McGill Law Journal ~ Revue de droit de McGill
SOUTH AFRICA: A DICEYAN RECHTSSTAAT?
Francois Venter*
South Africas transformation to constitu-
tionalism in 1994 saw the addition to a mixed
legal system of a supreme constitution that re-
quires all law to conform to its provisions, prin-
ciples, and values. This new constitutional de-
sign was developed for the circumstances and
modeled on existing liberal democratic constitu-
tions, the most influential of which were Cana-
dian and German.
Adopted in 1993, the first constitution in-
troduced the notion of the constitutional state
but being only a transitional document, it pro-
vided 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, includ-
ing 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, how-
ever, elaborate on these two terms. It was left to
constitutional interpreters, especially the judi-
ciary, to give meaning to these historically dis-
connected 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 lAfrique du Sud
vers le constitutionnalisme en 1994 a vu
sajouter, un systme juridique mixte, une
constitution suprme exigeant la conformit de
toutes lois ses dispositions, principes et va-
leurs. Cette nouvelle organisation constitution-
nelle a t conue en fonction du contexte et
inspire des constitutions dmocratiques lib-
rales existantes, les plus influentes tant celles
du Canada et de lAllemagne.
Adopte en 1993, la premire constitution
introduit la notion d tat constitutionnel ,
mais elle ntait quun document de transition,
qui prvoyait la cration dune constitution fi-
nale, rdige en conformit avec les principes
prescrits. La constitution finale, adopte en
1996, ne faisait aucune mention de l tat
constitutionnel , incluant plutt lexpression
primaut du droit . Puisque les principes
constitutionnels tablis en 1993 ne font rf-
rence ni au Rechtsstaat allemand ni la
primaut du droit de Dicey, le remplacement
du premier terme par le second tait acceptable.
Les deux textes constitutionnels nont ce-
pendant pas prcis le sens de ces deux termes.
Les interprtes de la constitution, particulire-
ment le judiciaire, durent donner un sens ces
ides conceptuellement lies, mais historique-
ment loignes. Le rsultat fut une doctrine
constitutionnelle compltement nouvelle et om-
niprsente. Le processus judiciaire fusionnant
ces concepts peut tre dcrit comme une com-
paraison par assimilation globale .
* Professor of Law and Dean of the Faculty of Law of the North-West University,
Potchefstroom Campus, South Africa. This is an edited version of a paper delivered in
Jerusalem on 22 June 2011 during the Third International Congress of the World Soci-
ety of Mixed Jurisdiction Jurists held at the Hebrew University of Jerusalem.
Citation: (2012) 57:4 McGill LJ 721 ~ Rfrence : (2012) 57 : 4 RD McGill 721
Francois Venter 2012
722 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
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
723
723
725
725
728
733
735
736
737
737
738
739
739
740
741
742
743
744
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 723
Introduction
South Africas transformation to constitutionalism in 1994 was char-
acterized 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 el-
ements rooted in both English and European constitutional theory and
practice.
This paper sketches the judicial construction of the nature of the con-
stitutional 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 pre-
constitutional arrival in South African scholarly discourse, and the man-
ner in which the Constitutional Court of South Africa has treated these
notions. What emerges is a picture of a remarkable marriage of continen-
tal and common law ideas in a climate of constitutional innovation engen-
dered 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.
I. 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 tradi-
tional 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 sovereigntywhich was to ensure popular control over the
head of state and the executivewas however distorted in South Africa
into a means of ensuring the retention of political power by the white in-
habitants 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 conjunc-
tion with a private law regime that was largely premised on civil (Roman-
724 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
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 indige-
nous laws and mores which had operated within black communities since
time immemorial. Key components of these traditional systems were codi-
fied and had been employed to serve colonial administrative purposes
since the nineteenth century. These mechanisms survived into the twen-
tieth century, serving as tools of public and judicial administration of mil-
lions of black South Africans. In the private sphere, black people born into
tribal systems in rural areas continued to have parts of their lives gov-
erned by traditional normseither 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 fun-
damental rights and elevated itself to the status of supreme law. All
preexisting law was transitionally and provisionally left intact, but be-
came subject to this Constitution.2 When the Constitution, 1993 was re-
placed 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 con-
solidated, 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 sub-
ject-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
1 Constitution of the Republic of South Africa, 1993, No 200 of 1993, s 4(1): This Consti-
tution shall be the supreme law of the Republic and any law or act inconsistent with its
provisions shall, unless otherwise provided expressly or by necessary implication in this
Constitution, be of no force and effect to the extent of the inconsistency s 4(1) [Constitu-
tion, 1993].
2 Ibid s 229: Subject to this Constitution, all laws which immediately before the com-
mencement of this Constitution were in force in any area which forms part of the na-
tional territory, shall continue in force in such area, subject to any repeal or amendment
of such laws by a competent authority.
3 Constitution of the Republic of South Africa, 1996, No 108 of 1996, s 2, Schedule 6 [Con-
stitution, 1996].
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 725
all law, including the common law, derives its force from the Consti-
tution 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 al-
lowed for social and political abuse. The new system was crafted to re-
spond 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 en-
dorsed constitutional thinking.
II. 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 nine-
teenth century, and those of the latter to A. V. Dicey at the end of the
same century.5
A. The Original (Non-South African) Roots
In contemporary German constitutional theory, one of the most au-
thoritative 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: Rechts-
staatlichkeit indicates the exercise of the power of the state on the basis of
laws adopted according to the Constitution, with the purpose of guaran-
4 Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of
the Republic of South Africa, [2000] 2 S Afr LR 674 at para 44, [2000] 3 B Const LR 241
(S Afr Const Ct) [Pharmaceutical].
5 Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland [The State Law of
Germany], vol 1, 2d ed (Munich: CH Becksche Verlagsbuchhandlung, 1984) at 769
[Stern, Das Staatsrecht]. C.f. FA Hayek, The Constitution of Liberty (London, UK:
Routledge, 1960) at 172-73 (noting that some credit Immanuel Kant for popularising
the term, but Kant never actually employed the expression in his writings). AV Dicey,
Lectures Introductory to the Study of the Law of the Constitution, 1st ed (London, UK:
Macmillan, 1885) (Citations in this article refer to the books tenth edition (AV Dicey,
Introduction to the Study of the Law of the Constitution, 10th ed (London, UK: Macmil-
lan, 1965) [Dicey, 10th ed])).
726 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
teeing freedom, justice and legal certainty.6 Stern distinguishes the fol-
lowing elements of the Rechtsstaat principle:
the constitutional state (Verfassungsstaatlichkeit), meaning the ex-
istence of a constitution as the foundational juridical order and
supreme legal norm of the state;
human dignity, liberty and equality, indicating the legal regula-
tion of the relationship between citizens and the state by means of
fundamental rights, whereby certain personal and political liber-
ties as well as equality before the law are guaranteed;
the separation and control of government authority, meaning the
separation and reciprocal limitation of the authority and functions
of the state;
legality (Rechtsgebundenheit), indicating that law provides the
foundation and limits for all actions of the state, referring specifi-
cally to the law of the constitution as the foundation for legislative
acts and legislation as the foundation for the administrative and
judiciary branches;
judicial protection, meaning the guarantee of extensive and effec-
tive legal protection by independent courts following legislatively
prescribed procedures, against, for example, actions of state au-
thorities (including the legislature);
a system of reparation, meaning the legal responsibility of the or-
gans of the state towards citizens, including for damages caused
by the state and for violations of rights by the state; and
prohibition of excessive use of government authority, indicating the
appropriateness, necessity, and proportionality of state actions.7
6 Stern, Das Staatsrecht, supra note 5 at 781 [translated by author] (Rechtsstaatlichkeit
bedeutet, da die Ausbung staatlicher Macht nur auf der Grundlage der Verfassung
und von formell und materiell verfassungsmig erlassenen Gesetzen mit dem Ziel der
Gewhrleistung von Menschenwrde, Freiheit, Gerechtigkeit und Rechtssicherheit
zulssig ist).
7 Ibid at 784. See generally the detailed analysis of each of these elements (ibid at 787-
867). This, and any similar list of components or attributes of the Rechtsstaat, is not to
be understood as a numerus clausus: see e.g. the list of elements that has been extract-
ed from the decisions of Germanys Bundesverfassungsgericht by Karl Doehring (Das
Staatsrecht der Bundesrepublik Deutschland: Unter besonderer Bercksichtigung der
Rechtsvergleichung und des Vlkerrechts [The Constitutional Law of the Federal Re-
public of Germany: With Special Reference to Comparative Law and International
Law], 3d ed (Frankfurt: Alfred Metzner, 1984) at 235, n 10) and the twenty-five norms
serving as elements of the Rechtsstaat dealt with by Katharina Sobota (Das Prinzip
Rechtsstaat: Verfassungs- und Verwaltungsrechtliche Aspekte [The Principle of
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 727
The rule of law, on the other hand, was canonized in English law
by Dicey in his seminal work Introduction to the Study of the Constitution,
first published in 1885.8 Diceys rather parochial construction took par-
liamentary sovereignty as a point of departure:
[English political institutions are characterised by] the omnipotence
or undisputed supremacy throughout the whole country of the cen-
tral government. This authority of the state or the nation was during
the earlier periods of our history represented by the power of the
Crown. … This royal supremacy has now passed into that sovereign-
ty of Parliament which has formed the main subject of the foregoing
chapters.9
From this principle, he went on to set out his three understandings of the
rule of law:
We mean, in the first place, that no man is punishable or can be law-
fully made to suffer in body or goods except for a distinct breach of
law established in the ordinary legal manner before the ordinary
courts of the land. In this sense the rule of law is contrasted with
every system of government based on the exercise by persons in au-
thority of wide, arbitrary, or discretionary powers of constraint. …10
We mean in the second place, when we speak of the rule of law as a
characteristic of our country, not only that with us no man is above
the law, but (what is a different thing) that here every man, whatev-
er be his rank or condition, is subject to the ordinary law of the
realm and amenable to the jurisdiction of the ordinary tribunals. …11
There remains yet a third and a different sense in which the rule of
law or the predominance of the legal spirit may be described as a
special attribute of English institutions. We may say that the consti-
tution is pervaded by the rule of law on the ground that the general
principles of the constitution (as for example the right to personal
liberty, or the right of public meeting) are with us the result of judi-
cial decisions determining the rights of private persons in particular
cases brought before the courts; whereas under many foreign consti-
tutions the security (such as it is) given to the rights of individuals
results, or appears to result, from the general principles of the con-
stitution.12
Historical analyses of the rule of law can hardly ignore the fact that Dicey
was the first to cast the essential English constitutional notions of the late
Rechsstaat: Constitutional and Administrative Law Aspects] (Tbingen: Mohr Siebeck,
1997) at 27-253), which she subdivides into 142 characteristics (ibid at 254-57).
8 Dicey, 10th ed, supra note 6.
9 Ibid at 183 [footnotes omitted].
10 Ibid at 188.
11 Ibid at 193 [footnotes omitted].
12 Ibid at 195-96 [footnotes omitted].
728 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
nineteenth and early twentieth centuries in a form approaching that of an
overarching dogma. Despite the conceptual appeal of the phrase rule of
law, however, the width and vagueness of Diceys characterization com-
bined with his conscious limitation of its relevance to English law ham-
pered its development into a universal doctrine.
B. Preconstitutional South African Notions
Because South Africa was created from British colonies, and continued
to be a British dominion after 1910, South African public law hardly con-
tained any elements drawn from the civil law systems of continental Eu-
rope. Further, parliamentary sovereignty, the dominant characteristic of
South African constitutional law, was essentially incompatible with no-
tions such as the Rechtsstaat.
Beginning in the late 1960s, South African lawyers began to pay at-
tention to German and Dutch academic accounts of Rechtsstaatlichkeit
both because of their exposure to the idea during studies abroad and be-
cause of visits by European scholars to South Africa during that period.13
Despite this exchange of ideas, the notion remained a mere theoretical
construct in South Africa due to its incompatibility with established Brit-
ish colonial constitutional notions, such as the absence of a supreme, writ-
ten constitution.
One common doctrinal element in both the rule of law and the
Rechtsstaat is the recognition and protection of human rights. Preconsti-
tutional South Africa had an international reputation as a major human
rights offender.14 Furthermore, in the public law of that country there was
13 See e.g. HJ van Eikema Hommes, De materile rechtsstaatsidee [The Material
Rechtsstaat] [1978] Journal of South African Law 42; DH van Wyk, Suid-Afrika en die
regstaatidee [South Africa and the Notion of a Rechtsstaat] [1980] Journal of South Af-
rican Law 152; Klaus Stern, A Society Based on the Rule of Law and Social Justice:
Constitutional Model of the Federal Republic of Germany [1981] Journal of South Afri-
can Law 241 (this contribution actually dealt with the Rechtsstaat and not the rule of
law); VG Hiemstra, Suid-Afrika terug in die wreld langs die weg van die regstaatbe-
ginsel [South Africa Back into the World Along the Road of a Bill of Rights] [1985] 1
Journal of South African Law 1; Loammi C Blaau The Rechtsstaat Idea Compared
with the Rule of Law as a Paradigm for Protecting Rights (1990) 107:1 SALJ 76. The
concept also began appearing in some doctoral theses: see e.g. Pieter J van R Henning,
Oor die begrip diskresie in die administratiefreg [On the Notion of Discretion in Admin-
istrative Law] (LLD Thesis, University of South Africa, 1967) [unpublished]; Dawid H
van Wyk, Persoonlike Status in die Suid-Afrikaanse Publiekreg: n staats- en admin-
istratiefregtelike studie [Personal Status in South African Public Law: A Constitutional
and Administrative Law Study] (LLD thesis, University of South Africa, 1979) [un-
published].
14 See e.g. International Convention on the Suppression and Punishment of the Crime of
Apartheid, 30 November 1973, 1015 UNTS 243, 13 ILM 50.
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 729
an absence of any positive recognition of human rights. This created a sit-
uation in which the doctrine of human rights was reduced to either an in-
strument of oppositional social and political commentary and mobiliza-
tion, or an abstract academic and philosophical theme with undertones of
wishful thinking about a better public law future.15
The radical constitutional transition occurring in the early 1990s, de-
spite its sudden and unexpected arrival, did not emerge into a vacuum,
however; leading lawyers, both among the members of the judiciary and
the academe, were suitably prepared by preconstitutional writings and
academic activity to undertake the task of remodelling the legal system
around a dominant bill of rights. Some examples from the work of legal
scholars and from anti-apartheid political activity demonstrate how the
ground was prepared for the introduction of the new approach.
In his 1971 inaugural address as a professor of law at the University
of Witwatersrand, Johannesburg, John Dugard pointed out the strong
positivist tendencies in the judgments of South African courts in cases
dealing with the enforcement of security legislation.16 He argued that the
legal values and principles embedded in the traditional foundations of
Roman-Dutch law (i.e. the juridical postulates that form part of South Af-
ricas legal heritage and are designed to foster the basic political and legal
ideal of modern Western society) were not different from the entrenched
liberties and rights found in the American Constitution.17
Also in 1971, Anthony Mathews, highly critical of the direction in
which security considerations were driving South African law, developed
a redefinition of the rule of law.18 In later elaborating upon his description
15 See e.g. B Beinart, The Rule of Law [1962] Acta Jur (Cape Town) 99.
16 John Dugard, The Judicial Process, Positivism and Civil Liberty (1971) 88:2 SALJ
181.
17 Ibid at 197.
18 Chapter 5 of his book, Law, Order and Liberty in South Africa, sets out the following
definition:
[T]he Rule of Law, as a constitutional doctrine governing the state/subject re-
lation, consists of the following distinct but interrelated principles:
1. The acts of the government towards the subject, particularly
those affecting his right to freedoms of the person, speech and associa-
tion, and the right of choosing representatives to make the laws, shall be
in accordance with previously established general rules having a reason-
ably specific reference;
2. The rights enumerated in paragraph 1, being essential to the op-
eration of law as an order designed to regulate human affairs according
to reason, shall be maintained as part of the legal system but subject to
(a) well-recognized limits upon their exercise,
730 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of the rule of law, Mathews explored different theories of the rule of law
with reference to various scholars such as Raz, Fuller, and Finnis.19 An
interesting element of this exploration was Mathewss association of the
material justice approach with, inter alia, the Rechtsstaat concept.20
The endeavour of investigating the merits of human rights for South
African law in the 1970s was not limited to liberal English-speaking
scholars. Johan van der Vyver produced a two-volume thesis in Afrikaans
in 1974 on the juridical meaning of the doctrine of human rights.21 The
following year saw the publication of his book (also in Afrikaans) on the
protection of human rights in South Africa22 and, in 1976, he published
his Seven Lectures on Human Rights.23 Ignus Rautenbach wrote his doc-
toral thesis in a similar vein.24
Human rights were also the subject of conference papers delivered at a
symposium organized by the University of Pretoria in 1986 on a bill of
rights for South Africa, the transcripts for which were published in 1988.25
Many of the participants in this conference contributed to the countrys
limitations consequential upon the need to reconcile them with one
another, and
(b)
(c) qualification of such rights in times of exceptional crisis;
3. The interpretation and application of the general rules referred
to in paragraph 1, and adjudication upon the necessary limitations upon
the rights referred to in paragraph 2, shall be under the control or super-
vision of an independent judicial body with effective remedial powers and
acting according to fair trial procedures (or the requirements of proce-
dural due process) ((Berkeley: University of California Press, 1972) at 31
[footnotes omitted]).
19 Anthony S Mathews, Freedom, State Security and the Rule of Law: Dilemmas of the
Apartheid Society (London, UK: Sweet & Maxwell, 1988) ch 2, 3.
20 Ibid, ch 3. The Constitutional Court made mention of Mathewss work in De Lange v.
Smuts NO and Others ([1998] 3 S Afr LR 785 at paras 46-47, [1998] 7 B Const LR 779
(S Afr Const Ct) [De Lange]).
21 Johan David Van der Vyver, Die juridiese sin van die leerstuk van menseregte [The Ju-
ridical Meaning of the Human Rights Doctrine] (LLD Thesis, University of Pretoria,
1973 [unpublished]).
22 Johan David Van der Vyver, Die beskerming van menseregte in Suid-Afrika [The Pro-
tection of Human Rights in South Africa] (Cape Town: Juta, 1975).
23 Johan David Van der Vyver, Seven Lectures on Human Rights (Cape Town: Juta, 1976).
24 Subsequently published as Ignus Rautenbach, Die begrip menseregte as sistema-
tiserende faktor in die Suid-Afrikaanse publiekreg [The Concept of Human Rights as a
Systematizing Factor in South African Public Law] [1976] Journal of South African
Law 168.
25 Johann van der Westhuizen & Henning Viljoen, eds, A Bill of Rights for South Africa:
Proceedings of Symposium held at the University of Pretoria on 1 and 2 May 1986 (Dur-
ban: Butterworths, 1988).
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 731
transformation to constitutionalism in the next decade. In one of these
papers, Ignus Rautenbach accurately predicted that [h]uman rights
should and will most probably feature in some or other form in a new ne-
gotiated South African constitutional dispensation.26
The doctrine of human rights was also used as a cudgel by activists in
the propaganda war against discrimination and injustice in South African
society. This form of human rights engagement manifested itself as a bat-
tle cry against oppression and for mobilisation to combat injustice. This
approach was driven primarily by liberation movements striving for in-
ternational support against apartheid and contained strong elements of
socialist thinking. The most prominent example in this category was the
Freedom Charter of 1955, which contained emotive headings such as The
People Shall Govern!, The People Shall Share in the Countrys Wealth!,
and There Shall be Work and Security!. The Freedom Charter called for,
inter alia, inclusive democracy, equality among all national groups,
freedom of speech, association, religion, and movement, and the right to
privacy in the home. It also stated that the national wealth of our coun-
try … shall be restored to the people, that the mineral wealth beneath
the soil, the banks and monopoly industry shall be transferred to the
ownership of the people as a whole, and that the state shall help the
peasants with implements, seed, tractors and dams to save the soil and
assist the tillers.27
In 1991, the South African Law Commission (the Commission), a gov-
ernment-funded institution, published the Interim Report on Group and
Human Rights. Apart from producing a full draft-text for a South African
bill of rights, the Commission presented an implementation plan, which
included the purging of any legislation inconsistent with a future bill of
rights, the launching of an educational program, and the legitimisation,
by referendum, of a new constitution which includes the bill of rights.28
All of these intellectual and political manoeuvres had little effect on
the reality of pre-1994 South African constitutional law. Before the Con-
stitution, 1993 came into operation, supporters of the liberation move-
ments were not in a position to implement or practice constitutionalism,
as they were not in government at the time. Moreover, the pre-
26 IM Rautenbach, Menseregte-aktes: n vergelykende oorsig [Bills of Rights: A Compar-
ative Survey] in van der Westhuizen & Henning, supra note 25, 35 at 35 (from the Eng-
lish summary).
27 “Freedom Charter” (Document produced by/at the Congress of the Peoples, Kliptown,
South Africa, 25-26 June 1955), online: Gandhi-Luthuli Documentation Centre
28 South African Law Commission, Summary of Interim Report on Group and Human
Rights (Pretoria: South African Law Commission, 1991) at 38, 41 ff.
732 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
constitutional South African governments all operated with constitu-
tions bearing a status hardly above that of ordinary parliamentary stat-
utes. Apartheid constitutionalism was therefore highly formal with little
principled substance. It was based upon a highly positivist application of
notions such as parliamentary sovereignty sourced from the common law
and often perverted to serve sectional political purposes.
The ongoing influence of indigenous tribal law also had, and still has,
to be considered. Indigenous law cannot justifiably be seen as an obstacle
in the way of a human-rights-based legal system. At the same time, it is
undeniable that traditional laws and institutions are embedded in a world
view that has completely different origins and foundations from those that
gave rise to the doctrine of human rights. Furthermore, colonial interven-
tions, apartheid, and modernization introduced cultural distortions of tra-
ditional conceptions that were not conducive to the development of an in-
dividualistic, rights-based legal culture.29
The purpose of the new constitution was primarily to remedy the ills
of the foregoing constitutional and political system and replace it with one
that would ensure the emergence of a just society. The first paragraph of
the preamble to the Constitution, 1993 stated that:
WHEREAS there is a need to create a new order in which all South
Africans will be entitled to a common South African citizenship in a
sovereign and democratic constitutional state in which there is
equality between men and women and people of all races so that all
citizens shall be able to enjoy and exercise their fundamental rights
and freedoms.30
The new constitutional arrangements required, however, that South Afri-
can lawyers undergo a profound shift from a culture of Romanistic princi-
ple adapted, and sometimes contaminated, by statutory predominance
and binding judicial interpretation, to a culture that places fundamental
rights and constitutional values and principles over all law and legal doc-
trine.31 When the new constitution came into effect on 27 April 1994, it
had a very obvious transformative effect on South African public law.
What was initially less obvious was the impact that it would have on all
other parts of the countrys legal system. An early, graphic demonstration
29 TW Bennett, Human Rights and African Customary Law: Under the South African
Constitution (Cape Town: Juta, 1995) at 1-10.
30 Constitution, 1993, supra note 1 [emphasis added].
31 This shift was achieved by the simple mechanism of the declaration in section 4 of the
Constitution, 1993 (supra note 1), continued in section 2 of the current Constitution,
1996 (supra note 3), that the Constitution is the supreme law of the Republic.
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 733
of this effect is evident in the changes that the constitution brought to the
law of property.32
C. The South African Constitution: Robert von Mohl or Albert Venn Dicey?
The human-rights-oriented supreme constitution that was adopted in
1993 not only required all segments of South African society to revise
their perceptions and understanding of the law as it applied to them, but
it also sought to bring the divergent approaches to life characteristic of a
pluralistic society under the discipline of one overarching set of en-
trenched legal norms. If one considers the course of the negotiation pro-
cess leading to the introduction of these profound changes, it is remarka-
ble that the potential impacts of the constitution on the legal system as a
whole were not a matter of primary concern. This omission could be as-
cribed to the fact that the new dispensation was being developed in the
course of adversarial political negotiations toward a solution that would
be as unobjectionable as possible to as many people as possible.33
The main players in the multi-party negotiations that produced the
Constitution, 1993 were, on the one side, representatives from the social-
istically-inclined liberation movements and, on the other side, representa-
tives from an order that functioned according to a constitutional dispensa-
tion founded in English legal thinking. Neither of these groups was likely
to have a natural intellectual affinity for the precepts of either the rule of
law or the Rechtsstaat. Against this backdrop, it is not surprising that the
idea of the constitutional state was introduced into the constitutional ne-
gotiation process by technical advisors rather than political players. These
advisors drew on a foundation of comparative constitutional scholarship
rooted in knowledge of European and Anglo-American constitutional doc-
trine to assist with the constitution-writing process.
When the drafters resolved to give expression to Rechtsstaatlichkeit in
the text of the Constitution, 1993, they chose the term constitutional
state in the absence of a direct, English equivalent for the term
Rechtsstaat. Although the German concept Verfassungsstaat (which trans-
lates directly into constitutional state) is not a synonym for Rechtsstaat,
the drafters considered the term to be sufficiently similar to indicate the
32 These changes are excellently shown by the work of Andr van der Walt and other
property lawyers published over the past two decades: see e.g. AJ van der Walt, Consti-
tutional Property Law (Cape Town: Juta, 2005).
33 Francois Venter, Liberal Democracy: The Unintended Consequence. South African
Constitution-Writing Propelled by the Winds of Globalisation (2010) 26:1 SAJHR 45 at
52-56.
734 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
more comprehensive concept in the preamble.34 Requiring a new constitu-
tion to be formulated and adopted within two years, this transitional con-
stitution contained the seeds of its own replacement.35 It is clear, however,
that the characteristics of the constitutional state were not only the basis
of that first constitution but that they would also be prescribed elements
of the new constitution. In addition, the 1993 text provided a launching
pad for Rechtsstaat jurisprudence to take hold immediately.
While the term constitutional state did not reappear in the 1996 text
of the final constitution, it was replaced by the rule of law as a founding
constitutional value.36 The Constitutional Assembly, which was charged
with producing a final constitution, was not required to make explicit ref-
erence to Rechtsstaatlichkeit and so its replacement by the rule of law did
not constitute a violation of the Constitutional Principles.37
Given this change in terminology, a legitimate question arises as to
how the drafters of the South African constitution chose between Von
Mohl and Dicey? In the absence of any clear evidence of substantive de-
bate or justification from the pouvoir constituant, no definitive response to
the question is possible. However, in view of the history of South African
legal culture in the course of which English and continental ideas became
intermingled, one may however assume that no conscious choice was
madea merger of the conceptions came about naturally.
Over the past three centuries, the colonial Dutch and English legal
traditions that emerged in the twentieth century had given rise to two
distinct strains in the scholarly and judicial culture of South Africa. First,
there were the Afrikaans-speakers, who were more inclined to seek juridi-
cal enlightenment in the Dutch- and German-speaking civil law jurisdic-
tions of Europe. Second, there were the English-speaking lawyers who
were more disposed to study and rely on sources from the English, Com-
monwealth, and North American systems. Both strains of legal culture
were influential in the technical development of the current constitutional
arrangement. The continentally-orientated component was, however, less
34 Constitution, 1993, supra note 1 (this is confirmed by the use of the term regstaat in
the Afrikaans version of the Preambles text).
35 Constitution, 1993, supra note 1, s 73(1).
36 Constitution, 1996, supra note 3, s 1(c).
37 Section 71 of the Constitution, 1993 (supra note 1) required the final constitution to
comply with a set of thirty-four “Constitutional Principles” set out comprehensively in
Schedule 4. The section also required that such compliance be certified by the Constitu-
tional Court before a new constitutional text could come into force. This set of principles
also guided the drafting of the Constitution, 1993 (ibid, Preamble), thus causing the
Constitution, 1996 not to deviate in any significant manner from the foundations laid in
1993.
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 735
prominent in the drafting of the final constitution than in the preparation
of the Constitution, 1993. At no point in time, neither during the writing
of the constitutions, nor subsequently, can it be said that significant ten-
sion or confrontation arose between the two cultural elements.
The jurisprudence of the Constitutional Court of South Africa in the
first few years following the establishment and development of the new
order was foundational to its further evolution. Both historical varieties of
South African legal culture were represented on the bench.
The initial work of the Court was done under the 1993 text.38 From the
Courts systematic amplification of the idea of the constitutional state and
the consequent development of a home-grown understanding of constitu-
tionalism, a remarkable marriage occurred on African soil between two
notions sourced from English and Germanic doctrine.
III. The Judicial Construction of a Constitutional State
The expressions constitutional state and rule of law appear only
once in each of the two recent South African constitutions and the texts do
not directly elaborate on them in any way. It was therefore left to consti-
tutional interpreters, especially the judiciary (the Constitutional Court in
particular), to extract the meaning and implications of these two histori-
cally disconnected, though conceptually related, ideas and incorporate
them into the new and pervasive constitutional doctrine of the country. In
this, the Constitutional Court was not found lacking. From the jurispru-
dence of the Court, it is possible to compile a cogent set of attributes of
South African constitutionalism rooted in both Rechtsstaatlichkeit and the
rule of law.
The Court did not intentionally craft an umbrella term giving expres-
sion to South Africas Diceyan Rechtsstaatlichkeit. One might have hoped
to find it in an expression like constitutionalism but that continues to be
a word so pliable and generalized that it belongs to everyone and nobody
at the same time, without a constant sense.39 A better choice for an um-
38 See e.g. Iain Currie & Johan de Waal, The Bill of Rights Handbook, 5th ed (Cape Town,
Juta: 2005) at 5-6:
in spite of its transitional status, the interim Constitution was nevertheless
binding, supreme and fully justiciable. It contained, in Chapter 3, a compre-
hensive Bill of Rights. Because the interim Bill of Rights was for the most
part similar to that in the 1996 Constitution, most of the judicial decisions on
rights handed down under the interim Constitution remain authoritative.
39 For a broader discussion, see Francois Venter, Constitutional Comparison: Japan,
Germany, Canada and South Africa as Constitutional States (Cape Town: Juta, 2000)
at 20-36 [Venter, Comparison].
736 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
brella term seems to be constitutional state. It is significant that the
Constitutional Court currently continues to employ the term constitu-
tional state in its jurisprudence but without reference to the preamble of
the Constitution, 1993.40 It appears justified to deduce from this that the
notion of the constitutional state has developed its own autonomous (if not
autochthonous) meaning in South African law. Be that as it may, the
meaning that has been given to it demonstrates the marriage of
Rechtsstaatlichkeit and the rule of law. An analysis of the Constitutional
Courts jurisprudence reveals that the South African constitutional state
may be defined as a state in which: (a) the constitution prevails over all
law and all actions of the state; (b) fundamental rights are acknowledged
and protected through the independent authority of the judiciary to en-
force the bill of rights and the constitution; (c) separation of powers is
maintained; (d) all government action is required to be legally justified; (e)
the state has a duty to protect fundamental rights; (f) legal certainty is
promoted; (g) democracy and the rule of law are maintained; (h) a specific
set of legal principles apply; and (i) an objective, normative system of val-
ues guides the executive, legislature, and the judiciary. Since 1995, a se-
ries of constitutional judgments have confirmed these elements.
A. Supremacy of the Constitution
The primacy of the constitution was relied upon by the Constitutional
Court from the outset to give content to the idea of the constitutional
state, not only because there were express constitutional provisions to
that effect, but also because of the judicial perception of what the nature
of the new order was and what the role of the judiciary should be in such
an order.41 Many dicta of the Constitutional Court, including recent judg-
ments, confirm that the constitutional state is characterized by the fact
40 See e.g. The Citizen 1978 v McBride, [2011] ZACC 11 at para 84, [2011] 4 S Afr LR 191
(S Afr Const Ct) (In our constitutional State, comment on matters of public interest re-
ceives protection under the guarantee of freedom of expression); Thint (Pty) Ltd v Na-
tional Director of Public Prosecutions, [2008] ZACC 13 at para 283, [2009] 1 S Afr LR 1
(S Afr Const Ct) ([T]he NPA Act expresses concern for constitutional rights. It does this
out of recognition that South Africa is a constitutional State; a State founded on the re-
spect for human dignity and dedicated to the pursuit of the achievement of human
rights and freedom for all).
41 See e.g. S v Makwanyane and Another, [1995] 3 S Afr LR 391 at para 7, [1995] 6 B
Const LR 665 (S Afr Const Ct) [Makwanyane]; Executive Council, Western Cape Legisla-
ture v President of RSA, [1995] 4 S Afr LR 877, [1995] 10 B Const LR 1289 (S Afr Const
Ct) [Western Cape cited to S Afr LR] (Chaskalson Ps reference to the need to create a
new order and the direct link to the constitutional state in the opinion of Ackermann
J and ORegan J at paras 61, 151).
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 737
that the constitution is the supreme law and that all law and state con-
duct is subject thereto.42
B. Independence of the Judiciary
The constitution expressly provides for the independence of the judici-
ary.43 The Constitutional Court forcefully stated this principle with refer-
ence to civil procedure in 1996:
In all democratic societies the State has the duty to establish inde-
pendent tribunals for the resolution of civil disputes and the prose-
cution of persons charged with having committed crimes. In a consti-
tutional State that obligation is of fundamental importance and it is
clearly recognised as such in our Constitution.44
The Court has also pointed out how the rule of law and Rechtsstaat-
lichkeit were related through this concept:
Section 22 achieves this by ensuring that the courts and other fora
which settle justiciable disputes are independent and impartial. It is
a provision fundamental to the upholding of the rule of law, the con-
stitutional state, the regstaatidee, for it prevents legislatures, at
whatever level, from turning themselves by acts of legerdemain into
courts. 45
C. Separation of Powers
Not surprisingly, the doctrine of separation of powers arose early on in
the consideration of the constitutional position of the judiciary under the
new constitutional arrangement. In 1998, the Court stated: [The right
not to be detained without trial] is the pre-eminent, if not the only, guar-
antee against arbitrary administrative detention and is indispensable for
42 See e.g. National Gambling Board v Premier, KwaZulu-Natal (2001), [2002] 2 S Afr LR
715 at para 23, [2002] 2 B Const LR 156 (S Afr Const Ct): It is true that in a constitu-
tional State all public power is derived from the Constitution. A very recent example is
Law Society of SA v Minister for Transport, [2010] ZACC 25 at para 36, [2011] 1 S Afr
LR 400 (S Afr Const Ct): Unlike many other written constitutions, our supreme law
provides for rigorous judicial scrutiny of statutes which are challenged for the reason
that they infringe fundamental rights. See also ibid at para 38.
43 Constitution, 1996, supra note 3, s 165(2): The courts are independent and subject only
to the Constitution and the law.
44 Bernstein v Bester NNO, [1996] 2 S Afr LR 751 at para 51, [1996] 4 B Const LR 449 (S
Afr Const Ct).
45 Ibid at para 105.
738 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the upholding of the rule of law and the separation of powers in a consti-
tutional State. 46
The centrality of the separation of powers was again emphasized by
the Court in 2011. This time, however, the principle arose in a matter
concerning the presidents extension of the chief justices term of office:
The principles of the rule of law, the separation of powers and judicial
independence, underscored by international law, are indispensable cor-
nerstones of our constitutional democracy. 47
with the rule of law is conspicuous.
The consistent association of the doctrine of the separation of powers
D. Legal Justification for Government Action
Humans, by nature, tend to take short cuts when it comes to the exer-
cise of authority; it may even be said that this human trait justifies the
limitations typically imposed by constitutions. Thus, in a constitutional
state, government conduct must be legally justifiable. This idea was em-
phasized from the outset by the Constitutional Court.48 In 2006, the Court
made the point as follows:
As this case demonstrates, far from the foundational values of the
rule of law and of accountable government existing in discreet cate-
gories, they overlap and reinforce each other. Openness of govern-
ment promotes both the rationality that the rule of law requires, and
the accountability that multi-party democracy demands. In our con-
46 De Lange, supra note 21 at para 89. For a more recent discussion of the separation of
powers, see Glenister v President of the RSA, [2008] ZACC 19, [2009] 1 S Afr LR 287 (S
Afr Const Ct).
47 Justice Alliance of SA v President of the RSA, [2011] ZACC 23 at para 40, [2011] 5 S Afr
LR 388 (S Afr Const Ct) [Justice Alliance].
48 As early as in Makwanyane, the Court clearly stated:
We have moved from a past characterised by much which was arbitrary and
unequal in the operation of the law to a present and a future in a constitu-
tional State where State action must be such that it is capable of being ana-
lysed and justified rationally. The idea of the constitutional State presuppos-
es a system whose operation can be rationally tested against or in terms of
the law. Arbitrariness, by its very nature, is dissonant with these core con-
cepts of our new constitutional order (supra note 38 at para 156).
See also Prinsloo v Van der Linde and Another, [1997] 3 S Afr LR 1012 at paras 25-26,
[1997] 6 B Const LR 759 (S Afr Const Ct); UDM v President of the Republic of South Af-
rica (No 2) (2002), [2003] 1 S Afr LR 495 at para 55, [2002] 10 B Const LR 1086 (S Afr
Const Ct) (referring to Pharmaceutical, supra note 4 at paras 84-85).
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 739
stitutional order, the legitimacy of laws made by Parliament comes
not from awe, but from openness. 49
E. Duty of the State to Protect Fundamental Rights
In a similar vein, it has been emphasized that the state and its organs
are obliged to protect fundamental rights, not threaten them: In a consti-
tutional democratic State, which ours now certainly is, and under the rule
of law … citizens as well as non-citizens are entitled to rely upon the
State for the protection and enforcement of their rights. 50
The duty and function of the state to acknowledge and protect funda-
mental rights is considered by the Court to be a basic tenet of the consti-
tutional state. Justice Chaskalson, who at the time was the president of
the Court, stated in the Makwanyane judgment: The Constitution is
premised on the assumption that ours will be a constitutional State
founded on the recognition of human rights. 51
F. Legal Certainty
In more than one instance, the Court has pointed out that legal cer-
tainty is a central consideration in a constitutional state. In one of its very
early judgments, the Constitutional Court gave legal certainty a central
role in the constitutional state:
The Constitutional Court, or any other competent Court for that
matter, ought not to restrict its enquiry to the position of one of the
parties to a dispute in order to determine the validity of a law. The
consequence of such a (subjective) approach would be to recognise
the validity of a statute in respect of one litigant, only to deny it to
another. Besides resulting in a denial of equal protection of the law,
considerations of legal certainty, being a central consideration in a
constitutional state, militate against the adoption of the subjective
approach. 52
49 Matatiele Municipality v President of the RSA, [2006] 5 S Afr LR 47 at para 110, [2006]
5 B Const LR 622 (S Afr Const Ct).
50 De Lange, supra note 21 at para 31 [footnotes omitted].
51 Makwanyane, supra note 38 at para 130 [footnotes omitted]. C.f. ibid at paras 140, 220,
311. See also Bel Porto School Governing Body v Premier, Western Cape, [2002] 3 S Afr
LR 265 at para 181, [2002] 9 B Const LR 891 (S Afr Const Ct).
52 Ferreira v Levin NO (1995), [1996] 1 S Afr LR 984 at para 26, [1996] 1 B Const LR 1 (S
Afr Const Ct), Ackermann J. Justice Ackermann also pointed out this factor in a differ-
ent context, the application of fundamental rights in private law, in Du Plessis v De
Klerk, [1996] 3 S Afr LR 850 at para 97, [1996] 5 B Const LR 658 (S Afr Const Ct).
740 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Furthermore, in a 2009 judgment concerning the balancing of customary
(tribal) law with the values of the constitution, legal certainty was in itself
referred to as a value:
[C]ourts must be cognisant of the fact that customary law, like any
other law, regulates the lives of people. The need for flexibility and
the imperative to facilitate development must be balanced against
the value of legal certainty, respect for vested rights, and the protec-
tion of constitutional rights.53
Finally, in 2010, the Court stated with reference to the binding effect of its
judgments: [P]recedents must be respected in order to ensure legal cer-
tainty and equality before the law. This is essential for the rule of law.
Law cannot rule unless it is reasonably predictable. 54
Legal certainty also requires legal norms to be clear and accessible.
The Court has referred to the necessity that rules be stated in a clear and
accessible manner as an important principle of the rule of law.55
G. Democracy
As can be seen in various dicta cited above, democracy is often men-
tioned in connection with the constitutional state and the rule of law. For
example, the Court has stated that [r]espect for the rule of law is crucial
for a defensible and sustainable democracy,56 and more recently that,
[i]n order for our rights-based constitutional democracy to thrive, the col-
lection of rights and protections in the Bill of Rights may be seen as being
interrelated and interdependent.57 The term democracy is not capable
53 Shilubana v Nwamitwa, [2008] ZACC 9 at para 47, [2009] 2 S Afr LR 66 (S Afr Const
Ct). See also ibid at paras 76, 84.
54 Gcaba v Minister for Safety and Security, [2009] ZACC 26 at para 62, [2010] 1 S Afr LR
238 (S Afr Const Ct).
55 Dawood, Shalabi and Thomas v Minister of Home Affairs, [2000] 3 S Afr LR 936 at para
47, [2000] 8 B Const LR 837 (S Afr Const Ct). The Court subsequently referred to this
principle in De Reuck v Director of Public Prosecutions, WLD:
The first question is whether s 27(1), read with the definition of child pornog-
raphy, is a law of general application as required by s 36(1). This Court has
held that this requirement derives from an important principle of the rule of
law, namely that rules be stated in a clear and accessible manner ((2003),
[2004] 1 S Afr LR 406 at para 57, [2003] 12 B Const LR 1333 (S Afr Const
Ct)).
56 Chief Lesapo v North West Agricultural Bank and Another (1999), [2000] 1 S Afr LR 409
at para 17, [1999] 12 B Const LR 1420 (S Afr Const Ct).
57 Offit Enterprises v Coega Development, [2010] ZACC 20 at para 36, [2011] 1 S Afr LR
293 (S Afr Const Ct).
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 741
of precise legal definition,58 but it may influence an understanding of the
constitutional state in the appropriate context. The phrase our consti-
tutional democracy seems to come easily to the justices of the Constitu-
tional Court. 59
H. Rule of Law
The most concrete alignment by the Constitutional Court of the rule of
law with the notion of the constitutional state is to be found in a paren-
thetical suggestion in the De Lange judgment that the rule of law might
be entirely subsumed under the concept of the constitutional State.60
This suggestion was taken one step further in the Fedsure judgment, in
which the rule of law was extensively relied upon as a guiding model, and
where it was stated that: In Germany, art 20(3) of the Basic Law con-
firms the rechtstaatprinzip which is related to the concept of the rule of
law. 61
At this juncture, it becomes clear that the focus is on the notion of the
constitutional state rather than the narrower Diceyan concept of the rule
of law.62 In the judgment in Van der Walt, Justice Madala found occasion
to set out the following doctrinal exposition of its understanding of the
rule of law:
[65] The doctrine of the rule of law is a fundamental postulate of
our constitutional structure. This is not only stated explicitly in
s 1 of the Constitution but it permeates the entire Constitution.
The rule of law has as some of its basic tenets:
1. The absence of arbitrary powerwhich encompasses the
view that no person in authority enjoys wide unlimited dis-
cretionary or arbitrary powers.
2. Equality before the lawwhich means that every person,
whatever his/her station in life is subject to the ordinary
law and jurisdiction of the ordinary courts.
58 Venter, Comparison, supra note 35 at 193.
59 See e.g. Justice Alliance, supra note 44 at paras 40, 53, 65.
60 Supra note 21 at para 31.
61 Fedsure Life Assurance v Greater Johannesburg TMC (1998), [1999] 1 S Afr LR 374 at
para 56, [1998] 12 B Const LR 1458 (S Afr Const Ct) [footnotes omitted].
62 Such a close identification is also borne out by the following dictum in S v. Dodo:
In the field of sentencing, however, it can be stated as a matter of principle
that the Legislature ought not to oblige the Judiciary to impose a punish-
ment which is wholly lacking in proportionality to the crime. This would be
inimical to the rule of law and the constitutional State ([2001] 3 S Afr LR 382
at para 26, [2001] 5 B Const LR 423 (S Afr Const Ct)).
742 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
3. The legal protection of certain basic human rights.
[66] The concept of the rule of law has no fixed connotation, but its
broad sweep and emphasis is on the absence of arbitrary pow-
er. … [I]t [also] excludes unpredictability. …
[68] A further postulate of the rule of law is the guarantee of equal-
ity before the law which is designed to advance the value that
all persons be subject to equal demands and equal burdens of
the law, and not to suffer any greater disability in the sub-
stance and application of the law than others. This to me is one
of the basic precepts of the rule of law, so that no individual or
group of individuals is to be treated more harshly than another
under the law. …
[69] South Africa is a constitutional democracy and as such will not
countenance conduct where equality is denied when those who
are similarly situated are differently treated.
[70] It is when the administration of justice is likely to fall into dis-
repute and when the foundational values of the Constitution
and the rule of law are threatened that this Courts legitimate
role as the protector of those values comes into play. As a socie-
ty committed to equality we must show to people equal concern
and respect.63
Comparing these points to the characteristics that the Court has associat-
ed with the South African constitutional state justifies the view that the
rule of law has indeed been subsumed under the broader concept.
I. Specific Legal Principles
The notion of the constitutional state has clearly been established as a
comprehensive expression of the ideal nature of the South African state.
One should therefore not be surprised that it has been used, and poten-
tially will be used, as a terminological and conceptual harbour within
which the desirable constitutional attributes of the state are accommodat-
ed.
As is the case with what is referred to by some as the material (as dis-
tinguished from the formal) aspects of the Rechtsstaat, some judgments
have associated specific legal principles with the constitutional state.
Thus, regarding the principle against self help, the Court stated:
In a modern constitutional State like ours, there is no room for legis-
lation which, as in this case, is inimical to a fundamental principle
such as that against self help. This is particularly so when the ten-
63 Van der Walt v Metcash Trading Ltd, [2002] 4 S Afr LR 317 at paras 65-70, [2002] 5 B
Const LR 454, (S Afr Const Ct) [footnotes omitted].
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 743
dency for aggrieved persons to take the law into their own hands is a
constant threat.64
Similarly, proportionality, the striking of a balance between various in-
terests, was described as follows with reference to the constitutional state:
Proportionality is consistent with the Bill of Rights, but that exercise
must now be carried out in accordance with the spirit, purport and
objects of the Bill of Rights and the relevant factors must be
weighed in the context of a constitutional State founded on dignity,
equality and freedom and in which government has positive duties
to promote and uphold such values. 65
J. Objective Normative System of Values
Following the example of German doctrine regarding the material
elements of Rechtsstaatlichkeit, the Constitutional Court has attached to
the constitutional state the elevated pursuit of higher constitutional val-
ues. The foundation for this approach was laid in its inaugural Makwan-
yane judgment: In reaction to our past, the concept and values of the con-
stitutional State, of the regstaat, and the constitutional right to equality
before the law are deeply foundational to the creation of the new order
referred to in the preamble. 66 The most direct and concrete articulation
of this aspect of the constitutional state is to be found in the Carmichele
judgment, in which the Court stated that:
Our Constitution is not merely a formal document regulating public
power. It also embodies, like the German Constitution, an objective,
normative value system. As was stated by the German Federal Con-
stitutional Court:
The jurisprudence of the Federal Constitutional Court is
consistently to the effect that the basic right norms contain not
only defensive subjective rights for the individual but embody at
the same time an objective value system which, as a fundamental
constitutional value for all areas of the law, acts as a guiding
principle and stimulus for the Legislature, Executive and Judici-
ary.
The same is true of our Constitution. The influence of the fundamen-
tal constitutional values on the common law is mandated by s 39(2)
64 Lesapo, supra note 53 at para 17. The principle against self help was reconfirmed in
Gundwana v Steko Development, [2011] ZACC 14 para 45, [2011] 3 S Afr LR 608 (S Afr
Const Ct).
65 Carmichele v Minister of Safety and Security, [2001] 4 S Afr LR 938 at para 43, [2001]
10 B Const LR 995 (S Afr Const Ct) [Carmichele].
66 Supra note 38 at para 156.
744 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of the Constitution. It is within the matrix of this objective norma-
tive value system that the common law must be developed. 67
That this view of the constitutional state is being perpetuated emerges
from the following dictum of the Court in 2008:
What must be stressed here is that our Constitution embodies an ob-
jective, normative value system; it embodies fundamental constitu-
tional value[s] for all areas of the law [which should act] as a guiding
principle and stimulus for the Legislature, Executive and Judiciary.
These fundamental constitutional principles are explicitly set out in
the founding provisions of our Constitution and are explicitly given
effect to in the Bill of Rights. Such values are human dignity and the
achievement of equality. 68
Conclusion: Comparison by Global Assimilation
We live in an era of constitutional law where comparison, sometimes
on a global scale, has become second nature to constitutional lawyers.
There is even a large academic lobby (mostly, but not exclusively, North
American) that does not hesitate to use the expression comparative con-
stitutional law as though this has been established as a field or discipline
similar to criminal law, the law of contract, or public international law.69
In most cases, this is probably merely a matter of imprecise labelling,
stemming from the growing tendency of universities to include courses
under that name. In some cases, however, no doubt is left regarding the
view that it has the status of a discipline in the encyclopaedia of law dis-
ciplines.70
Why has constitutional comparison become a global enterprise? The
answer to this question requires more elaboration than the theme of this
67 Supra note 62 at para 54 [footnotes omitted].
68 Thint, supra note 37 at para 375 [square bracketed text in original, footnotes omitted].
69 See e.g. Durga Das Basu, Comparative Constitutional Law, 2d ed (Agra, India:
Wadhwa, 2008); Tom Ginsburg & Rosalind Dixon, eds, Comparative Constitutional
Law (Cheltenham, UK: Edward Elgar, 2011); Vicki C Jackson & Mark Tushnet, Com-
parative Constitutional Law, 2d ed (New York: Foundation Press, 2006); Joakim Nerge-
lius, Komparativ statsrtt [Comparative Constitutional Law], 6th ed (Lund, Sweden:
Juristfrlaget, 2007); Bernd Wieser, Vergleichendes Verfassungsrecht [Comparative
Constitutional Law] (Vienna: Springer, 2005).
70 See e.g. David Fontana, The Rise and Fall of Comparative Constitutional Law in the
Postwar Era (2011) 36:1 Yale J Intl L 1 at 4 (defining comparative constitutional law
as the study of the domestic constitutional law of other countries). This definition is
certainly open to challenge: compare David Landau, Political Institutions and Judicial
Role in Comparative Constitutional Law (2010) 51:2 Harv Intl LJ 319 at 332-34. Lan-
dau argues that theories of judicial role and judicial strategy in comparative constitu-
tional law should rest more than they do on the comparative analysis of political insti-
tutions (ibid at 334.)
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 745
paper allows for. The experience of constitution-writing in South Africa
may, however, offer a partial response.
In the South Africa of the early 1990s, where the necessity of profound
constitutional restructuring was as obvious as the need for a fundamental
break with the foregoing system, a thorough examination of widely ac-
cepted constitutional constructs was the obvious route to take. For politi-
cians and their advisors, it was possible to browse the global constitution-
al library in which the shining examples of late twentieth century consti-
tutionalism were set out, cherry-pick from among those examples, and as-
similate ideas into a negotiated text. Negotiationa give and take process
with a view to yielding optimal advantage for all partiesopened all pos-
sible avenues to the negotiators to adopt what was perceived generally to
be the best from among the various exemplary legal systems and to
jointly claim consensus that those were indeed the best choices for local
circumstances.
This was a comparative exercise in the sense that drafters studied
various commendable approaches to the regulation of the constitutional
elements concerned and adopted those elements most attractive to the
negotiating parties. This may be described as comparison by global assim-
ilation, and conversely, the assimilation of globally venerated notions
through comparison. Thus, it became possible for South African law to in-
tegrate concepts from historically divergent legal systems and to merge
them into a working doctrine by twining overlapping characteristics into a
single model: a theory of the constitutional state with which foreign pro-
ponents of both the Rechtsstaat and the rule of law might feel comfortable.
Finally, we may briefly consider the benefits offered by a hybrid con-
stitutional system for the enhancement of our understanding of constitu-
tional law in a globalized world. Over the centuries, different ambitions
have been pursued by means of comparative law. A prominent example is
that of Ernst Rabel, who hoped to facilitate the transition of international
discord into accord through legal unification.71 Conceptually more spec-
tacular and recent is the work of Otfried Hffe, who wishes to see the rule
of law, justice, and democracy be acknowledged as a global standard ap-
plicable to a future world order characterized by the notion of a subsidiary
(in the sense of subsidiarity) and a federal world republic. Not a world
71 David J Gerber, Sculpting the Agenda of Comparative Law: Ernst Rabel and the Fa-
cade of Language in Annelise Riles, ed, Rethinking the Masters of Comparative Law
(Oxford: Hart, 2001) 190 at 196-97.
746 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
state, this world republic would take the form of a universal moral
framework for sound governance.72
This universalistic drive towards cosmopolitan peace and harmony
based upon democratic justice as a primary goal for human society is not
new at all,73 but it is receiving new impetus under the conditions of grow-
ing globalization. Methodologically, however, in the drive to find similari-
ties such an approach obscures the realities of sometimes essential and ir-
reconcilable divergences between constitutional systems.
By contrast, the well-established functionalist approach to comparison
in law seeks out similar functions of norms in different systems in order
to determine which of the solutions found in the compared situations are
preferable. More often than not, the functional approach tends to be
mechanistic, shying away from an analysis of the deeper values and prin-
ciples upon which the norms being analyzed are built. Ralf Michaels, for
example, identifies four elements on which he finds most functionalists
agree:
comparative law is factual, (i.e. it focuses not on rules but on their
effects, not on doctrinal structures and arguments, but on
events);
the objects of comparison are understood by functionalists in their
functional relation to society, meaning that law and society are
separable but related;
a tertium comparationis function as such is utilized rendering the
objects of comparison comparable if they perform the same func-
tions regardless of being doctrinally different; and
some functionalists also consider functionality as useful for evalu-
ation in the sense that the best of the compared material is that
which fulfils the function concerned best.74
Global comparison of constitutional law, having become unavoidable
and indispensable to the constitutional lawyer, should not, however, be
approached from the perspective of making it into a tool for the realiza-
tion of either the ambitions of the unification of the law or for brandishing
72 Otfried Hffe, Demokratie im Zeitalter der Globalisierung [Democracy in an Age of
Globalisation] (Munich: CH Beck, 1999).
73 See e.g. Thom Brooks, ed, The Global Justice Reader (Malden, Mass: Blackwell, 2008)
at 316 (noting that such ideals were defended by Kant in 1795 and also by Jrgen Ha-
bermas and Thomas Pogge).
74 Ralf Michaels, The Functional Method of Comparative Law in Mathias Reimann &
Reinhard Zimmermann, eds, The Oxford Handbook of Comparative Law (Oxford: Ox-
ford University Press, 2006) 339 at 342.
SOUTH AFRICA: A DICEAN RECHTSSTAAT? 747
its results as a weapon for the condemnation of those systems that do not
conform to the popular norm. Nor should constitutional lawyers be bogged
down by a single methodology, be it functional, universalistic, or postmod-
ern. Constitutional comparison is primarily a mechanism for acquiring
knowledge and insight into the manner in which societies operate, and oc-
casionally, as appears from the travails of the notion of the constitutional
state in the hands of the Constitutional Court of South Africa, for the
breeding of excitingly fresh constructions borne from historically incom-
patible parents.
