The status of legislation and the realisation of constitutional values in the new constitutional dispensation

JurisdictionSouth Africa
AuthorLourens Du Plessis
Citation(2000) 11 Stell LR 192
Published date30 May 2019
Pages192-214
Date30 May 2019
The status of legislation and the realisation of
constitutional values in the new constitutional
dispensation*
2000 Stell LR 192
Lourens Du Plessis
BJur Et Comm B Phil LLD
Professor, University Of Stellenbosch
1. Introduction
It is trite that South Africa’s Constitution 1 is imbued with “the values that underlie
an open an d democratic society”. 2 These val ues are explicitly spelled out in certain
sections of the constitutional text, for exa mple, the Preamble, the founding
provisions in Chapter 1, the introductory section to the Bill of Rights 3 and the
limitation and i nterpretation clau ses. 4 It furthermore can be argued that the very
entrenchment of righ ts and liberties in the justiciable Bill of Rights plainly evidences
the acceptance of certain key values that inform the o rganisation and functioning of
a “civilised” state. In other sections of the Constitution certain salient, democratic
principles of government, adapted (where necessary) to South African exigencies,
are expressly verbalised, namely i n section 41 that contains the princi ples of co-
operative governm ent and section 195 that lays down the basic values and
principles governing public administration. Noteworthy is also the conspicuously
value-minded manner in which the independence of the judicial authority is
entrenched in section 165.
This article i s concerned with another dimension of the value laden constitutional
text, namely the manner in which so-call ed black letter law serves to put democratic
values to effect. The implementation of ostensibly neutral constitutional
arrangements and the “technicall y appropriate” use of s eemingly colourless
constitutional mechanisms can often do more to bring constitutional values to life
than a rhetoricall y hollow invocation of sweet-sounding value statements. The focus
of this article will be the status of legislation under the Constitution. This appears to
be a predominantly black letter law issue, bu t it is vital in achieving a number of
value objectives preconditioning the fulfilment of certain crucial democratic values.
* Financial assistance rendered by the Centre for Science Development (presently the National Research
Foundation, Division: Social Sciences and Humanities) in support of the research on which this article is
based, is hereby acknowledged. Opinions herein expressed and conclusions arrived at are, however,
those of the author and should not be attributed to the National Research Foundation. I wish to thank my
Colleague Johan de Waal for his helpful comments on an earlier draft of this article.
2000 Stell LR 193
It will also be shown how vigourous (and even rigourous) insistence on the
actualisation of constitutional values in the interpretation of constitutional black
letter provi sions could help determine the most preferable meani ng to be attached
to them. This is indeed a telling example of what some woul d call value acti vating
constitutional interpretation. 5
Botha 6 contends that in the new constitutional dispensation with its supreme
Constitution, the distinction between origi nal and (what he calls) subordi nate
legislation is no longer “watertight” because all legislati on is now in a sense
subordinate legislation (that is, subordi nate to the Constitution) and because section
1 Constitution of the Republic of South Africa, Act 108 of 1996.
2 Cf s 36(1) and 39(1)(a); Cf also s 1.
3 S 7.
4 S 36 and 39 respectively.
5 See Botha Waarde-aktiverende Grondwetuitleg: Vergestalting van die Materiële Regstaat (1996).
6 Statutory Interpretation: An Introduction for Students 3 ed (1998) 9.
(2000) 11 Stell LR 192
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40 of the Constitution makes legislatures at all th ree levels of g overnment original
legislatures. Incidentally, th e author could more profitably have rel ied on section 43
for the latter contenti on. 7 Botha thus agrees with Rautenbach and Malherbe 8 that
the legislative actions of executive bodies (that is, proclamations and regulations)
are the only remaining examples of subordinate legislati on. Botha as well as
Rautenbach and Malherbe are not wrong about this. However, especially Botha
seems to underplay the distinction between original and subordinate legislation in
the new dispensation. Such a distinction, as will app ear from th e discussion, is still
operative and serves a definite purpose. 9
It is (and even before 27 April 1994 was) an over-simplification to draw a
distinction between original and subordi nate legislati on only. 10 The more nu anced
distinctions that Baxter 11 draws b etween supreme (that is, superior or
superordinate) and subordinate legi slation, on the one hand, and bet ween original
and delegated legislation, on the other, tak es one a step further. The first distinction
pertains to the hierarchy and the second to the status of legislati on. These are two
different kinds of distinctions and yet they complement each other. Therefore,
although this article focuses on the status of legislation, the hierarchy of legislation
must also be outlined. 12 The manner in whi ch a constitution hierarchises legislation
is i n itself a value statement as to the vertical division of government power. Thi s
last topic will be raised i n passing whenever it can shed light on the values
informing the determination of the status of legislation at the various levels of
government. 13
2000 Stell LR 194
2. The hierarchy of legislation: super-and subordinate
legislation
Baxter distinguishes only betw een supreme (that is, parl iamentary) and subordinate
legislation. He writes with reference to the previous c onstitutional dispensation in
which the sovereign parliament’s legislation was indeed superior to all other
legislation in the state. Moreover, no supreme constitution topped the hierarchy of
legislation and all acts of parli ament could thus quite appropriately be described as
“supreme legisl ation”. Not onl y is the Constitution in the new dispensation the only
supreme legisl ative text, bu t a more complex scheme of ranking (that is, of super-
and subordinating) legislation at the various levels of government i s also in place.
A hierarchy of legislation presupposes the existence of “higher” and “lower”
legislatures. It manifests the vertical distribution of power on the different levels or
tiers — the 1996 Consti tution talks of “sphe res” 14 — of government, namely first-
tier or national, second-tier or provincial and third-tier or local/municipal
government. Th e national legislature, Parliament, has the highest legi slative power
(a) over the whole of the Republi c of South Africa and (b) in all state affai rs with the
exception of those specifically allocated to other legislatures. 15 In the former era
the four provincial councils were original legislatures 16 which, since 1910, had been
7 Cf par 3 2 2 infra.
8 Constitutional Law 3 ed (1999) 226 n 163.
9 Cf par 3 2 infra.
10 The present author has done this himself in Du Plessis. The Interpretation of Statutes (1986) 5–16.
11 Administrative Law (1984) 74–75, 190–191, 328, 490–492 and 494.
12 Cf par 2 infra.
13 In order to make a full value assessment of the constitutional devolution of power reflected in the
hierarchy of legislation, issues such as co-operative government and federalism as a political expression
of the principle of subsidiarity must be considered. However, these issues do not fall within the scope of
the present investigation.
14 Cf e g s 40.
15 S 44.
16 Cf par 3 1 infra.
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