EUSTACE DAVIE: SA officials demand more powers, subverting principles of good law

The founding provisions of the SA constitution are not strictly applied in the adoption of legislation by parliament, and consequently in the governance of the country. Founding provisions are the values upon which the state is founded and include, “(a) human dignity, the achievement of equality and the advancement of human rights and freedoms (b) nonracialism and non-sexism, and (c) supremacy of the constitution and the rule of law.” 

According to statistics SA, on March 31 there were 12.753-million unemployed South Africans (including 4.782-million “discouraged workers” who had given up looking for jobs). They will attest to the fact that their human dignity is not being respected, they do not have legal equality with SA’s employed people, and their human rights and freedoms are not being advanced by the officials who have been granted arbitrary power over them by the incumbent government. On the contrary, their constitutional rights to work, earn and support themselves and their families are being abrogated by the officials.      

Apart from the stipulations in the constitution, there is a long history of philosophers, judges and scholars warning against the granting of discretionary powers to executive arms of government. For instance, according to the International Labour Organisation, depriving SA’s jobless masses of their rights has contributed to the country having the highest unemployment rate in the world.

Increasingly, laws and regulations are being determined by government officials and not by parliament. The constitution should prevent parliament from abdicating its powers, and MPs should be required to maintain vigilant supervision over all laws and regulations that are promulgated. The following excerpts from the writings of legal scholars give an indication of the importance and historical roots of this controversy: 

In 1624 Sir Edward Coke warned the English parliament in his Institutes of the Laws of England “to leave all causes to be measured by the golden and straight mete-wand of the law, and not to the uncertain and crooked cord of discretion”. 

The word “arbitrary” has two meanings, which were long confused. As parliament began to act as arbitrarily as the king, it came to be recognised that the arbitrariness of an action depended not on the source of the authority but on whether it was in conformity with pre-existing legal principles.

The points most frequently emphasised were that there should be no punishment without a previously existing law providing for it, that all statutes should have prospective and not retrospective operation, and that the discretion of all magistrates should be circumscribed by law. 

In his Second Treatise on Civil Government, philosopher John Locke was concerned with how power could be prevented from becoming arbitrary: “Freedom of men under government is to have a standing rule to live by ... made by the legislative power erected in it; a liberty to follow my own will in all things, where that rule prescribes not; and not to be subject to the inconstant, uncertain, arbitrary will of another man.” 

The rule of law requires that governments should enact only such laws as are general in nature, are applicable to everyone including itself, and do not attempt to bring about particular outcomes. The rule of law was described by Nobel economics laureate Friedrich Hayek in The constitution of Liberty: “Apartheid was possible,” he said, “because the government of the time ignored the rule of law and gave extensive arbitrary powers to officials.” Many of those powers still exist in SA, including state ownership and control of large tracts of land and extensive ownership of property in land, harbours, railways, energy generation and distribution, and much more. 

Friederic Bastiat (1801—1850) a French economist, statesman and author, did most of his writing during the years just prior to and immediately after the French Revolution. According to the records, as a member of the French parliament he spent his time analysing and explaining how the proposed socialist fallacies would eventually degenerate into communism, and warning that France and the French people would suffer the consequences.     

SA government officials are demanding even greater powers. Citizens need protection against this trend. Two ways of affording that protection are for MPs to resolutely refuse to approve any legislation that is not in accordance with the rule of law, and particularly that they refuse to approve provisions in legislation that grant arbitrary discretionary powers to government officials. 

The courts have the task of reviewing and controlling the acts of the administrative branch of government, especially to ensure they do not exceed the powers parliament intends to grant when approving legislation. SA’s legislation is, unfortunately, not conforming to the fundamental principles of good law as described by past great legal scholars writing on those principles. Closer to home, they are not abiding by the constitution. Voters can bring about change by insisting that all legislation must conform with the principles as set out in the constitution.

In his classic work A Conflict of Visions, Ideological Origins of Political Struggles, renowned US economist and author Thomas Sowell explains that it is not only the intellectual consistency but the moral thrust of opposing visions that give them historic importance. “These are not rarefied theoretical issues among intellectual giants, or emotional controversies among zealots. Everyone is part of the conflict of visions and the stakes are as real as money, power, and survival.” 

• Davie is a director of the Free Market Foundation. He writes in his personal capacity.