South Africa's Rule Of Law: Applied Fairly?

The rule of law is one of the founding values of South Africa, with the Constitution stating that the country is founded on the supremacy of the Constitution and the rule of law. This means that the Constitution is the highest law in the country and that no other law may contradict it. The rule of law is also considered to be as supreme as the Constitution itself.

The rule of law is based on seven equally important principles: government action must be based on law; the law must be clear, accessible, and respect human rights; everyone is equal before the law; and courts must be independent and impartial.

South Africa has a mixed legal system that combines Roman Dutch civilian law, English common law, customary law, and religious personal law. The Constitutional Court plays a crucial role in interpreting and upholding the rule of law, as seen in cases such as Masethla v President of the Republic of South Africa, where the court's judgment had a significant impact on the understanding of the rule of law in the country.

The rule of law is a foundational constitutional value that constrains the exercise of public power

The rule of law is a foundational constitutional value in South Africa, with the country's constitution listing the "supremacy of the Constitution and the rule of law" as one of its founding values. This means that the Constitution is the highest law of the land, and no other law may contradict it or enable the government to violate it. The rule of law is applied in South Africa through the following principles:

• Government action must be based on law.
• The law must be clear.
• The law must be accessible.
• Human rights must be respected.
• Everyone is equal before the law.
• Courts must be independent and impartial.
• Laws must be made through clear and transparent procedures by legitimate, democratic bodies.

The precise limits of the constraints set by the rule of law are not always clear, and there is some disagreement among South African judges about the scope and requirements of the rule of law. However, the rule of law is generally understood to require that all public power be exercised within the framework of the law and that the exercise of power be subject to certain constraints, such as legality, rationality, and procedural fairness.

The rule of law is the principle that no person is above the law

The rule of law in South Africa is applied through the following principles:

• Government action must be based on law.
• The law must be clear.
• The law must be accessible.
• Human rights must be respected.
• Everyone is equal before the law.
• Courts must be independent and impartial.
• Laws must be made through clear and transparent procedures by legitimate, democratic bodies.

The South African Constitutional Court interprets and applies the rule of law in a variety of ways, including through formal and substantive interpretations. The Court's rulings on the scope and requirements of the rule of law are not always unanimous, and there is sometimes disagreement among the judges.

In the case of Masethla v President of the Republic of South Africa, the majority of the Court interpreted the rule of law narrowly, while the minority opted for a more inclusive interpretation, incorporating procedural fairness as a constraint on the exercise of public power. This case demonstrates the complexities and nuances involved in applying the rule of law in South Africa.

The South African Constitution is the highest law of the land

The Constitution of the Republic of South Africa, 1996, was approved by the Constitutional Court on 4 December 1996 and took effect on 4 February 1997. It is South Africa's fifth constitution and was drawn up by the Parliament elected in 1994. It was promulgated by President Nelson Mandela, replacing the Interim Constitution of 1993.

The Constitution is made up of a preamble, 14 chapters containing 244 sections, and 8 schedules. Each chapter deals with a particular topic. Chapter 1, for example, enshrines key national principles, defines the country's flag and national anthem, and specifies the official languages and principles of government language policy.

One of the most important aspects of the Constitution is the Bill of Rights, which is contained in Chapter 2. This chapter enumerates the civil, political, economic, social, and cultural human rights of the people of South Africa. These rights include equality before the law, human dignity, life, freedom and security of the person, freedom of thought and religion, freedom of speech and expression, freedom of assembly, the right to vote, and many others.

The Constitution has been amended 18 times since 1997. Any amendments to the Constitution must be passed by at least two-thirds of the members of the National Assembly. If the amendment affects provincial powers or boundaries, or amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it.

The rule of law, as a foundational constitutional value, constrains the exercise of public power. The precise limits of these constraints are not always clear, and there is sometimes disagreement among judges about the scope and requirements of the rule of law. However, the Constitutional Court has interpreted the rule of law as placing important formal and substantive constraints on the exercise of public power.

The South African legal system is a mix of Roman Dutch civilian law, English common law, customary law and religious personal law

The South African legal system is a complex mix of various legal traditions, including Roman Dutch civilian law, English common law, customary law, and religious personal law. This blend of legal traditions reflects the country's diverse historical influences and has shaped the country's unique legal landscape.

Roman Dutch law, which forms one of the foundational elements of the South African legal system, has its origins in the 17th and 18th centuries when it was applied in the Netherlands. It is a variety of European continental civil law and is characterised as an uncodified, scholarship-driven, and judge-made legal system. The Dutch colonial empire, which included South Africa, implemented this legal system in its colonies, leaving a lasting impact even after the English took control of some territories. The Roman Dutch law in South Africa often exists in a hybrid form, mixed with English common law, known as "Anglo-Dutch law".

English common law also plays a significant role in the South African legal landscape. When the English acquired former Dutch colonies like South Africa, they respected the existing Roman Dutch law and incorporated it into their own legal framework. This resulted in a blend of legal traditions that continue to influence the country's legal system today.

Customary law, as recognised by Section 211 of the South African Constitution, refers to the legal systems developed and practised by the indigenous communities of South Africa. It is often tied to ethnicity and changes over time and among different groups. The Constitution requires courts to apply customary law when applicable, subject to the Constitution and any relevant legislation.

Additionally, religious personal law is also recognised in South Africa. The South African Charter of Religious Rights and Freedoms (SACRRF) aims to define the religious freedoms, rights, and responsibilities of citizens. It outlines various freedoms and rights, including the right to gather and observe religious beliefs, freedom of expression regarding religion, and the right to refuse to perform duties that violate religious beliefs. The right to freedom of religion is enshrined in the Constitution, and the country has opted for a secular state that respects religious neutrality.

The rule of law contains seven equally important principles

The rule of law is a political ideal that all people and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers seven equally important principles:

• Accountability: The government as well as private actors are accountable under the law.
• Just Law: The law is clear, publicized, and stable and is applied evenly. It ensures human rights as well as property, contract, and procedural rights.
• Open Government: The processes by which the law is adopted, administered, adjudicated, and enforced are accessible, fair, and efficient.
• Accessible and Impartial Justice: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
• The state monopolizes the use of force in the resolution of disputes.
• Individuals are secure in their persons and property.
• The state is itself bound by law and does not act arbitrarily.

Frequently asked questions