The Rule of Law in South African Constitutional Law

Area of Law: Constitutional Law
Reading Time: 10 minutes

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🎯 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)

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📖 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:

1. Constitutional supremacy (Section 2)
2. Rule of law

They work together:

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

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📖 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

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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)

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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).

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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).

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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"

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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

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📖 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:

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

This became the "doctrine of legality"

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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)

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(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

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(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.

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📖 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

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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:

1. Authorization
2. Rationality
3. Procedural fairness (contextual)

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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.

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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.

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📖 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

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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

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📖 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.

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📖 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

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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.

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📖 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

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💡 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.

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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.

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⚠️ 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

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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

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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

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💡 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

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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)

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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."

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🎓 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:

1. Legal authorization
2. Rationality
3. 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

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📚 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)