Ap­ply rule of law in re­view

The Witness - - OPINION - Martin van Staden

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.

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