The rise of the rule of quasi-law in SA
The rule of law demands that those who administer the law must rarely, if ever, do so according to their own discretion, writes Martin van Staden
Quasi-law has become the norm in SA, with Parliament acting as a delegator of powers rather than the representative law-making body it is supposed to be.
"Quasi-law" is described by US professors Bruce Frohnen and George Carey in their book, Constitutional Morality and the Rise of Quasi-Law, as measures that carry the force of law, but lack the character of law. These quasi-laws "create rights and duties like laws but lack essential legal attributes such as promulgation through prescribed means and provision of predictable rules rather than mere delegation of discretionary power".
In a society that respects the rule of law — an imperative in section 1(c) of SA’s Constitution — laws are made by Parliament, administered by the executive, and adjudicated by the courts. The executive, crucially, cannot make law, but can enact regulations that enable the technical implementation of the substantive rules created by Parliament. Frohnen and Carey, however, write that all three branches of government have become accomplices in this phenomenon.
In SA, quasi-law is most evident within the ranks of our executive government. The Department of Trade and Industry (DTI), acting without a mandate, is in the process of effectively banning the sale of alcohol, and the Department of International Relations and Co-operation tried to withdraw SA from the International Criminal Court (ICC) by mere executive fiat. Thankfully, the High Court found that the latter instance was invalid without parliamentary approval, but, in the case of the former, our judiciary is likely to "defer" to the "expertise" of the Department of Trade and Industry.
It is often assumed that the rule of law is limited to enforcing existent laws. However, the rule of law does have more substance than that. Its principal tenet is that those who administer the law, mostly government officials, must do so in accordance with strict guidelines and rarely, if ever, according to their own discretion. Discretion, it is argued, enables officials to more appropriately adapt their decisions to the circumstances of the matter in hand, but it is incorrect to assume that adherence to reasonable, understandable and certain guidelines necessarily inhibits effective governance.
Take, for instance, the power of mine safety inspectors to close an entire mine if they, in their opinion, believe "a health threatening occurrence has occurred". This happened recently at an AngloGold mine where one faulty shaft led to the entire facility being forcefully closed. While the High Court held that the inspector had acted irrationally, it did not, however, pronounce on whether the empowering legislation itself was problematic. The legislation, after all, allowed the inspector this discretion.
The Mine Health and Safety Act, and this provision in particular, is quasi-law and does not accord with the constitutional principle of the rule of law. It serves only to assign a discretionary power to an official, with no real criteria to which they should adhere. It would not preclude effective governance if the law in this case provided that the inspector should at least be able to show that his concerns are valid and allow the mine to similarly state its case.
Good governance would require the inspector to apply to court for an interdict prohibiting the mine from further operation, which will put the matter before an impartial bench where both parties can lead evidence to support their respective cases. This is what would happen in a rechtstaat — a state governed by law — but not what is happening in the South African administrative state.
Countless examples of this quasi-law are found throughout our regulatory regime.
Our Constitutional Court has held, in essence, that under the Currency and Exchanges Act, the president can do as he pleases, even to go so far as to suspend in part or in whole legislation that deals with currency, banking or exchange. Only one judge dissented, pointing out the obvious: that the president has been empowered to rule by decree.
The Short-Term Insurance Act empowers the registrar to refuse to register an insurance provider if he deems it in the public interest. "The public interest" remains blissfully undefined in this act, as it does in countless other pieces of legislation.
Public participation in creating policy is also becoming a bizarre exercise. The minister of telecommunications, for instance, felt quite confident in declaring SA’s new telecommunications policy "final" months before his department released the socioeconomic impact assessment done for the policy. How can a policy be final before the public knows whether or not it will be beneficial?
The Constitutional Court has, more often than not, been giving Parliament’s delegation of powers the stamp of approval under the guise of "deferring" to the legislature’s competency. Our elected representatives are allowing faceless, nameless officials to rule every facet of our lives. Governance is now perceived by those in power as a corporate micromanagement of society, where the consent of the governed need simply be vaguely gauged once every five years. To this, South Africans must stand up and say "nothing about us, without us".
• Van Staden is legal researcher at the Free Market Foundation and academic programmes director of Students For Liberty in Southern Africa.