South Africa as a "Diceyan Rechtsstaat"

Original contribution by Prof. Francois Venter, Professor Dean of Faculty of Law at the North-West University in Potchefstroom, South Africa.

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German and Dutch academic accounts of Rechtsstaatlichkeit did however begin drawing the attention of South African lawyers since the late 1960's, both because of exposure to the idea during studies abroad and during visits of European scholars to South Africa.
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2. The language of two Constitutions

The constitution-writing process of South Africa, which took place mostly in 2003-2005 reflected the fact that it was characterized by oppositional political negotiation.  This explains why the two phases of the process produced two full constitutions:  the first was adopted at the end of 1993 by the pre-constitutional Parliament, but it required the adoption within two years of a "final" constitution by the new legislature established after the first inclusive democratic general election.  The 1993 Constitution also prescribed, in detail, the parameters within which the "final" constitution was to be adopted.  Since the first constitution was itself drafted within the parameters it set for its successor, it is not surprising that the 1996 Constitution contains very little not already provided for in 1993.

For the purposes of the development of a new South African doctrine regarding constitutionalism, the mention in the preamble of the 1993 Constitution of Rechtsstaat (translated into English as "constitutional state"), and in the foundational section 1 of the 1996 Constitution of the rule of law, has proven to be highly significant.
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3. Judicial merger of English and German doctrine

Right from the outset the Constitutional Court, dispensing constitutional justice for three crucial years under the 1993 Constitution, utilized the mention of Rechtsstaatlichkeit (the "constitutional state") in the preamble to give it concrete meaning.  In this process the Court turned in more than one instance to the established teachings of German constitutional law.  When the rule of law appeared in the 1996 Constitution as a foundational value, the Court went on to extract the meaning and implications of these two historically disconnected, though conceptually related ideas and to incorporate them into the new and pervasive constitutional doctrine of the country. 

An analysis of the jurisprudence of the Constitutional Court shows that ten distinct elements characterize the South African constitutional state:
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1 Supremacy of the Constitution

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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Independence of the judiciary

The Constitution provides expressly in section 165(2) for the independence of the judiciary.  This was stated forcefully in 1996 in _Bernstein v Bester_ 1996 2 SA 751 (CC) para \[51\] with reference to civil procedure:

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Section 22 achieves this by ensuring that the courts and other fora which settle justiciable disputes are independent and impartial. It is a provision fundamental to the upholding of the rule of law, the constitutional state, the "regstaatidee", for it prevents legislatures, at whatever level, from turning themselves by acts of legerdemain into "courts".
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3 Separation of powers

Not surprisingly, the matter of the separation of powers arose early in the consideration of the constitutional position of the judiciary in the new constitutional dispensation.  In 1998 the Court stated:

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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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4 Legal justification of government action

In a constitutional state, government conduct must be legally justifiable, and this was emphasized from the outset by the Constitutional Court.

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. . . far from the foundational values of the rule of law and of accountable government existing in discreet categories, they overlap and reinforce each other.  Openness of government promotes both the rationality that the rule of law requires, and the accountability that multi-party democracy demands.  In our constitutional order, the legitimacy of laws made by Parliament comes not from awe, but from openness.
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5 Duty of the state to protect fundamental rights

In De Lange v Smuts 1998 (3) SA 785 (CC) para 31 the Court emphasized that the state and its organs are obliged to protect fundamental rights, not threaten them:

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The Constitution is premised on the assumption that ours will be a constitutional state founded on the recognition of human rights.
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6 Legal certainty

In more than one instance the Court has pointed out that legal certainty was a central consideration in a constitutional state.

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. . . an important principle of the rule of law, namely that 'rules be stated in a clear and accessible manner'.
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7 Democracy

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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8 Rule of Law

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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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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9 Specific legal principles

The notion of the constitutional state has clearly been established as a comprehensive expression of the ideal nature of the South African state and as an expression of the desirable constitutional attributes of the state.

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Proportionality is consistent with the Bill of Rights, but that exercise must now be carried out in accordance with the 'spirit, purport and objects of the Bill of Rights' and the relevant factors must be weighed in the context of a constitutional state founded on dignity, equality and freedom and in which government has positive duties to promote and uphold such values.
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10 Objective normative system of values

Following the example of German doctrine regarding the "material" elements of _Rechtsstaatlichkeit_, the Constitutional Court has attached to the constitutional state the elevated pursuit of higher constitutional values.  The foundation for this was laid in its inaugural _Makwanyane_ judgment, para \[156\]:

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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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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.