Seitenhistorie

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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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3.2 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:

In all democratic societies the state has the duty to establish independent tribunals for the resolution of civil disputes and the prosecution of persons charged with having committed crimes. In a constitutional state that obligation is of fundamental importance and it is clearly recognised as such in our Constitution.

At the same time the Court clearly pointed out in para \[105\] of the judgment how the Rule of Law and _Rechtsstaatlichkeit_ were related:

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".

3.3 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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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. \\

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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In _Matatiele_ _Municipality_ _v President of the RSA_ 2006 (5) SA 47 (CC) para \[110\] the Court expressed itself as follows:

... 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.

3.5 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:           

In a constitutional democratic state, which ours now certainly is, and under the rule of law (to the extent that this principle is not entirely subsumed under the concept of the constitutional state) citizens as well as non-citizens are entitled to rely upon the state for the protection and enforcement of their rights.

The duty and function of the state to acknowledge and protect fundamental rights is considered to be a basic tenet of the constitutional state.  The President of the Constitutional Court, Justice Chaskalson stated (in para \[130\]) of the _Makwanyane_ judgment):

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

3.6 Legal certainty

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

In _Shilubana v Nwamitwa_ 2009 (2) SA 66 (CC), paras \[47\], \[76\] and \[84\] concerning the balancing of customary (tribal) law with the values of the Constitution, legal certainty was in itself referred to as a "value":

... courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.

In _Gcaba v Minister for Safety and Security_ 2010 (1) SA 238 (CC), para \[62\] the Court stated with reference to the binding effect of its judgments:

... precedents must be respected in order to ensure legal certainty and equality before the law. This is essential for the rule of law. Law cannot "rule" unless it is reasonably predictable.

Legal certainty also requires that legal norms should be clear and accessible.  In _De Reuck v Director of Public Prosecutions_ 2004 (1) SA 405 (CC) para\[57\] the Court referred to this as --

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

3.7 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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3.8 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 \[56\]:

In Germany, article 20(3) of the Basic Law confirms the Rechtsstaatsprinzip which is related to the concept of the rule of law.

At this juncture it becomes clear that the focus is upon the notion of the constitutional state rather than of the narrower Diceyan concept.  In Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) the Court found occasion to set out the following doctrinal exposition of its understanding of the Rule of Law:

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\[65\] The doctrine of the rule of law is a fundamental postulate of our constitutional structure.  This is not only explicitly stated in section 1 of the Constitution but it permeates the entire Constitution.  The rule of law has as some of its basic tenets:

1.    the absence of arbitrary power – which encompasses the view that no person in authority enjoys wide unlimited discretionary or arbitrary powers;

2.    equality before the law – which means that every person, whatever his/her station in life is subject to the ordinary law and jurisdiction of the ordinary courts.

3.    the legal protection of certain basic human rights.

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\[66\] The concept of the rule of law has no fixed connotation but its broad sweep and emphasis is on the absence of arbitrary power.  . . . it \[also\] excludes unpredictability. . . .

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\[68\] A further postulate of the rule of law is the guarantee of equality before the law which is designed to advance the value that all persons be subject to equal demands and equal burdens of the law, and not to suffer any greater disability in the substance and application of the law than others.  This to me is one of the basic precepts of the rule of law, so that no individual or group of individuals is to be treated more harshly than another under the law.   . . .

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\[69\] South Africa is a constitutional democracy and as such will not countenance conduct where equality is denied when those who are similarly situated are differently treated.

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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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As is the case with what is referred to by some as the material (as distinguished from the formal) aspects of the _Rechtsstaat_, some judgments have associated specific legal principles with the constitutional state.  Thus, regarding the "principle against self help", the Court stated in para \[17\] of the _Lesapo_ judgment:

In a modern constitutional state like ours, there is no room for legislation which, as in this case, is inimical to a fundamental principle such as that against self help.  This is particularly so when the tendency for aggrieved persons to take the law into their own hands is a constant threat.

Similarly, proportionality, the striking of a balance between various interests, was described in para \[43\] of the judgment in _Carmichele v Minister of Safety and Security_ 2001 (4) SA 938 (CC) with reference to the constitutional state:

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.

3.10 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 \[156\]:

In reaction to our past, the concept and values of the constitutional state, of the 'regstaat', and the constitutional right to equality before the law are deeply foundational to the creation of the 'new order' referred to in the preamble.

The most direct and concrete articulation of this aspect of the constitutional state is to be found in para \[54\] of the _Carmichele_ judgment:

Our Constitution is not merely a formal document regulating public power.  It also embodies, like the German Constitution, an objective, normative value system.  As was stated by the German Federal Constitutional Court:

'The jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive subjective rights for the individual but embody at the same time an objective value system which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle and stimulus for the legislature, executive and judiciary.'

The same is true of our Constitution.  The influence of the fundamental constitutional values on the common law is mandated by section 39(2) of the Constitution.  It is within the matrix of this objective normative value system that the common law must be developed. 

That this view of the constitutional state is being perpetuated, emerges from the following _dictum_ of the Court in _Thint v National Director of Public Prosecutions;  Zuma v National Director of Public Prosecutions_ 2009 (1) SA (CC) 1 para \[375\]:

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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. \\

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.