Annual Report (2018)



(Abridged version)





In the utopian society; one in which governance is administered with a light hand and with an abiding commitment to the primacy of individual liberty, the rule of law is not heard. This is not because the rule of law is not acknowledged but because it is inherent in the principle of liberty. The rule of law is everywhere present, but unproclaimed: the free society is synonymous with the rule of law.

It is in the unfree society that resort to the rule of law must be relentlessly and emphatically asserted. An axiom may be derived from these observations: the less free the society, the more persistent the violation of the rule of law, and the more pressing its assertion becomes.

Under the increasingly pernicious governance of the past decade, and more, the South African polity has manifested an increasingly reckless disregard, in the executive, the legislative and administrative branches of government, for the rule of law. Sadly, the courts have also been remiss in their failure consistently to have enforced compliance.

The process, which involved always a failure of accountability, began, at first surreptitiously, and then brazenly and finally, with impunity. This resulted in the inevitable criminalisation of the state. The redemption can now only be achieved through a tireless enforcement of the law and a meticulous compliance with the imperatives of the rule of law. This must involve an acknowledgement of the primacy of the liberty of the individual. It should be evident that the expropriation of private property without compensation will only accentuate the criminalisation of the state and retard any progress towards its redemption.

If politicians are truly concerned about the wellbeing of the community they are employed to serve, their primary objective must be the pursuit of individual liberty. All the empirical evidence demonstrates this connection. In doing so, the rule of law would be served, and the prosperity of the society assured.

Rex van Schalkwyk

Chairman of the
Rule of Law Board of Advisors
and former judge of the
Supreme Court of South Africa



Gary Moore conducted research on the use of reverse burdens of proof in legislation, statutory delegation to the executive of broad law-making powers, and whether expropriation without compensation would violate South Africa’s treaty or international law obligations. He also produced 11 research documents covering 11 pieces of national legislation. All 11 Acts were found to violate an imperative of the Rule of Law.

Martin van Staden wrote a case note on Marshall v SARS (CC).


“Prepared” can also mean “contributed to”.

Martin van Staden prepared submissions on 9 bills, 1 regulation, and 3 policies.

Eustace Davie prepared submissions on 4 bills and 1 policy.

Gary Moore prepared submissions on 1 bill, 1 regulation, and 1 policies.

Jasson Urbach prepared submissions on 2 bills.

Richard Grant prepared a submission on 1 bill.

Leon Louw prepared a submission on 1 bill.

Robert Vivian prepared a submission on 1 bill.



FMF events at which the Rule of Law was covered as a topic in whole or in part.

Martin van Staden presented at 4 events.

Leon Louw presented at 2 events.

Eustace Davie presented at 2 events.

Temba Nolutshungu presented at 2 events.

Rex van Schalkwyk presented at 1 event.

Robert Vivian presented at 1 event.

Phephelaphi Dube presented at 1 event.

Evan Bradley presented at 1 event.


FMF media coverage in which the Rule of Law or an aspect thereof was the dominant theme.

Martin van Staden published 4 media releases, 26 articles and participated in 4 television and 12 radio interviews.

Eustace Davie published 5 articles and participated in 2 radio interviews.

Leon Louw participated in 1 television and 3 radio interviews.

Jayne Boccaleone published 10 media releases.

Robert Vivian published 3 articles.

Gary Moore published 2 articles.

Ivo Vegter published 2 articles.

Mike Settas published 1 article.

Cecelia Kok and Mark Oppenheimer published 1 article.

Christo Hattingh published 1 article.

Roan Stoop published 1 article.


Rule of Law Project website

The Rule of Law Project website is now live and available for public consumption:

World Justice Project Rule of Law Index 2018

Martin van Staden completed the World Justice Project’s survey for the 2018 Rule of Law Index on behalf of the Project.

Rule of Law questionnaire

The Rule of Law questionnaire prepared in 2017 was circulated to a select list of advocates. It will be circulated again in 2019.

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The Rule of Law Project is an initiative of the Free Market Foundation ( and is dedicated to giving substance to section 1(c) of the Constitution of the Republic of South Africa, which provides for the supremacy of the Constitution and the Rule of Law.

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