The rule of law versus decisionism in the South African constitutional discourse

• Published date: 01 January 2012
• Pages: 272-305
• Date: 01 January 2012
• DOI: 10.10520/EJC135277
• Author: Koos Malan

272

The rule of law versus

decisionism

in the

South African constitutional discourse

Koos M alan

BA Hons (Pret) BIur LLB LLD (Unisa)

Professor in Public Law, University of Pretoria

OPSOMMING

Die heerskappy van die reg teenoor

desisionisme

in die Suid-Afrikaanse

grondwetlike diskoers

Die heerskappy van die reg (rule of law) is een van die grondliggende

waardes van die Suid-Afrikaanse grondwetlike orde. Saam met ’n aantal

ander waardes wat in artikel 1 van die Grondwet van die Republiek van Suid-

Afrika van 1996 vervat is, omskryf dit die eenstemmige waardekompleks

waarop die huidige grondwetlike orde berus. Hierdie bydrae ontleed onlangse

gebeure in die Suid-Afrikaanse grondwetlike diskoers, meer bepaald: (1) die

omstredenheid rondom die Regterlike Dienskommissie se hantering van die

klagtes van die regters van die Konstitusionele Hof teen regterpresident John

Hlophe en (2) die president se verlenging van die ampstermyn van die vorige

hoofregter kragtens ’n ongrondwetlike wetsbepaling. Daar word geargu-

menteer dat die omstredenheid te wyte is aan twee onversoenbare

denkbeelde oor die heerskappy van die reg. Die een is die klassieke konsep

van oppergesag van die reg, wat op die beginsel van legaliteit gegrond is, en

die ander, hier

desisioinisme

genoem, is gegrond op ’n “norm” van die

“beste” besluit in die omstandighede. Hierdie diepliggende verskil spruit

voort uit twee uiteenlopende (regs)kulture. Die een het ’n skriftuurlike

grondslag en is geanker in ’n soewereine

corpus

van reg teenoor die ander

een wat mondeling en teenswoordig-gesentreerd is en wat nie met die idee

van ’n soewere ine

corpus

van reg soos dit eeue lank in veral die Westerse

regskultuur bestaan, bekend is nie.

1Introduction

The South African state is based on the foundational values, set out in

section 1 of the Constitution of the Republic of South Africa of 1996. One

of these values encapsulated in section 1(c) is the rule of law.

During the constitutional negotiations that led to the adoption of the

Constitution in 1996 the rule of law was never an issue: It was generally

agreed that it had to be one of the foundational constitutional values.

There was also no trace of disagreement on what it signified. Or at least,

that was the perception. In this way the rule of law provided one of the

cornerstones of the new constitutional order and of a common South

African nationhood built on the Constitution, more specifically built on

the foundational values of the Constitution.1

1 This consensus was also reflected in a number of

dicta

of the Constitutional

Court. Many of these may be referred to. Compare for example

Fedsure Life

Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council

The rule of law versus decisionism in the South African constitutional discourse

273

However, the South African legal discourse has lately been marked by

controversies surrounding the meaning and implications of the rule of

law and of the emergence of an arguably aberrant notion of the rule of

law in South Africa that are now casting doubt on whether there is in fact

consensus on this.

First, there is the controversy around two decisions of (the majority)

of the Judicial Service Commission (JSC) regarding complaints against the

Judge President of the Western Cape, Judge John Hlophe. The first

decision related to the complaint against JP Hlophe in the

Oasis

matter

(discussed in 4). The second decision was on the dispute between JP

Hlophe and the justices of the Constitutional Court (the

CC/Hlophe

matter), discussed in 3, sparked the most controversy, causing a bitter

public row that divided not only the country’s lawyers but the public in

general. The majority decision of the JSC in

CC/Hlophe

was eventually set

aside by the Supreme Court of Appeal (SCA) in

Freedom Under Law v

Acting Chairperson of the Judicial Service Commission

.2 The most

important interventions within this controversy are:

(a) the reasoning in the majority decision of the JSC and of those who

support the majority decision;

(b) the judgment of the SCA in

Freedom Under Law

mentioned above on

the

CC/Hlophe

matter;

(c) aspects of the argumentation in the heads of arguments submitted to

the JSC on behalf of the Advocates for Transformation (AFT);3

(d) aspects of the arguments advanced in the heads of argument on behalf

of the sixteenth respondent (JP Hlophe) in the mentioned judgment of

the SCA.4

The second controversy revolved around the re-appointment of the

former Chief Justice of South Africa, Mr Justice Sandile Ngcobo, by the

President in accordance with an unconstitutional statute. This decision to

re-appoint the former Chief Justice was set aside by the Constitutional

Court in

Justice Alliance of SA v President of the RSA

.5 The arguments by

the second

amicus curiae

in this matter, the Black Lawyers Association

(BLA),6 are particularly pertinent for the present discussion.

2 1998 (12) BCLR 1458 (CC) parr 56-59;

Affordable Medicines Trust v Minister

of Health

2006 3 SA 247 (CC) parr 48- 49, 108, 109.

2 2011 3 SA 549 (SCA).

3 These heads of argument were signed by Advv Semenya SC, Madima, Pillay

and Maenetje dated 2008-08-29. The heads have been obtained from the

JSC and is on file with the author.

4 The heads of argument were obtained from the Registrar of the Supreme

Court of Appeal and are on file with the author.

5 2011 10 BCLR 1077 (CC).

6 The heads of argument were obtained from the Registrar of Supreme Court

of Appeal and are on file with the author. There were also other decisions

that caused considerable public outrage namely that by the National

Director of Public Prosecutions not to institute a prosecution against the

President of the ruling African National Congress (ANC) and now president

274

2012 De Jure

This discussion will now proceed first with a discussion of the rule of

law in section 2 below. In doing so, the relevant aspects of the

jurisprudence of the Constitutional Court on the rule of law will be

referred to. This is followed by my own concise exposition of the content

and consequences of the rule of law which is informed by the historical

and philosophical tradition of the notion of the rule of law as it has

emerged particularly in the Western legal tradition. This exposition of the

rule of law serves as the normative framework and yardstick for judging

the interventions made in the course of the two mentioned

controversies. The majority decision of the JSC in the

CC/Hlophe

matter

is discussed in section 3 and the JSC decision in the

Oasis

matter in

section 4. In section 5 below the controversy surrounding the renewal of

the term of office of the Chief Justice is dealt with. The discussion of these

controversies reveals the existence of an aberrant view on the rule of law

which is not reconcilable with the rule of law described as

decisionism

discussed in section 6. In 7 decisionism is critiqued and in section 8 it is

argued in conclusion that these two approaches to the rule of law reveal

the existence of two conflicting (legal) cultures that had been concealed

by the common hegemonic Western legal terminology of the

Constitution which, in the period after the constitutional t ransition in

1994, created the deceptive impression of constitutional consensus.

2 The Rule of Law

2 1 Introduction

The Constitutional Court has on numerous occasions dealt with various

aspects of the rule of law, indicating that the rule of law requires rational

decision-making,7 that

stare decisis

is an incidence of the rule of

6 of the country, Jacob Zuma, on various corruption-related charges. The

prosecution took great pains to collect evidence and to prepare for the trial.

There was a

prima facie

case against Zuma. Shabir Shaik, Zuma’s financial

advisor, was convicted on counts that share a similar factual basis as the

case against Zuma. However, while the prosecution prepared for the trial

against Zuma – and notwithstanding the impending prosecution Zuma

gathered increasing support from within the ANC and was eventually

elected president of the organisation in December 2007. Zuma’s rise in the

ANC was accompanied by a tremendous pressure from within the ANC for

prosecution to be dropped. This was precisely what the National Prosecuting

Authority eventually did when it announced its decision on particularly

flimsy grounds. This cleared the way for Zuma to become president of the

Republic of South Africa. The legal soundness of the decision was doubted

and the official opposition, the Democratic Alliance considered legal action

to challenge the decision.

7

Poverty Alleviation Network v President of the RSA

2010 6 BCLR 520 (CC)

parr 65-66;

Affordable Medicines Trust v Minister of Health of RSA

2005 6

BCLR 529 (CC) parr 74-79;

Pharmaceutical Manufacturers Association of SA;

In Re: Ex Parte Application of President of the RSA

2000 3 BCLR 241 (CC)

parr 85, 90;

Bel Porto School Governing Body v Premier of the Province,

Western Cape

20029 BCLR 891 (CC) par 45;

United Democratic Movement v

President of the RSA 1

2000 11 BCLR 1179 (CC) parr 55-76 (more in