The manifestation of governance in South Africa is a far cry from what the Constitution with its transformative mandate envisaged. Apartheid was the epitome of regulatory arbitrariness, where petty officials governed the daily lives of millions. The era of constitutionalism was supposed to end this situation.
Section 1 of the Constitution is often ignored as useless filler text, setting out the founding values of our nation. But with its higher amenability threshold — 75 percent in the National Assembly, and not a mere two-thirds majority — its importance is unquestionable and criminally understated. The founding values make two important declarations: South Africa is a republic, and the Constitution and the rule of law are the supreme law of the republic.
A republic is a state in which the people choose representatives to represent their interests, control the executive and make law, within the framework provided by the Constitution. The rule of law is a doctrine that is about an aversion to arbitrariness. The government must conduct itself in a reasonable manner. Its decisions must be rational and controlled by law, and those who enforce the law cannot themselves be the lawmaker and adjudicator of the law. Making someone the judge, jury and executioner in their own case is a flagrant violation of the most important principles of constitutionalism and governance.
With a turbulent history of corruption, maladministration and incompetence, do South Africans really have a reason to trust government with this kind of arbitrary power?
Think about road speed limits. Section 59 of the National Road Traffic Act says the general speed limit in respect of various types of roads "shall be as prescribed", and section 1 of the Act says that "'prescribe' means prescribe by regulation". A minister or their delegate, virtually on a whim, may thus declare, undeclare and redeclare a different speed limit on roads as and when they wish. Parliament is not asked for input or consent. Violating these speed regulations can land one in jail or slap one with a hefty fine.
One can contest speeding fines in court, but leading evidence to "prove" that the metro police officer was, in fact, incorrect in their estimation of one's speed, or that the speed camera was wrong, is indeed an uphill battle. In practice, it is assumed that the driver did violate the limit, without any real criminal trial taking place.
The traffic authorities, thus, are the lawmakers who decide what the speed limit is. They are also the administrators of the law and enforce it on our roads. Finally, they are the adjudicators of the law and guilt is assumed on the part of motorists. They also get to keep the fines they collect — that is, the revenue from fines does not go to the National Revenue Fund.
With a turbulent history of corruption, maladministration and incompetence, do South Africans really have a reason to trust the government with this kind of arbitrary power?
We've all heard the stories of bribery on our roads, and a not-too-small amount of us likely recall participating in this phenomenon at some point in the past. It's rarer for rapists, murderers and robbers to try and bribe the police officers who attempt to arrest them.
Perhaps this is because they fundamentally understand that they are subject to an ancient and time-tested law: don't hurt people and don't take their stuff. Motorists, on the other hand, at a base level, probably appreciate the fact that they are subject to a regime of arbitrariness. The rule of man, not the rule of law.
South Africa's courts and Parliament have been irresponsible in their under-emphasis of our founding values.
Transport yourself a few years into a hypothetical future where the Constitution has been amended to provide for state custodianship of all land. The Constitution will not set out all the details of how this will be done. Instead, it will most likely provide that such custodianship should "be regulated by law".
Parliament would pass an Act dealing with structural affairs, such as how the "Land Administration Commission" is composed, but will delegate to functionaries in the department of rural development and land reform the power to determine, "in the public interest", whether, when and how citizens or firms may acquire a lease on land (whether farmland or land for a development). We have legislation delegating similar regulatory powers to the government on the books today.
In this hypothetical scenario, a lowly government official in the land reform department would be empowered to decide the fate of businesses, subsistence farmers, foreign investors, rural communities and even urban suburbs. Massive companies that own vast tracts of land will likely be fine, as they can afford to "convince" said lowly official to not kick them off the property.
But the poor and, at worst, the political opposition and dissident voices in civil society would not have this luxury. If your use of your land is deemed "ineffective" or "unproductive" according to subjective whim, you will find yourself out of luck.
South Africa's courts and Parliament have been irresponsible in their under-emphasis of our founding values. Thus, they have enabled corruption of the highest order and facilitated the creation of a society that blatantly disrespects the law. Fortunately, it's not too late. If Parliament stops assigning law-making powers to the executive and the courts start striking down anti-republican and anti-rule of law legislation and conduct, South Africa may yet succeed.
Martin van Staden is a legal researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.