EUSTACE DAVIE: What Queen Elizabeth II’s Harrismith visit shows about the rule of law

Anyone who has doubts about what “the rule of law” means, and what role the concept should play in our lives, would do well to read Martin van Staden's The Constitution and the Rule of Law: An Introduction. There is an expressed longing for a clear and widely understood description or definition of what the term means.

If there were to be generally accepted rules of conduct, not only understood and adopted by everyone but also abided by them in their daily lives, the world would undoubtedly be more congenial and safer. However, events around us indicate that such a dream is unlikely to be fulfilled soon.

The behaviour of our elected government is especially unfortunate. With elections coming up in two years, we can expect a litany of promises about how much better off we would be if we were to elect so-and-so to parliament. Such an undertaking is only likely to be true if parliament were to consist of members who are voted in individually and not committed to support the policies devised by a specific political party, unless that party were truly committed to upholding the rule of law.

The constitution attempts to ensure that officeholders will promote the general good and not be biased, for instance in favour of those who vote them into office. Presidents swear oaths that they will “protect and promote the rights of all South Africans”, “do justice to all” and promise to “devote [themselves] to the wellbeing of the republic and all of its people”. This is done knowing that it is not true.

The rule of law board of advisers of the Free Market Foundation has formulated what it considers to be imperatives of the rule of law:

• All law must be clear, predictable, accessible, not contradictory, and shall not have retrospective effect.
• All legislation that makes provision for discretionary powers must also incorporate the objective criteria by which those powers are to be exercised. The enabling legislation must, in addition, stipulate the purpose or purposes for which the powers may be exercised.
• All law must apply the principle of equality before the law.
• All law must be applied fairly, impartially, and without fear, favour or prejudice.
• The sole legitimate authority for making substantive law rests with the legislature, which authority shall not be delegated to any other entity.
• No law shall have the aim or effect of circumventing the final authority of the courts.
• No-one may be deprived of or have their property expropriated, except if done with due process for the public interest, and in exchange for compensation that is just and market related.
• The law shall afford adequate protection of classical individual rights.
• All law must comply with the overriding principle of reasonableness, which comprehends rationality, proportionality, and effectiveness.
• The legislature and organs of state shall observe due process in the rational exercise of their authority.

The practical significance of the rule of law might be illustrated by a story. The death of Queen Elizabeth II has resulted in what is described as a “rediscovery” of the 1947 British royal family visit to SA, including unexpected visits to small country towns such as Intabazwe (Harrismith) in the Free State, where a rule of law-related occurrence took place all those years ago.

The 12-year-old son of a farmer from a mountain farm in the vicinity had decided to try to earn extra pocket money during holiday breaks from boarding school by picking and selling proteas from bushes growing on the slopes of the mountainous parts of the farm. His father had agreed to sell the flowers to the Intabazwe florist on his weekly visits to the town.

Breaking law

The first two trips were successful. The boy had cash in his savings box, and he could start working out what new sports gear he would be able to buy. On the third trip to town his father returned with the proteas unsold.

The florist said the head of the local police told him that a member of the local community had informed the police that the florist was breaking the law by trading in proteas, the national flower, and that he should stop buying and selling them.

The young entrepreneur thought the intervention was wrong, arguing that he was careful not to damage the trees, there were many more flowers than he would ever be able to pick, and that he was working out how to plant more trees. All to no avail. The law is the law, he was told.

When he returned to the farm for his next holiday he was told about the British royal family's visit to Intabazwe (the king, queen, and their two daughters). They had been received in the town hall. And guess what? The venue was decorated with beautiful proteas, which the queen appreciated very much.

After a stunned silence, the boy asked his parents the obvious question: where did the proteas come from? They came from the same place, of course, as the small bunches of “illegal” proteas — their farm in the mountains.

Contrite parents

When asked if an exception could be made regarding the ban on the picking of proteas in view of the royal visit, the chief of police had of course given permission. How many proteas were required to decorate the town hall? The answer: a fully loaded truck, built to carry three tonnes.

Next question: are there two kinds of law, one for kings and queens, another one for young boys? Embarrassed and contrite parents: sorry son, you are right, we never should have done it.

If the rule of law had been recognised by the chief of police this would never have happened. If he had done his job properly he would have found that the proteas in question were not protected and validly belonged to the farmer, who was entitled to sell them for the benefit of his son or to donate them to the organising committee to decorate the town hall.

And who knows, that boy could have grown up to grow and supply proteas to florists around the country and the world.

• Davie is a director of the Free Market Foundation and member of its rule of law board of advisers. He writes in his personal capacity.