South African judges are not the only ones who disagree on the rule of law. The jurist Tamanaha,48 echoing an earlier and somewhat harsher commentary by Shklar,49 states: 93 An indication that the Court relies on a formal interpretation of the rule of law stems from Sachs J.A.`s observation in Port Elizabeth Municipality v Various Occupiers 2004 12 BCLR 1268 (CC)(35): „Instead of the fundamental values of the rule of law and the achievement of equality distinct from them and in Tension with PIE [Prevention of Illegal Eviction and Illegal Land Occupation Act 1998] treats these values as interactive, complementary and mutually reinforcing. The judge seems to suggest that the „rule of law“ has to do with formalities and that „the achievement of equality“ has to do with content. Michelman F „The rule of law, legality and supremacy of the Constitution“ in Woolman S et al (eds) Constitutional Law of South Africa 2nd ed (Juta Cape Town 2005) 11-1-11-42 This overview of the Court`s interpretation of the rule of law shows that the Court applies this founding value in some cases as a formal restriction and in other cases as a definition of substantive norms. At the very least, the Court considered that the rule of law meant that the exercise of violence had to be intra vires. The Court`s interpretation of the rule of law as well as the establishment of substantive norms is complex. This is reflected in its conclusion that the rule of law requires rationality, non-arbitrariness and procedural justice, as determined by the context and the direct link it has established between the rule of law and the right of access to justice. Michelman „The Rule of Law, Legality and the Supremacy of the Constitution“ Fallon HR „`The Rule of Law` as a Concept in Constitutional Discourse“ 1997 Columbia LR 1-56 The rule of law as formal legality deals with the nature, form and procedures of law, as noted above. The principles of natural justice, which are generally understood as shaping this view of the rule of law, require the application of the law in one or more „open and fair hearings“ and the absence of bias on the part of the decision-maker (the judge).63 A person tried by a court has the right to present his or her case before the verdict is pronounced.
This requirement of procedural fairness as an aspect of legality has not been limited to judicial proceedings.64 It is generally accepted that the rule of law requires respect for this principle with regard to administrative decisions. In a case where the right to procedural fairness is extended to executive decision-making, it has been recognized that the facts of the individual case will determine the extent of procedural fairness required.65 When this occurs, legality will be extended to allow context-specific considerations in determining the scope of the rule of law. 66 This means a shift towards a more substantial interpretation of the rule of law. Fortunately – or unfortunately – the Constitutional Court`s decisions in the Masethla case are less romantic than a Bond story, but they are no less dramatic. For constitutional scholars, the concrete statements of judgments on the scope of the rule of law as a fundamental constitutional concept are of great importance. The majority of the Court interpreted the rule of law restrictively, while the minority opted for a broader interpretation, which included procedural fairness as a restriction on the exercise of official authority. Craig P „Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework“ 1997 Public Law 467–487 Moseneke DCJ`s interpretation of rationality as an aspect of the rule of law encompassed both formal and material elements and combined these aspects unsuited to the Court`s previous interpretations. For Moseneke DCJ, the requirement of rationality meant that there had to be a rational connection between the exercise of power and the purpose for which that power was given. But an important consideration for the judge was the nature of the power exercised; And here is the difficulty with this judgment. The Moseneke DCJ judgment can be interpreted as excluding procedural fairness in all respects from the exercise of all executive powers. It is true that Moseneke DCJ relied on the national security context to reach his conclusion, but in doing so he has repeatedly stated that the president`s executive power is limited only by legality and rationality; Constraints which, in his view, excluded the requirement of fairness from the proceedings.
According to Moseneke DCJ, legality, rationality and procedural justice are separated as restrictions on the exercise of power. This approach is not consistent with the Court`s previous statements and, if not read in context and carefully, could set a dangerous precedent that would significantly reduce restrictions on the exercise of executive power and could undermine the predominance of the Constitution in this regard. The last formal conception of the rule of law, which is „thicker“ than those discussed above, is the idea of the rule of law, which requires legality and democracy.69 In this interpretation, the rule of law requires people to accept the laws that govern their lives, and to do so through the democratic process.70 This view of the rule of law is limited by its emphasis on how it focuses. on how she is right to do so. in which the law is adopted and the legitimation of the law through the democratic process. Democracy does not guarantee „good“ or just laws.71 86 NICRO para. 21. This vision of the structure of the Constitution, which calls for the interpretation and application of the Bill of Rights, is supported by Woolman. See Woolman 2007 SAL 762–763. See also Roederer „Founding Provisions“ 13-30, who reads Michelman to interpret cc jurisprudence on the rule of law as advocating a „right to legality.“ 119 See, for example. B, lord Parker of Waddington`s remark in The Zamora [1916] 2 AC 77 107: „Those responsible for national security must be the sole judges of what national security requires.“ See also Council of Civil Service Unions v United Kingdom [1987] ECHR 34 and Jowell „The rule of law today“ 17. Some judgments of the Court also comment on the link between the rule of law and specific human rights, suggesting a more substantial interpretation of this value, as discussed above.
In Chief Lesapo v North West Agricultural Bank,113 Justice Mokgoro noted that the principle against self-help is an aspect of the rule of law.114 Laws that allow self-help therefore violate not only the right of access to justice, but also „a deeper principle.“ [lying] our democratic order“.115 In Modderklip,116 this link was confirmed,117 and perhaps even developed by Langa ACJ: Our employees and core business contribute to advancing the rule of law What should we think of this uncertainty? Should the rule of law be interpreted restrictively as excluding procedural justice, or should we continue to interpret this constitutional ideal and this practical coercive mechanism to demand respect for fundamental fairness in the exercise of any public authority? In cases where the examination of procedural fairness is a prerequisite for the rule of law, the Court has opted for a contextual, i.e. more substantial, interpretation of the rule of law […].
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