Rule of Law

Introduction

The rule of law is a foundational value of the South African constitutional order, expressly recognised in section 1(c) of the Constitution as one of the founding provisions of the Republic. The concept requires that all persons and institutions, including the state, are subject to and accountable to the law. The rule of law encompasses the principle of legality, which requires that all exercises of public power must be authorised by law.

Constitutional Foundation

Section 1(c) of the Constitution provides that the Republic of South Africa is founded on the values of “supremacy of the constitution and the rule of law.” This provision establishes the rule of law as a foundational value that informs the interpretation of all constitutional provisions. The Constitutional Court has held that the rule of law is a “fundamental value” that permeates the entire constitutional order.

Supremacy of the Constitution

Section 2 of the Constitution provides that the Constitution is the supreme law of the Republic, and any law or conduct inconsistent with it is invalid. This supremacy clause is the cornerstone of the rule of law in South Africa. It ensures that all law and conduct, including that of Parliament and the executive, must conform to the Constitution.

The Principle of Legality

The principle of legality is an implied constitutional principle derived from the rule of law. It requires that all exercises of public power must be authorised by law and must not be arbitrary. In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC), the Constitutional Court held that the principle of legality is a “foundational principle of constitutional law.” The principle applies to all exercises of public power.

Requirements of Legality

The principle of legality requires that: (1) public power must have a clear legal foundation; (2) the exercise of public power must not be arbitrary; (3) decisions affecting rights must be rational; (4) the exercise of public power must be procedurally fair; and (5) those affected by administrative decisions are entitled to reasons.

Judicial Enforcement

The courts play a central role in enforcing the rule of law. In Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the RSA 2000 (2) SA 674 (CC), the Constitutional Court held that the exercise of all public power is subject to constitutional review. The Court has reviewed and set aside executive conduct for violating the principle of legality, including in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC).

Conclusion

The rule of law is a foundational principle of the South African constitutional order, ensuring that all power is exercised within the boundaries set by the Constitution. The principle of legality, the supremacy clause, and the courts’ enforcement powers give effect to the rule of law, preventing arbitrary government and protecting fundamental rights.