Overlooking the Constitution
THE Constitution exists in the abstract to most people. They know there is a document, somewhere, with a list of principles and values which protects them, but what it says and how it is set out, is not known to most.
This is fine in a constitutional democracy — not everyone needs to be a lawyer, and the courts exist for this specific purpose; to ensure rights are protected. However, it is worrying when the courts and the government more broadly, overlook or appear apathetic towards certain crucial provisions in the Constitution. Here are the three most important provisions of the Constitution that I believe are generally overlooked or disregarded.
THE WEASEL CLAUSE
The state’s favourite provision in the Constitution is the “weasel clause”. Also known as section 36, it provides for the limitation of the rights contained in the Bill of Rights. The government does not necessarily overlook it, it simply reads the parts it likes and ignores the rest.
Section 36 provides that rights — such as the right to property or freedom of expression — may be limited by law. That is as far as some state law advisers and judges are prepared to read. But the provision goes on to say that the limitation must be reasonable and justifiable in an open and democratic society based on the values of freedom, human dignity and equality. The limitation must be reasonable, it must be backed by evidence that proves its desirability and practicability, and a “reasonable person” must be convinced that the limitation is justifiable in light of all the pros and cons. But it must also be justifiable within the context of an open society populated by individuals who have rights.
The provision does not stop there. It provides a list of five criteria (the courts can consider other factors as well) that includes the nature of the right and the limitation, and the relationship between the limitation and its purpose. What is overlooked is the fact that the courts must consider whether or not there is a less restrictive way for the state to achieve the purpose of the limitation, rather than using the limitation itself.
What comes to mind is land reform. The state owns vast swathes of unused land, which it can give to previously disadvantaged people at little cost. But what does it threaten to do? To take land away from productive farmers. Here, the state has less restrictive means at its disposal to achieve its purpose, which is equitable access to land.
FREEDOM OF TRADE, OCCUPATION
Section 21 of the Constitution says that all South Africans may choose freely their trade, occupation or profession. The practice of the trade may be regulated by law.
The state may not prohibit any professions, unless those professions violate the Bill of Rights, such as that of an assassin. This provision means any notion that the government has of reintroducing conscription in the public service, is unconstitutional. You may recall, the state was considering this in 2015.
The Constitutional Court overlooked this section in the infamous Jordan case, where the legality of prostitution in the new SA was decided. The court devoted a few insignificant paragraphs to this crucial section of the Constitution (but focused on the equality provision, which is less relevant to the question of prostitution) and ended up deciding that the criminalisation of prostitution was legal. That judgment is rife with logical and legal errors and it should be reversed.
RULE OF LAW
Section 1(c) of the Constitution provides that the Constitution is the supreme law of South Africa, alongside the principles of the rule of law. According to Judge Tholakele Madala of the Constitutional Court in the Van der Walt case, the rule of law “is a fundamental postulate of our constitutional structure” and “it permeates the entire Constitution”.
What does the rule of law mean? It means South Africans know which laws apply to them, what those laws say, that the law is made by Parliament and not government officials, that the law is enforced fairly and lawfully, and that the enforcers of law do not have wide, life-altering discretion in how they will enforce the law. As the saying goes, the rule of law is the opposite of the rule of man.
— Free Market Foundation.