Apply rule of law in review
IN light of the recent announcement that Parliament will consider a further 1 850 pre1994 statutes for constitutional review, it is important that the legislature approaches the process conscious of the principles of the rule of law, which is a constitutional imperative found in section 1(c) of the Constitution.
The rule of law means South Africans must be governed by certain, easy to understand and ascertainable legal rules that are created in Parliament, enforced by the executive and adjudicated by the courts.
Apartheid law created a legal culture whereby the executive often makes rules itself, to which Parliament acquiesces, and the judiciary defers to the executive and does not strike down those executive laws.
In fact, as parliamentarian Edgar Brookes wrote with J.B. MacAulay in 1958, one of the characteristic features of apartheid was that officialdom controlled the lives of the people.
One of the descendants of the 20thcentury legal positivist mindset which we are still stuck with, is discretionary power. Officials in the executive government get to make rules and adjudicate disputes that arise from those rules, thus becoming lawmaker, judge, and executioner at the same time.
Many claim discretionary power is crucial in a complex democratic society; however, this is not true. As the information age sets in and technological development continues apace, society has never been simpler than it is today. Society has, however, also never been easier to control oppressively, with the advent of the global village, which makes adhering to the rule of law, the separation of powers and strict checks and balances an imperative.
Today, Parliament should stand up for itself as the sole national legislator as guaranteed by the Constitution, and our courts should be less generous in deferring to government departments.
The legislative review of apartheid statutes should encourage this by eliminating provisions in laws which give executive functionaries the power to make substantive — rather than procedural — decisions, as well as eliminating provisions which allow for the existence of tribunals and adjudication bodies that operate outside of the courts.
Laws such as the Subdivision of Agricultural Land Act should finally be done away with, and the minister of Agriculture should lose the power to dictate to landowners how they may and may not subdivide their own property. This will inevitably make it easier for smallscale farmers to acquire affordable property to farm on.
The Currency and Exchanges Act, similarly, has been a barrier to the transformation of South Africa from an authoritarian state to one founded on human dignity and freedom, as it gives the president virtually unlimited discretion to make regulations regarding any matter which directly or indirectly has a bearing on currency.
Until laws which resemble this pattern are eliminated, it cannot be said that power was ever given to the people.
The Good Law Project’s “Principles of Good Law” report is an apt place to start for Parliament in deciding which laws to scrub and which to modify. Within its pages is a comprehensive but easy to understand guideline to follow, including a checklist that state law advisers can use to ensure the statute in question both adheres to the rule of law and is a good law.
Among the questions they need to ask is whether or not any provision in the statute is vague and whether or not the law has a rational connection to the objective it seeks to address.
It is pleasing to see that the government is starting to take legislative review seriously, having established the parliamentary High Level Panel as well as the upcoming review.
South African law as it stands today is not conducive for growth or prosperity; indeed, at the core of every complaint from industry about why business is bad, lies some regulation, law, or government authority that is in some way hindering growth.
Here’s hoping that the government will not limit itself to considering pre1994 laws, as many of the more than 2 000 national statutes that were passed since apartheid ended are equally detrimental to our freedom and prosperity.