Former judge discusses how rule of law has been flouted in South Africa

The Free Market Foundation hosted a discussion in Bryanston with former Supreme Court judge Rex van Schalkwyk to discuss how the rule of law has been flouted in South Africa.

Van Schalkwyk, who is also the chairman of the Free Market Foundation Rule of Law Board of Advisors, said while the rule of law did not have any one definition, a phrase that captures the essence of the rule of law for him was, ‘The accountable ruler’.

This definition essentially means that no person is above the law, including politicians regardless of their position in the government.

“It will be understood that in every well-ordered state, the ruler is subordinate to the law and this is because in a properly functioning democracy the ruler of the government is subordinate to the people,” he said.

He discussed recent findings by the Free Market Foundation which demonstrated that government and particularly parliament have abandoned the founding values of the Constitution and showed a systematic violation of the rule of law.

“If parliament says that they have an act then the director general or someone duly appointed by the minister will have the power to regulate certain aspects in order to ensure that bill is put into effect.”

However, he added that in a situation where regulations were put in place, they needed to be clearly defined and understood and the purpose for those regulations should be outlined.

“Otherwise one is confronted by lawmaking by decree and that is a problem that we’re confronted with in South Africa because there is more and more regulation that is open-ended.”

One such example that Van Schalkwyk mentioned of lawmaking by decree was the Schools Act of 1995 which empowers the MEC to close a school temporarily.

Gary Moore, a researcher for the foundation, found that in 23 pieces of national legislation analysed, 22 were drafted with no apparent concern for the rule of law. Van Schalkwyk added that while these did not necessarily represent all legislation it was still a significant result.

“The more we undermine the economic well-being of the country like we have systematically done over the last eight years, the more everybody will pay the price, we pay the price in inflation, in the diminishing value of the rand which immediately impacts the cost of fuel,” Van Schalkwyk concluded.

Details: Free Market Foundation 011 884 0270.

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