Po­lit­i­cal elite can’t opt out of the rule of law en­shrined in SA’s con­sti­tu­tion


AS A GEN­ERAL rule, in­ter­na­tional law is South African law. There are, how­ever, a few quirks in diplo­matic and po­lit­i­cal cus­toms be­tween na­tions that should not be tol­er­ated in the Repub­lic of South Africa.

The supreme law in South Africa is the con­sti­tu­tion and the rule of law as pro­vided in sec­tion 1(c) of the con­sti­tu­tion. At the heart of the rule of law is the no­tion that the law will be ap­plied to the po­lit­i­cal class just as it would be ap­plied to or­di­nary peo­ple.

The op­po­site of the rule of law is the rule of man, where the elite ex­empt them­selves from the laws they en­force upon the rest of us.

Whether it is the rule of law or the rule of man that reigns in prac­tice in South Africa is no longer as clear-cut as the con­sti­tu­tion en­vis­aged.

The Min­is­ter of In­ter­na­tional Re­la­tions and Co-op­er­a­tion sparked con­tro­versy re­cently when she granted im­mu­nity to the First Lady of Zim­babwe who is sus­pected of hav­ing as­saulted a South African woman. Sec­tion 7(2) of the Diplo­matic Im­mu­ni­ties and Priv­i­leges Act al­lows the min­is­ter to con­fer im­mu­nity on an in­di­vid­ual if it “is in the in­ter­est of the Repub­lic”.

The First Lady was not here to con­duct any of­fi­cial Zim­bab­wean busi­ness but to visit rel­a­tives who live in Sand­ton.

The rule of law re­quires of­fi­cials and politi­cians not to be granted un­bri­dled dis­cre­tion in the ex­er­cise of their du­ties and for the law to be clear, un­am­bigu­ous, and its ap­pli­ca­tion rea­son­ably pre­dictable.

All else be­ing equal, the peo­ple of South Africa should have ex­pected the First Lady to be de­tained and for a power meant mainly for af­fairs of state not to have been used to ex­cuse crim­i­nal con­duct. South Africans, un­for­tu­nately, have be­come so used to the ab­sence of the rule of law that hardly any­one seems to have been sur­prised by the min­is­ter’s de­ci­sion.

Old guard lawyers would ar­gue that the con­cept of the “pub­lic in­ter­est”, as con­tained in the act, is clear in South African law. Prac­tice, how­ever, usu­ally does not live up to the­ory. Ac­cord­ing to the min­is­ter, the con­fer­ment of im­mu­nity on the First Lady was in the pub­lic in­ter­est.

It makes no dif­fer­ence that the min­is­ter ap­par­ently “ag­o­nised” about the issue and ap­plied her mind. The prob­lem is that it took her mind only and not strict cri­te­ria and le­gal prin­ci­ples, to de­ter­mine the de­ci­sion.

The ju­di­ciary is a strong in­sti­tu­tion be­cause judges have to write lengthy ex­pla­na­tions, based in es­tab­lished le­gal doc­trine, on how they came to their con­clu­sion. For the min­is­ter, it was a case of sim­ply grant­ing im­mu­nity and issuing con­fir­ma­tion thereof.

It should not be an “ag­o­nis­ing” task for an ex­ec­u­tive func­tionary when it comes to en­forc­ing the law. It should, sans un­nec­es­sary polit- ical con­sid­er­a­tions, be quite easy, and Par­lia­ment must fa­cil­i­tate this ease of gov­er­nance by ob­serv­ing the prin­ci­ples of the rule of law in its leg­isla­tive draft­ing.

The Diplo­matic Im­mu­ni­ties and Priv­i­leges Act needs to be changed to re­flect that South Africa’s con­sti­tu­tional dis­pen­sa­tion is founded on the rule of law.

For the min­is­ter to have the dis­cre­tion to grant im­mu­nity at all – no doubt a nec­es­sary fea­ture of a diplo­matic state – cri­te­ria and guid­ing prin­ci­ples must be added to more clearly de­fine the con­text and ap­pro­pri­ate­ness of such a de­ci­sion.

“Pub­lic in­ter­est” is in­suf­fi­cient and in­her­ently al­lows of­fi­cials and politi­cians to le­git­imise oth­er­wise non­sen­si­cal con­duct for po­lit­i­cal rea­sons.

De­ci­sions must also be jus­ti­fied in de­tail.

“Safe­guard­ing South Africa’s re­la­tion­ship with Zim­babwe” is not a good enough ex­pla­na­tion by any stan­dard. The wrath of Zim­babwe, which is, to all in­tents and pur­poses, de­pen­dent on South African em­ploy­ment, en­ergy, and aid, is not some­thing the South African gov­ern­ment should fret about. Gov­ern­ment should be more con­cerned with up­hold­ing the rule of law.

There can no jus­tice if po­lit­i­cal elites – whether for­eign or do­mes­tic – are free to do as they please. Politi­cians as­sault­ing un­armed women dur­ing Women’s Month without con­se­quence does not bode well for the health of our le­gal or­der.

Van Staden is Le­gal Re­searcher at the Free Mar­ket Foundation and Academic Pro­grammes Di­rec­tor of Stu­dents For Lib­erty in South­ern Africa

Zim­babwe’s first lady Grace Mu­gabe was granted im­mu­nity.


Bri­tain’s Prince Charles kisses his bride, Diana, on their wed­ding day on July 29, 1981.

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