All law must be clear, predictable, accessible, not contradictory, and shall not have retrospective effect.

OVERVIEW

The Rule of Law requires clarity in the formulation of all law so that the imperatives of the law are readily understood by the citizens. Law that causes confusion in the mind of those who are subject to its requirements violates the Rule of Law.

ELEMENTS OF THE IMPERATIVE

Clarity – For law to be legitimately enforceable, it must be knowable. An example of uncertain law would be a provision which stipulates that “…one may not loiter after sunset.”  It is unreasonable to expect obedience to law that is ambiguous or variable.

Predictability – The central purpose of law is to make it possible for individuals, who frequently come from diverse communities, to live together in a common society. The law is therefore always a restraint (in the common interest) upon the individual to conduct himself as he pleases. The law must therefore serve the purpose of the larger common interest. It is the purpose of the Rule of Law to ensure that this objective is achieved without the creation of undue hardship. If it is not readily apparent what the purpose of a particular law is, the law fails in its obligation to the community whose purpose it is to serve. Law, which does not bear the hallmarks of state compulsion has the purpose of the facilitation of social interaction, for example, the Law of Contract facilitates commercial exchange.

Accessibility – The law must be crafted in such a way that its purpose as well as its demands are readily understood. Obscure and incomprehensible demands cannot be legitimately enforced. The law itself, i.e. the text of legislation and pronouncements of superior courts, must also be accessible and readily comprehensible.

Non-contradictory – When two or more laws are contradictory, the citizens cannot be expected to know which to obey and are then justified in asserting that obedience is practically impossible.

Retrospectivity – Retrospective law would make unlawful conduct which was lawful when it was performed. It is self-evident why retrospective legislation offends against the principles of elementary justice.

RELEVANT JURISPRUDENCE

Core – Sections 32(1), 33(1), 33(2), 195(1)(g) of the Constitution.

Supporting – Sections 1, 2, 7(1), 9(1), 10, 12(1)(a), 41(1)(c) of the Constitution.

 

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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.