The evolution of the constitutional law principle of the ‘rule of law’ in the South African Constitutional Court

• Author: Maropeng Mpya,Nomthandazo Ntlama
• DOI: 10.10520/EJC-c6bf79e2d
• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n1_a7
• Pages: 114-139

114

ARTICLE

THE EVOLUTION OF THE CONSTITUTIONAL

LAW PRINCIPLE OF THE ‘RULE OF LAW’ IN THE

SOUTH AFRICAN CONSTITUTIONAL COURT

Maropeng Mpya* and Nomthandazo Ntlama**

ABSTRACT

South Africa’s transition to constitutionalism in 1994 signalled a change in the regulation of

state authority and encapsulates the promotion of the fundamental values and principles

of the new dispensation. These principles entail the rebuilding and re-afrmation of public

trust and condence in the functioning of the judiciary. On the other hand, the judiciary,

especially the Constitutional Court that is the focus of this paper, is required to ensure

the promotion of the principles, which include the rule of law, constitutionalism, and the

separation of powers, democracy, and accountability. These are basic principles that have

a direct bearing on the restoration of the credibility of the judiciary in relation to the manner

in which it executes its function within the framework of the new constitutional dispensation.

This role is entrenched in the 1996 Constitution, which afrms the independence of the

judiciary and non-interference in the execution of its functions. Against this background, the

paper examines the judicial development of the constitutional law principle of the ‘rule of law’

in the regulation of state authority by focusing on selected judgments of the Constitutional

Court. Although the principle of the rule of law itself is broad, the objective is to establish

a deepening of the general principles of constitutional law through the process of judicial

review. Our use of the judgments of the Constitutional Court is motivated by its relative

infancy in terms of shaping the principles of the new constitutional order and the concept of

the rule of law, which are the founding values of the new dispensation and which serve as a

mechanism for regulating government conduct. The intention is not to trace the history of the

Court and/or exhaustively review its judgments but to identify a few cases that support the

gist of the argument made in this paper.

* LLB, LLM (Cum laude), (Unisa), Certicate in Public International Law (UP), Certicate from the

Institute for Global Law and Policy (Harvard Law School). Developmental Lecturer, School of Law:

College of Law and Management Studies, UKZN.

** B.Juris, LLB (UFH); Certicate in Comparative Human Rights; LLM: Public Law (US); LLD (Unisa).

Associate Professor of Public Law, School of Law, College of Law and Management Studies, UKZN.

https://doi.org/10.25159/2219-6412/2634

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 114–139

115

Mpya and Ntlama The Evolution of the Constitutional Law

1. INTRODUCTION

The signicant feature in the judicial evolution of the rule of law in South African

constitutional law is the establishment of the Constitutional Court.1 The Court carries

a special mandate as an apex and nal arbiter in all matters, in ensuring the promotion

of the values and principles of the new dispensation.2 It is acknowledged as a ‘central

architecture that embraces the development of the general principles of constitutional

law that have the potential of effecting transformative change in the new South African

dispensation’.3 Solyom similarly notes that the ‘setting up of the Court is a trade mark or

a proof of the democratic character of the country’.4 The Court therefore is charged with

laying the foundation for the development of the constitutionalised jurisprudence of the

rule of law ‘that reects the creation of a just and proper regulation of state authority’.5

The Court was established against the background of restoring the integrity and

legitimacy of the judiciary.6 The undertaking was born out of South Africa’s divisive

history and the atrocities of apartheid rule, in which the sovereignty of Parliament in the

regulation of state authority was entrenched. The system of Parliamentary sovereignty

had a negative impact on the functioning of the courts, which affected the meaningful

and substantive conception of the development of the general principles of constitutional

law such as the rule of law. Venter7 contends that the ‘dominant characteristic of South

African constitutional law before 1994 was the notion of parliamentary sovereignty

which was designed to ensure popular control over the head of state and executive and

the retention of political power by the white inhabitants of the country’.8 Parliamentary

sovereignty not only compromised the integrity and credibility of the judiciary in the

1 Section 167 of the Constitution of the Republic of South Africa 1996, hereinafter referred to as the

‘Constitution’. The Court was ofcially opened on 14 February 1995. See Pious Langa and Edwin

Cameron, ‘The Constitutional Court and the Supreme Court of Appeal after 1994’ (2010) Advocate

28–32. The former justices of the Constitutional Court point out that the ‘result of the multi-party

negotiated settlement was the establishment of the Constitutional Court being an entirely new addition

to the existing judicial structure, one that would be broadly acceptable to a restive and sceptical public

that was emerging from deep divisions, conict and gross human rights violations’ at 29.

2 id 167.

3 Rait Maruste, ‘The role of the Constitutional Court in democratic society’ (2007) XIII Juridica

International 8–13 at 8.

4 Laszlo Solyom, ‘The role of the Constitutional Courts in the transition to democracy with special

reference to Hungary’ (2003) 18 (1) International Sociology 133–161 at 133.

5 Hugh Corder, ‘A century worth celebrating’ (2010) 127 (4) SALJ 571–580. He characterises the role

of the Court as the ‘pursuance of an implicit “nation-making” agenda as a guiding philosophy, with

the emphasis on inclusiveness, reconciliation, compromise, redress, basic rights and the delivery of

socio-economic rights so explicitly made in the Constitution [which are founded on the values of the

new dispensation] especially, ‘accountability, responsiveness and openness’ at 578–579.

6 S 166 of the Constitution of the Republic South Africa, 1996 on the structure of the judicial system in

South Africa.

7 Francois Venter, ‘South Africa: a diceyan rechtsstaat?’ (2012) 57 (4) McGill Law Journal-Revue De

Droitde McGill 722–747 at 723.

8 ibid.