Over­look­ing the Con­sti­tu­tion

The Witness - - OPINION - Martin van Staden

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.

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