Transformative Constitutionalism

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Transformative Constitutionalism and the Rule of Law
In 1994 South Africa’s legal order saw a major shift from parliamentary sovereignty to constitutional sovereignty. This meant that parliament had the ‘supreme controlling power to make and enforce decisions (in the form of legislation).’ In other words a court could not declare laws invalid if they had been properly constituted by parliament. Thus the power shifted from the legislature to the Constitution, which under the supremacy clause became the supreme law of the land. As our past has revealed, law is used both to legitimize power and constrain it. The doctrine of the rule of law provides the mechanisms for which one tries to strike a balance between the two. Central to the rule of law is that the law is supreme and no one or body is above the law. Furthermore the adherence of the rule of law doctrine is vital in the achievement and protection of human rights as it aims at holding government accountable through a system of checks and balances facilitated through judicial review. Through the doctrine of parliamentary sovereignty, the apartheid government was able to use the law as a vehicle to implement its discriminatory, oppressive and unjust policies. The rule of law was severally flawed in South Africa under the apartheid regime, however, during the 1970s and 1980s a resurgence of the rule of law was seen, as liberal judges attempted to fight the system. The apartheid government formally followed the rule of law in an attempt to legitimize its policies through acts of parliament. Fuller describes eight characteristics which make law law - by providing law with what he describes as an ‘inner morality.’ On the face of it, section 29(1) within the context of the apartheid era, did conform to Fullers eight characteristics of the Rule of Law as the Act was an act of general application as it referred to ‘certain people’ and did not define people by race, colour or gender. The Act had been publically promulgated and prospective in effect. The conduct that the rules required was possible, relatively stable, and there was congruence between the wording of the laws and their practical application. However, confusion arose as to the meaning of ‘reason to believe’, this ambiguity made adherence problematic as judgments differed in response to this phrase. Thus, according to Fullers characteristics, s29(1) did generally comply with the rule of law. However, Fuller does state that just because a law conforms to these characteristics says nothing about the substance of the law and thus does not mean that these laws are good in nature. However, the inclusion of section 29(6), the ouster clause completely contradicts and infringes the rule of law, as it prevents judicial review, which in turn allows executive power to be unrestrained and uncurbed, resulting in the arbitrary use of power. The judiciary was one of the primary reasons the apartheid system lasted so long, as the judiciary perpetuated and maintained the system of apartheid by legitimizing the legal order of the time. The state of emergency meant that the head of state acting in terms of the Public Safety Act could make regulations which gave enormous power to the police. This is in complete violation of the rule of law as the executive became the legislator. Yet despite this and the increase in security and control, this period saw a revival of the rule of law through a number of cases, as the judiciary despite its limitations, imposed by the apartheid system, was at its strongest and most active. Minister of law and order v Hurley and Another, revealed this reemergence in the rule of law as Rabie CJ for the Appellate Division ruled in favour of Hurley and the court a quo’s decision and condemned the ouster clause set out in s29(6). Since the 1950s numerous attempts by liberal judges saw aspects of the rule of law prevail, first in Minister of the Interior v. Lockhat, whereby the court challenged the validity of a...
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