The Rule of Law Project analyses national legislation to determine the extent to which it complies with the Imperatives of the Rule of Law. Below follows a list of analyses conducted by Project staff in alphabetical order.

A

Agricultural Pests Act (36 of 1983)

The Act provides that certain goods determined by the Minister may not be imported without a permit. An official who finds that goods have been imported without a permit may destroy the goods – with or without notice that he will do so – or compel the owner to destroy it. This violates the Rule of Law as no criteria for harmful goods is laid down, meaning even harmless goods can be destroyed without due process. In other words, the principle of rationality and non-arbitrariness is violated.

CLICK HERE for the full analysis by Gary Moore.

Air Services Licensing Act (115 of 1990)

Only South African or majority-South African-owned air services may be issued a license under the Act. However, the Act provides that the Council must exempt an applicant from this requirement if the Minister of Transport directs the Council to do so. No criteria is provided for this exemption, making it entirely discretionary on the Minister’s part. The Council itself may also exempt applicants at its discretion, and make the license subject to any conditions it deems fit. Both these provisions violate the principle that the law must apply equally, and that the law must be certain and predictable. The wide discretionary powers it bestows also fall foul of the Rule of Law.

CLICK HERE for the full analysis by Gary Moore.

B

Broad-Based Black Economic Empowerment Act (53 of 2003)

The Act prohibits dealings with a state or public body for ten years if a person has been convinced of an offense in terms of Act. This is a unusual and disproportionate punishment and thus violates the Rule of Law, and violates South Africans’ section 22 constitutional right to choose their occupation freely. The Act is also unclear in the application of this principle to juristic persons, violating the Rule of Law principle that the law should be clear.

CLICK HERE for the full analysis by Gary Moore.

C

Competition Act (89 of 1998)

The Act is rife with vague terms open to interpretation. The Competition Appeal Court agrees that the excessive price doctrine is difficult to enforce due to the controversy that surrounds it. There are no criteria which informs when a price will be excessive. The Act is vague in this regard and therefore violates the Rule of Law.

CLICK HERE for the full analysis by Gary Moore.

Currency and Exchanges Act (9 of 1933)

The Act enables the President to make regulations for anything which relates even remotely to currency, banking, or exchanges. These regulations may be applied retrospectively. The President may also suspend any part or the whole Act, or any other Act of Parliament, which relates even remotely to currency, banking, or exchanges. Acts of Parliament which are inconsistent with any presidential regulation are “deemed to be suspended.” These provisions do not only violate the Rule of Law, but also the Constitution and vast swaths of the common law legal tradition. Retrospective application of any law is generally unlawful. Law-making powers are conferred upon Parliament, not the President. The ability of the President to “suspend” (repeal) laws of Parliament is unconstitutional (regardless of what the Constitutional Court might think) and extremely wide given that any matter directly or indirectly related to currency, banking, or exchanges, are covered.

CLICK HERE for the full analysis by Gary Moore.

D

E

Electricity Regulation Act (4 of 2006)

The Act states that the Regulator is under no obligation to issue a license to a potential electricity generation, transmission or distribution facility – without criteria for refusal – meaning that the Regulator has an unfettered discretion. This violates the Rule of Law in that the discretion can be exercised arbitrarily. The Act also empowers the Regulator to make the issuing of a license subject to conditions. No bounds for the scope of conditions are set out. This violates the Rule of Law because the law must be certain, predictable, and not arbitrary.

CLICK HERE for the full analysis by Gary Moore.

F

Financial Advisory and Intermediary Services Act (37 of 2002)

CLICK HERE for the analysis on ‘undesirable business practices’ by Gary Moore.

CLICK HERE for the analysis on ‘intermediary service’ by Gary Moore.

CLICK HERE for the analysis on ‘debarring representatives’ by Gary Moore.

CLICK HERE for the analysis on ‘fit and property requirements’ by Gary Moore.

Financial Services Laws General Amendment Act (45 of 2013)

CLICK HERE for the full analysis by Gary Moore.

G

H

I

Income Tax Act (58 of 1962)

CLICK HERE for the full analysis by Gary Moore.

International Trade Administration Act (71 of 2002)

The Act gives the Minister of Trade and Industry unfettered power (no criteria) over the allowance or prohibition of importing or exporting particular goods. Courts however want to ‘defer’ (not intervene) because they see the regulation of trade as an expert activity reserved for experts (officials).

CLICK HERE for the full analysis by Gary Moore.

J

K

L

M

Meat Safety Act (40 of 2000)

The Act empowers the Minister of Agriculture to grant exemptions from standards to inter alia an owner or category or group of owners, person or category or group of persons, meaning identity (rather than circumstance) might be an allowable factor under the Act. This violates the Rule of Law and the Constitution, because laws must have general application.

CLICK HERE for the full analysis by Gary Moore.

Medical Schemes Act (131 of 1998)

The Act prohibits the registration of a medical scheme unless the Council regards such registration to be in the “public interest”. Public interest is a vague concept which often changes from court to court. No criteria are set down for the Council. Act also requires the registrar to set down conditions for registration which he “deems necessary”, which inspires uncertainty and vagueness. These provisions contravene the Rule of Law.

CLICK HERE for the full analysis by Gary Moore.

Medicines and Related Substances Act (101 of 1965)

The Act provides that medicine may not be sold for more than the Single Exit Price. However, the Act doesn’t say who is to determine the SEP, meaning that it violates the rule of law requirement that laws should be clear. If the Minister is to set the SEP, the Act is silent on which criteria the Minister must follow in that determination, which is a violation of the rule of law in that it confers an unfettered discretionary power, and is unclear.

CLICK HERE for the full analysis by Gary Moore.

Mine Health and Safety Act (29 of 1996)

CLICK HERE for the full analysis by Gary Moore.

Section 54s cost SA mines R4.8bn in 2015, and 2016 may be worse – Article by David McKay

Mine health and safety runs deep – Article by Kenneth Coster and Cameron Rajoo

Suing over Section 54: Is this a solution? – Article by Terence Corrigan

Mineral and Petroleum Resources Development Act (28 of 2000)

CLICK HERE for the full analysis by Gary Moore.

CLICK HERE for the analysis on the 2013 Amendment Bill (15D of 2013) by Gary Moore.

N

National Credit Act (34 of 2005)

CLICK HERE for the full analysis by Gary Moore.

National Electricity Regulator Act (40 of 2004)

Every decision of the Regulator has to be in the “public interest” – not capable of precise definition – confers an unduly wide discretion – thus violates the requirement of reasonable certainty as to what is required.

CLICK HERE for the full analysis by Gary Moore.

National Health Act (61 of 2003)

The Act provides that “certificates of need” are required for health facilities to do various things such as expand capacity or upgrade technology. The Minister may prescribe conditions for these certificates which relate to the particular facility in question, meaning that the equal protection of the law principle is violated. The Minister may also prescribe conditions which ensure that there is an “appropriate” mix of public and private health services. What is or isn’t “appropriate” is not defined, meaning the rule of law principle that the law should be clear and that officials should not have unfettered discretion, is violated. The Director-General is empowered to withdraw a certificate if he believes the facility is “obstructing” the State in its duty to progressively realise the right to health. The Act is silent on how a private facility could conceivably “obstruct” the State in this duty, meaning the provision violates the rule of law principle that the law should be clear and not arbitrary.

CLICK HERE for the full analysis by Gary Moore.

National Key Points Act (102 of 1980)

CLICK HERE for the full analysis by Gary Moore.

National Road Traffic Act (93 of 1996)

CLICK HERE for the full analysis by Gary Moore.

O

P

Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000)

CLICK HERE for the full analysis by Gary Moore.

Protection of Information Act (84 of 1982)

CLICK HERE for the full analysis by Gary Moore.

Protection of Investment Act (22 of 2015)

CLICK HERE for the full analysis by Gary Moore.

Q

R

Riotous Assemblies Act (17 of 1956)

CLICK HERE for the full analysis by Gary Moore.

S

South African Schools Act (84 of 1996)

CLICK HERE for the full analysis by Gary Moore.

Spatial Planning and Land Use Management Act (16 of 2013)

CLICK HERE for the full analysis by Gary Moore.

Subdivision of Agricultural Land Act (70 of 1970)

CLICK HERE for the full analysis by Gary Moore.

T

U

V

W

X

Y

Z

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The Rule of Law Project is an initiative of the Free Market Foundation (www.freemarketfoundation.com) 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.