Published 10 days ago10 min read

The Rule of Law in South African Constitutional Law

Master the rule of law in SA constitutional law: legality doctrine, access to justice, judicial independence, and landmark cases from Fedsure to Nkandla.

The Rule of Law in South African Constitutional Law

Area of Law: Constitutional Law
Reading Time: 10 minutes

🎯 What is the Rule of Law?

The rule of law is a founding value of South Africa's constitutional democracy (Section 1(c)).

Core principle: Everyone — including the government — is subject to the law. No one is above the law.

Historical context:

Apartheid regime = rule by law (oppressive laws legally enforced)
Constitutional democracy = rule of law (law must be just, fair, and applied equally)

📖 Constitutional Foundation

Section 1(c)

"The Republic of South Africa is one, sovereign, democratic state founded on the following values: ... (c) Supremacy of the constitution and the rule of law."

Two components:

Constitutional supremacy (Section 2)
Rule of law

They work together:

Constitution is supreme law
All law must comply with Constitution
No one above the law, including government

📖 What the Rule of Law Requires

1. Legality

Principle: All exercises of public power must be authorized by law.

Key case: Fedsure Life v Greater Johannesburg (1999)

Held:

"The exercise of all public power must comply with the Constitution"
Government cannot act arbitrarily
Every exercise of power must have legal basis

Example:

Official demolishes house without legal authority
Unlawful — no law authorized the demolition
Violates rule of law

2. Legal Certainty

Principle: Laws must be clear, accessible, and predictable.

Why?

People must know what the law requires
Cannot comply with vague or secret laws
Protects against arbitrary enforcement

Requirements:

Laws published in accessible form
Written in reasonably clear language
Not retroactive (generally)
Stable (not changed arbitrarily)

Retroactive Laws

General rule: Laws should not operate retrospectively.

Why? People cannot comply with laws that didn't exist when they acted.

Exception: Retroactivity allowed if:

Does not violate fundamental rights
Necessary for legitimate purpose
Rational

Example: S v Mhlungu (1995) — Criminal procedure amendments could apply retroactively if they benefit the accused (favor rei).

3. Equality Before the Law

Principle: Law applies equally to everyone — rich and poor, powerful and powerless.

Section 9(1):

"Everyone is equal before the law and has the right to equal protection and benefit of the law."

Implications:

Government officials subject to same laws as citizens
No special immunities (except limited constitutional immunities)
Courts treat everyone equally

Example: President can be prosecuted for crimes like any citizen (S v Zuma, 1995).

4. Access to Courts

Principle: Everyone must have access to courts to enforce rights and challenge unlawful action.

Section 34:

"Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court..."

Why essential for rule of law?

Rights meaningless without enforcement
Courts check government power
Provides remedy for violations

Key case: Fose v Minister of Safety and Security (1997)

"Without effective remedies, rights are reduced to mere aspirations"

5. Independent Judiciary

Principle: Courts must be independent from executive and legislature.

Section 165(2):

"The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice."

Why essential?

Courts check government power
Cannot be independent if government controls them
Protects against abuse

📖 The Doctrine of Legality

Constitutional Court Development

Key case: Pharmaceutical Manufacturers v President (2000)

Facts:

President exercised power under Medicines Act
Challenge: Was power exercised lawfully?

Court held: All exercises of public power must be:

Authorized by law
Rational — rational connection between decision and purpose
Procedurally fair (in appropriate circumstances)

This became the "doctrine of legality"

Three Requirements Explained

(1) Authorization

Question: Does law give official this power?

Example:

Municipal manager cancels tender
Check: Does Municipal Systems Act authorize manager to cancel tenders?
If NO → unlawful (lacks authorization)

(2) Rationality

Question: Is there rational connection between decision and purpose for which power given?

Test: Would reasonable person see logical connection?

Not asking: Is decision best? Is it wise?

Asking: Is it rational (not irrational)?

Key case: SARFU v President (1999)

President appointed commission
Rational because connected to constitutional duty to uphold Constitution

(3) Procedural Fairness

Question: Did official follow fair procedure?

When required:

Depends on circumstances
Higher standard where rights affected
Lower/no standard for broad policy

PAJA (Promotion of Administrative Justice Act) gives detailed procedural fairness requirements for administrative action.

📖 Key Cases on Rule of Law

Fedsure v Greater Johannesburg (1999)

The Foundational Case

Facts:

Municipality imposed levies without legal authority
Ratepayers challenged

Held: Unlawful

Chaskalson P:

"The exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law."

Established:

Legality is constitutional principle
All public power subject to it
Not just administrative action — ALL exercises of power

Pharmaceutical Manufacturers v President (2000)

Expanding Legality

Facts:

President made regulations under Medicines Act
Challenge: Process followed?

Court added:

Rationality requirement
Procedural fairness (where appropriate)

Result: Doctrine of legality has three components:

Authorization
Rationality
Procedural fairness (contextual)

Albutt v Centre for the Study of Violence (2010)

Presidential Pardons

Facts:

President granted pardons to certain offenders
Did not consult victims as required

Held: Pardons set aside

Why:

Presidential prerogative still subject to legality
Must be exercised rationally
Must follow fair procedure

Principle: Even prerogative powers subject to rule of law.

Democratic Alliance v President (2013)

Rationality Review

Facts:

President suspended Public Protector's investigation
Question: Rational?

Held: Irrational — no rational basis for suspension

Test applied:

Is there objective rational connection between means and end?
Court doesn't ask if decision wise, only if rational

Principle: Executive decisions must be rationally justifiable.

📖 Rule of Law vs Parliamentary Sovereignty

Historical Tension

Old model (Westminster):

Parliament is supreme
Parliament can make/unmake any law
Courts cannot strike down legislation

New model (SA Constitution):

Constitution is supreme (Section 2)
Parliament subject to Constitution
Courts can strike down unconstitutional laws

How Constitution Resolved This

Section 2:

"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid..."

Result:

Parliament powerful but not sovereign
Constitution higher than Parliament
Courts enforce constitutional limits

Example: Executive Council, Western Cape v President (1995)

Court struck down law abolishing provinces
Parliament cannot violate Constitution even with majority support

📖 Rule of Law and Administrative Justice

PAJA Implements Rule of Law

PAJA (Act 3 of 2000) gives effect to Section 33 (just administrative action).

How it enforces rule of law:

(1) Procedural fairness (s 3):

Notice before adverse action
Right to be heard
Right to reasons

(2) Substantive requirements (s 6):

Must be lawful, reasonable, procedurally fair
Grounds of review if not

(3) Judicial review (s 6-8):

Courts review unlawful administrative action
Can set aside, remit, or substitute

Result: Comprehensive system ensuring government acts lawfully.

📖 Access to Justice and Rule of Law

Section 34 Right

Everyone has right to:

Have dispute resolved in court
Fair public hearing
Effective remedy

Includes:

Access to courts (geographically)
Affordable justice (legal aid)
Fair procedures
Effective remedies

Legal Aid

Why essential?

Poor cannot enforce rights without lawyers
Rule of law meaningless if only rich can access courts

Legal Aid SA:

Provides free legal services to qualifying persons
Criminal and civil matters
Ensures access to justice

Constitutional obligation: State must provide legal aid where required for justice.

📖 International Law Dimension

South Africa and International Rule of Law

Section 233:

"When interpreting legislation, every court must prefer any reasonable interpretation consistent with international law over any alternative interpretation inconsistent with international law."

Why?

Rule of law is universal principle
International law reinforces it
Shows SA commitment to global norms

Example: Glenister v President (2011)

Court considered international anti-corruption treaties
Held SA obliged to maintain independent anti-corruption body

💡 Rule of Law in Practice

Example 1: Marikana Commission

Facts:

Police killed 34 striking miners
President appointed commission of inquiry
Police challenged commission's powers

Court held:

Commission lawfully established
Police must cooperate
Rule of law requires accountability for use of lethal force

Principle: Even police subject to law and independent investigation.

Example 2: Nkandla

Facts:

Public Protector found President misused public funds
President refused to comply
Parliament failed to act

Constitutional Court (EFF v Speaker, 2016):

"The Constitution is the supreme law. All arms of government must abide by it."

Held:

President violated rule of law by ignoring Public Protector
Parliament violated rule of law by not holding President accountable

Remedial action: President ordered to pay back money.

Principle: No one, not even President, above the law.

⚠️ Threats to Rule of Law

1. State Capture

Definition: Private interests control government decisions.

Why threatens rule of law:

Decisions made for private benefit, not public interest
Undermines legality and rationality
Corruption replaces lawful process

Response: Independent investigations, prosecutions, commissions

2. Interference with Judiciary

Examples:

Attacking judges for unpopular decisions
Threatening to remove judges
Undermining court orders

Why threatens rule of law:

Judicial independence essential
Courts enforce rule of law
If courts intimidated, rule of law collapses

Protection: Section 165(3) — no one may interfere with courts

3. Executive Overreach

Examples:

Acting without legal authority
Ignoring court orders
Refusing to implement judgments

Why threatens rule of law:

Executive powerful — must be constrained
If executive ignores law, rule of law collapses

Remedy: Judicial review, parliamentary oversight, public pressure

💡 Exam Strategy

Spot Rule of Law Issues

Look for:

Government acting without legal authority
Arbitrary decisions
Unequal application of law
Denial of access to courts
Failure to comply with court orders
Vague or retroactive laws

IRAC Framework

Issue: Does [action] violate rule of law?

Rule:

Define rule of law (Section 1(c))
Cite Fedsure, Pharmaceutical Manufacturers
Explain legality doctrine (authorization, rationality, fairness)

Application:

Is action authorized by law?
Is it rational?
Was fair procedure followed?
Does it violate legal certainty, equality, or access to justice?

Conclusion:

Summarize findings
State remedy (set aside, review, damages)

Sample Exam Answer

Question: "A municipal manager demolishes informal settlements without notice or court order. Advise residents on rule of law grounds."

Answer:

"The demolition violates the rule of law on multiple grounds:

(1) Legality (Fedsure): The manager's action must be authorized by law. Demolition without court order violates Dlamini v Green Point — evictions require court order under PIE Act. Unlawful — lacks legal authorization.

(2) Procedural fairness (Pharmaceutical Manufacturers): Residents entitled to notice and hearing before eviction. No notice given. Violates procedural fairness requirement of legality.

(3) Access to justice (s 34): By demolishing without court process, manager denied residents right to challenge eviction in court. Violates Section 34.

Remedy: Residents should apply for judicial review to set aside demolition, seek damages for loss, and obtain interdict preventing future unlawful evictions. Court should grant costs against municipality."

🎓 Summary

Rule of law means:

Government subject to law, not above it
All power must be authorized, rational, fair
Laws clear, accessible, predictable
Everyone equal before law
Access to courts guaranteed
Independent judiciary

Doctrine of legality requires:

Legal authorization
Rationality
Procedural fairness

Key cases:

Fedsure — legality is constitutional principle
Pharmaceutical Manufacturers — three requirements
Albutt — even prerogative powers subject to legality
EFF v Speaker — no one above the law

📚 Further Reading

Currie & De Waal, Bill of Rights Handbook (Chapter 2)
Dawood v Minister of Home Affairs (2000) — rule of law and dignity
S v Makwanyane (1995) — rule of law and death penalty
Merafong Demarcation Forum v President (2008) — rationality review
Dyzenhaus, "Legality and Legitimacy in South Africa" (1997)

Enjoyed this piece?

Subscribe to get more case analyses and study tips like this — delivered occasionally, never spam.