South Africa: a Diceyan Rechtsstaat?

• Author: Venter, Francois
• Position: Symposium: Mixed Jurisdictions

South Africa's transformation to constitutionalism in 1994 saw the addition to a mixed legal system of a supreme constitution that requires all law to conform to its provisions, principles, and values. This new constitutional design was developed for the circumstances and modeled on existing liberal democratic constitutions, the most influential of which were Canadian and German.

Adopted in 1993, the first constitution introduced the notion of the "constitutional state" but being only a transitional document, it provided for the creation of a "final" constitution crafted in conformity with prescribed principles. The final constitution, adopted in 1996, made no mention of the "constitutional state", including instead the expression "rule of law". Since the constitutional principles laid down in 1993 referred to neither the German "Rechtsstaat", nor Diceyan "rule of law", the replacement of the former term by the latter was permissible.

The two constitutional texts did not, however, elaborate on these two terms. It was left to constitutional interpreters, especially the judiciary, to give meaning to these historically disconnected but conceptually related ideas. The result was a completely novel and pervasive constitutional doctrine. The judicial process of merging these notions may be described as "comparison by global assimilation".

La transformation de l'Afrique du Sud vers le constitutionnalisme en 1994 a vu s'ajouter, a un systeme juridique mixte, une constitution supreme exigeant la conformite de toutes lois a ses dispositions, principes et valeurs. Cette nouvelle organisation constitutionnelle a ete concue en fonction du contexte et inspiree des constitutions democratiques liberales existantes, les plus influentes etant celles du Canada et de l'Allemagne.

Adoptee en 1993, la premiere constitution introduit la notion d'<< Etat constitutionnel>>, mais elle n'etait qu'un document de transition, qui prevoyait la creation d'une constitution finale, redigee en conformite avec les principes prescrits. La constitution finale, adoptee en 1996, ne faisait aucune mention de l'<< Etat constitutionnel>>, incluant plutot l'expression << primaute du droit >>. Puisque les principes constitutionnels etablis en 1993 ne font reference ni au << Rechtsstaat >> allemand ni a la << primaute du droit >> de Dicey, le remplacement du premier terme par le second etait acceptable. Les deux textes constitutionnels n'ont cependant pas precise le sens de ces deux termes.

Les interpretes de la constitution, particulierement le judiciaire, durent donner un sens a ces idees conceptuellement liees, mais historiquement eloignees. Le resultat fut une doctrine constitutionnelle completement nouvelle et omnipresente. Le processus judiciaire fusionnant ces concepts peut etre decrit comme une << comparaison par assimilation globale >>.

Introduction I. The Historical Mixedness of South African Constitutional Law II. The Journey to a Rechtsstaat and the Rule of Law A. The Original (Non-South African Roots) B. Pre-constitutional South African Notions C. The South African Constitution: Robert von Mohl or Albert Venn Dicey? III. The Judicial Construction of a Constitutional State A. Supremacy of the Constitution B. Independence of the Judiciary C. Separation of Powers D. Legal Justification of Government Action E. Duty of the State to Protect Fundamental Rights F. Legal Certainty G. Democracy H. Rule of Law I. Specific Legal Principles J. Objective Normative System of Values Conclusion: Comparison by Global Assimilation Introduction

South Africa's transformation to constitutionalism in 1994 was characterized by the addition of a supreme constitution to the already mixed system containing indigenous, common law, and civil law elements. The circumstances allowed for the absorption into the new legal system of elements rooted in both English and European constitutional theory and practice.

This paper sketches the judicial construction of the nature of the constitutional state in South Africa in terms of the rule of law. It does so against the background of an historical outline of the development of the Rechtsstaat and the rule of law at their respective origins, their divergent theoretical meanings in their typical contexts of application, their preconstitutional arrival in South African scholarly discourse, and the manner in which the Constitutional Court of South Africa has treated these notions. What emerges is a picture of a remarkable marriage of continental and common law ideas in a climate of constitutional innovation engendered by the profound transformation of a system historically dominated by British colonial doctrine into one which conforms to contemporary global thinking on constitutionalism.

The underlying thesis is that global constitutional comparison opens up opportunities for reciprocal enrichment of legal notions, such as the rule of law and the Rechtsstaat, that originate from historically divergent sources.

1. The Historical "Mixedness" of South African Constitutional Law

   Any history of the state known since 1910 as South Africa, told from a legal perspective, must take into account many influences including traditional tribal systems, Dutch colonial government, British imperial rule, Boer republicanism, a systematic emancipation from a Dominion of the Crown to a republic, and an unremitting political struggle between racial groups for power and dominance.

   The dominant characteristic of South African constitutional law before 1994 was the English notion of parliamentary sovereignty, which survived the introduction of a republican state in 1961. The original intention of parliamentary sovereignty--which was to ensure popular control over the head of state and the executive--was however distorted in South Africa into a means of ensuring the retention of political power by the white inhabitants of the country. Only white people could obtain the franchise, thus excluding the majority of the population from the electorate.

   The common-law-like South African public law operated in conjunction with a private law regime that was largely premised on civil (Roman Dutch) law foundations. The private law system was developed over more than a century by means of judicial precedent, statutory intervention, and scholarly writing.

   Also existing within this mixed legal context were systems of indigenous laws and mores which had operated within black communities since time immemorial. Key components of these traditional systems were codified and had been employed to serve colonial administrative purposes since the nineteenth century. These mechanisms survived into the twentieth century, serving as tools of public and judicial administration of millions of black South Africans. In the private sphere, black people born into tribal systems in rural areas continued to have parts of their lives governed by traditional norms--either by association or, to a degree, by choice. These norms were to some extent aggregated into legislation for application by the ordinary courts or by traditional authorities.

   Enter the Constitution of the Republic of South Africa of 1993 on 27 April 1994. (1) This novel document introduced a complete charter of fundamental rights and elevated itself to the status of "supreme law". All preexisting law was transitionally and provisionally left intact, but became "subject to this Constitution." (2) When the Constitution, 1993 was replaced by the "final" (and still current) constitution, the preestablished constitutional supremacy and transitional arrangements were retained. (3)

   These developments initiated the emergence of a new legal structure that progressively transformed from a highly mixed legal system to a consolidated, constitutionalized legal system replacing completely the former structure. In 2000, the Constitutional Court stated:

   There are not two systems of law, each dealing with the same subject-matter, each having similar requirements, each operating in its own field with its own highest Court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control. (4)

   Remarkably, the introduction of the new South African legal structure arose not so much from a desire to renovate the former structure as such, but rather from an urge to eradicate those elements of the law that allowed for social and political abuse. The new system was crafted to respond to new circumstances with close attention to existing examples of liberal, democratic constitutions. The most influential of these examples were Canada and Germany. The product of this comparative process is a document which is generally recognized as an expression of globally endorsed constitutional thinking.

2. The Journey to a Rechtsstaat and the Rule of Law

   Constitutional literature is replete with expositions, and many an apology, regarding the doctrinal notions of the Rechtsstaat and the rule of law. The terminological and conceptual origins of the former may be traced back to the writings of Robert von Mohl in the first half of the nineteenth century, and those of the latter to A. V. Dicey at the end of the same century. (5)

   1. The Original (Non-South African) Roots

      In contemporary German constitutional theory, one of the most authoritative and compact explications of Rechtsstaatlichkeit is provided by Klaus Stern. His explication is based on what he calls the "chain of ideas" or constitution-law-human dignity-liberty-justice-legal certainty: "Rechtsstaatlichkeit indicates the exercise of the power of the state on the basis of laws adopted according to the Constitution, with the purpose of guaranteeing freedom, justice and legal certainty." (6) Stern distinguishes the following elements of the Rechtsstaat principle:

      * the constitutional state (Verfassungsstaatlichkeit), meaning the existence of a constitution...