should be in such an order, the primacy of the Constitution was relied upon from the outset to give content to the idea of the constitutional state (_S v Makwanyane_ 1995 3 SA 391 (CC) para \[7\], and para \[61\] of _Executive Council, Western Cape Legislature v President of the RSA_ 1995 4 SA 877 (CC)). Many a _dictum_ of the Constitutional Court confirms that the constitutional state is characterized by the fact that the Constitution is the supreme law and that all law and state conduct is subject thereto. Thus again in _Law Society of South Africa v Minister of Transport_ 2011 (1) SA 417 CC para \[36\] the Court stated: "Unlike many other written constitutions, our supreme law provides for rigorous judicial scrutiny of statutes which are challenged for the reason that they infringe fundamental rights."
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2.2 Independence of the judiciary
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It \[the right not to be detained without trial\] is the pre-eminent, if not the only, guarantee against arbitrary administrative detention and is indispensable for the upholding of the rule of law and the separation of powers in a constitutional state.
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For a recent discussion of the separation of powers, see Glenister v President of the Republic of South Africa 2009 (1) SA 287 (CC).
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Democracy is often mentioned in connection with the constitutional state and the Rule of Law, e.g. (in _Lesapo v North West Agricultural Bank_ 2000 1 SA 409 (CC) para \[17\]) "respect for the rule of law is crucial for a defensible and sustainable democracy," or more recently in _Offit Enterprises v Coega Development Corporation_ 2011 (1) SA 293 (CC) para \[36\], "\[i\]n order for our rights-based constitutional democracy to thrive, the collection of rights and protections in the Bill of Rights may be seen as being interrelated and interdependent."
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2.8 Rule of Law
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The most concrete alignment by the Constitutional Court of the Rule of Law with the notion of the constitutional state is to be found in a parenthetical suggestion in para \[31\] of the De Lange judgment that the Rule of Law might be "entirely subsumed under the concept of the constitutional state." This suggestion was taken one express step further in _Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council_ 1999 1 SA 374 (CC), in which the Rule of Law was extensively relied upon, and where it was stated in para \[56\]: |
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\[70\] It is when the administration of justice is likely to fall into disrepute and when the foundational values of the Constitution and the rule of law are threatened that this Court’s legitimate role as the protector of those values comes into play. As a society committed to equality we must show to people equal concern and respect.
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Comparing these points to the characteristics that the Court has associated with the South African constitutional state, justifies the view that the Rule of Law has indeed been subsumed under the broader concept, without however discarding its Diceyan roots.
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What must be stressed here is that our Constitution embodies an objective, normative value system; it embodies 'fundamental constitutional value\[s\] for all areas of the law \[which should act\] as a guiding principle and stimulus for the Legislature, Executive and Judiciary'. These fundamental constitutional principles are explicitly set out in the founding provisions of our Constitution and are explicitly given effect to in the Bill of Rights. Such values are human dignity and the achievement of equality.
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4. Conclusion
Despite the fact that South African political practice does not consistently reflect a commitment to the principles and values underlying the rule of law and the Rechtsstaat, the long-term merits of a cogent doctrine developed authoritatively by the Constitutional Court regarding the constitutional state, are obvious: deviation by any organ of the state from the precepts of the doctrine will justify remedial action before a court of law.
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