RULE OF LAW PROJECT
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MESSAGE FROM THE CHAIRMAN
MESSAGE FROM THE CHAIRMAN
There are two related issues of government policy that arose during the course of the past year that require the close attention and, it is suggested, the active resistance of the Rule of Law Board of Advisors. In each case the government has proceeded, or obviously intends to proceed, with its action oblivious to the violations of the rule of law inherent in its conduct.
The first is a legislative programme, already implemented with little or no resistance from the professional bodies most intimately concerned, and the second is the not yet implemented policy for the expropriation of private property without compensation.
The programme already implemented is the Legal Practice Act which abolishes the separate independent professional bodies representing the advocates and attorneys’ professions, and replaces them with a single entity, nominally representing the distinctive characteristics of each, in a partially elected and partially nominated entity under the ultimate authority of the Minister of Justice.
This Act represents an important erosion of the integrity of the professional structures upon which the independence of the judiciary ultimately depends. It is also consonant with the policy of the ruling party to “bring the levers of (state) power under hegemonic control”. If the purpose of the Act, and its inevitable implementation, is seen in conjunction with the stated purpose of the governing party, its objective becomes abundantly clear: To subvert the rule of law by the subversion of the independence of the professions upon which the fidelity of the judiciary depends.
Whatever may be said of the Legal Practice Councils that have been established in consequence of the Act, they do not replicate the independence of the bodies they have been established to replace. If the training ground of those who will ultimately occupy judicial office loses its independence it is inevitable that those who are trained in this way will have no innate affinity for this quality. The ethos of independent thought and conduct will be lost.
Because there has been no resistance to this law by the professional bodies most intimately concerned, and because the legislation represents such a profound threat to the independence of the judiciary, the Board has resolved to take the initiative and launch legal action to challenge the lawfulness of the Legal Practice Act. Action has consequently been taken to assemble an appropriate legal team to initiate this challenge.
The proposal for the amendment of the Constitution to permit expropriation of property without compensation has received much critical comment, but not for the reason most immediately the obstacle to its enactment. A lot has been written and said about the method by which the two-thirds majority might be obtained, but comparatively little about the actual requirement for a 75% majority, stipulated by the Constitution for an amendment of this kind.
The legislators, and the critics, have misconceived the true nature of the proposed amendment, which is not merely an amendment to a provision contained within the Bill of Rights, although it does bear the hallmarks of such an amendment. The true nature of the proposed amendment can only be detected if it is borne in mind that the curtailment of the right to private property is a violation of the rule of law.
Any legislative violation of the rule of law requires an amendment to a founding provision of the Constitution and the requisite majority for such action is not merely two-thirds, but 75%. Although there has been some commentary on this requirement, significantly by Prof Robert Vivian, the matter has received scant attention from the media.
There is an initiative by Accountability Now to interdict the proposed legislation on the basis that the parliamentary select committee tasked with drafting the bill has already been forewarned about the procedural obstacle, but has continued, stubbornly, with preparations for the deficient procedure.
The prospect of an interdict is hindered by the judicial requirement that legislation that is merely in prospect will not be interdicted unless there exists “special circumstances” to justify such action. Due to the radical nature of the proposed legislation and the dire consequences for the whole of the country if the proposal should become law (albeit a fatally deficient one), a persuasive argument could be advanced for the existence of such “special circumstances”.
The Rule of Law Board has not yet considered its response to these matters, but it will be doing so early in the new year.
Issues of the kind described in this report are the principal reason for the creation of the Rule of Law Project, but cannot be undertaken without the necessary financial support from outside sources. This is also a matter that will receive greater attention in 2020.
Martin van Staden is congratulated for the publication, during the year, of his excellent book titled The Constitution and the Rule of Law: An Introduction.
Rex van Schalkwyk
Chairman of the
Rule of Law Board of Advisors
and former judge of the
Supreme Court of South Africa
Gary Moore produced 4, Martin van Staden 2, and Mark Oppenheimer 1, research documents.
“Prepared” can also mean “contributed to”.
Martin van Staden prepared submissions on 3 and Gary Moore on 2 bills.
FMF events at which the Rule of Law was covered as a topic in whole or in part.
Martin van Staden presented at 2, Rex van Schalkwyk at 1, Leon Louw at 1, Chris Hattingh at 1, Mark Oppenheimer at 1, and David Coltart at 1, events.
FMF media coverage in which the Rule of Law or an aspect thereof was the dominant theme.
Martin van Staden published 4 media releases, 20 articles and participated in 7 television and radio interviews.
Jayne Boccaleone published 5 media releases.
Gary Moore and Chris Hattingh each published 5 articles.
Mpiyakhe Dhlamini published 3 articles.
Leon Louw participated in 3 television and radio interviews.
Rex van Schalkwyk published 2 articles and participated in 1 radio interview.
Robert Vivian and James Peron each published 2 articles.
Eustace Davie, Jasson Urbach, Johan Serfontein, Matthew South, Mugabi John Socrates, and Jacques Jonker each published 1 article.
The RoLP filed 1 amicus brief, participated in 1 World Justice Project survey, and published 1 book.