After Apartheid: Reinventing South Africa?

The Pasts and Future of the Rule of Law in South Africa

In 1996, the constitution of the Republic of South Africa marked the beginning of a new era in South African law (sec. 1(c)). It lists among the founding values of the new republic the “supremacy of the constitution and the rule of law” and, while it entrenches standard liberal rights and freedoms, it also goes well beyond. For example, it gives a right to fair labor practices, to an environment that is not harmful to health, to adequate housing, and to just administrative action (secs. 23(1), 24(a), 26(1), 33(1)). The sections that entrench socioeconomic rights—for example, the right to adequate housing—do make it clear that the state’s duty to fulfill the right is subject to the availability of adequate resources. But it seems clear that the state is obliged to take action, and with some rights—for example, the right to just administrative action—the state was put under an explicit duty to enact national legislation giving effect to that right. The constitution does permit the state to justify limitations of entrenched rights by showing that the limitations are “reasonable and justifiable in an open and democratic society” (sec. 36). But at the same time it sets out a proportionality test for deciding whether a limitation is justified, thus making it clear that judges have the final word on the constitutionality of legislation. Writing in 2000, Heinz Klug drew attention to how surprising this constitutional turn was in the African postcolonial era—the embrace of judicial review in place of the customary postcolonial grant in Africa to government of “nearly untrammeled legislative authority.” He also commented that what he perceived to be the success of South Africa’s constitutional project had been “reinforced” by the “judicious politics” of the Constitutional Court— The Pasts and Future of the Rule of Law in South Africa David Dyzenhaus 234 David Dyzenhaus the apex of the judiciary on constitutional matters. That Court, Klug concluded , had “repeatedly asserted its right to decide central questions of governance , while simultaneously limiting its role to a clearly specified judicial function which pays open respect and deference to the new democratic institutions and politics” (Klug 2000, 178). In this essay, I discuss Klug’s conclusion through an inquiry into the constitutional principle of legality. My discussion in general supports his conclusion. But it also indicates some troubling trends on the part of government. Klug correctly emphasizes that the success of constitutionalism in a postcolonial setting must depend on the judicious politics of the courts in establishing their democratic legitimacy; in other words, it depends on a sense of the project of constitutionalism as primarily about cooperation and collaboration rather than confrontation. But, as they say, it takes two to tango. While the Constitutional Court has continued to play that role, it is not so clear that the government is willing to continue the dance. I indicate in my conclusion that the tensions exposed in this account of the politics of the rule of law in South Africa are not confined to the particular context of a government and a judiciary seeking to manage a transition from an authoritarian past to a democratic future. They illuminate quite general questions about the nature and worth of the rule of law. THE PRINCIPLE OF LEGALITY The commitment in new-order South Africa to the supremacy of the constitution and the rule of law does not, in itself, mark a departure from the past. The apartheid legal order implemented a racist ideology through law but formally was no less committed than the new order to both the supremacy of the constitution and the rule of law. If one ignored the ideology and focused on the formal features of the apartheid legal order, it replicated the constitutional structure of the British legal order (Corder 1984; Forsyth 1985). Apartheid South Africa had a Parliament elected by the enfranchised part of the population—adult whites. The politicians from the political party with the majority of seats formed the government and governed only as long—more than forty years!—as they enjoyed the confidence of the majority of parliamentarians. All government or executive action required a warrant in law.1 An independent judiciary had the task of interpreting the law and so could determine when government officials were acting within the scope of the authority delegated by the legislature, but did not have the authority to invalidate statutes.2 In sum, if...