SOUTH AFRICA AND THE RULE OF LAW

It is a great pleasure for me to be able to address you this evening on the rule of law - a topic on which the future success of South Africa so closely depends. As you know, I also am a lawyer and continue to enjoy the company of lawyers and the cut and thrust of debate on legal issues. The topic of my speech tonight is one such issue. In our case it is, I believe, central to the continued success of our brave venture in multiracial democracy. Forgive me then if I lapse from time to time into legalese. The source of much of the injustice that afflicted South Africa before 1994 often lay in the absence or dilution of the rule law. The white parliament was sovereign and could - and did pass - any law that it liked.

• There was no Bill of Rights to protect the weak and disenfranchised majority.
• There were no provisions to set standards and values that would direct and limit the power of the government.
• The judiciary had only limited ability to defend and enforce the rights of citizens.
• The role of the courts was restricted to determining whether actions or procedures of the executive were bona fides and in accordance with the unrestrainable laws adopted by a sovereign Parliament.

Against this background I want to put the record straight on a fundamental issue. There is a common misconception that South Africa's peaceful transition, merely, involved the transfer of power from the old National Party government, that I headed, to the new ANC government headed by Nelson Mandela. In reality it involved so much more. From a constitutional point of view, what was involved was the transition from a system where parliament was supreme, to a system where the constitution itself - and not this or that political majority in parliament - was supreme. This principle is enshrined in Section 2 of the 1996 Constitution. It proclaims that this Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."

In essence, the rule of law means exactly this. In South Africa values on which our rule of law is based, the goals toward which it aspires, and the institutions by which it must be upheld, are all spelled out in detail in our Constitution. They include:

• the supremacy of the law and the Constitution;
• the separation of powers;
• the independence of the judiciary; and
• the protection of fundamental rights.

South Africa's peaceful transition rested squarely on the premise that, in the proposed non-racial democracy, arbitrary rule by the executive and parliamentary majority would be replaced by the rule of law. The National Party government would exchange its overwhelming monopoly of power for a genuine non-racial democracy - on condition that the reasonable rights of its constituency and the preservation of genuine democratic institutions would be assured by a strong and justiciable Constitution and Bill of Rights. The Constitution and Bill of Rights would, in turn, be enforced by an independent, impartial and competent judiciary, including a Constitutional Court. The essence of the negotiations centred around the search for a balance between the interests of the previously disadvantaged majority and those of the previously dominant minority. The aim was the construction of an enduring non-racial democracy based on the rule of law.

The constitutional agreements that the parties ultimately reached consequently included carefully crafted balances:

• between the need to promote equality on the one hand and the need to prohibit unfair racial discrimination on the other;
• between the need to recognise cultural and linguistic diversity, and the need to promote national unity; and
• between the need for land reform, and the need to protect property rights.

However, many of these rights were delicately balanced in the 1996 Constitution. The role of the courts in interpreting and enforcing the Constitution has accordingly assumed an importance and centrality upon which the whole edifice of our new non-racial democracy stands or falls. All this came to fruition. All of the principal parties to the negotiations agreed on the need for a state based on the rule of law; a strong justiciable constitution and an independent judiciary.

It started with an Interim Constitution agreed to in 1993. This Interim Constitution contained a number of immutable Constitutional Principles according to which the final constitution would be written. These included the provision for:

• the separation of powers;
• appropriate checks and balances to ensure accountability, responsiveness and openness; and,
• a judiciary that would be "appropriately qualified, independent and impartial" and that would have "the power and the jurisdiction to safeguard and enforce the Constitution and all fundamental rights."

These constitutional principles were fully accommodated in the 1996 Constitution. They have served the new South Africa well. In this time of gloom and despondency it is important to remember the impressive progress that we have made in so many areas:

We produce 45% of the GNP of sub-Saharan Africa.

We have rejoined the international community. Our country is widely respected and plays a leading role in promoting the well-being of our continent.

There are more foreign embassies in Pretoria than in any other capital in the world with the exception of Washington.

Our sportsmen and women have attained new heights in international competition: we are the rugby world champions - again; we are the top one-day international team in world cricket.

Our country has become an increasingly popular tourist destination - and tourism now contributes 8% to our GNP - as much as gold. Some of our restaurants and hotels are counted among the best in the world in international surveys.

Our car and truck industry also contributes about 8% of GNP - with exports of the highest quality, from Mercedes-Benz and BMWs to Volkswagens and Fords, to countries all over the world.

Those who are so quick to think that the grass is always greener on the other side of the fence would do well to consider that according to a recent survey three South African cities - Cape Town, Johannesburg and Port Elizabeth - are regarded as being among the best 100 cities in the world in which to live.

More importantly, life is getting better for more and more South Africans. According to the Financial Mail the black middle class grew by 30% in 2005 - adding another 421 000 adults to our middle-income group. The growth of the black middle class is not only a spur to consumer growth in general - it is also a major factor in promoting stability.

However, it is not only the black middle class that has benefited from the new South Africa. Since 1994 we have been building an average of 500 houses per day - most of them for disadvantaged communities. Huge progress has also been made in bringing electricity and water to South African households which did not have it in the past.

Finally, despite the occasional incident - such as that at the University of the Free State three months ago - we have managed the transition to multiracial democracy with surprising ease and goodwill. Our schools, universities, companies and social facilities have all been integrated with remarkably little trouble.

However, all these achievements are dependent ultimately on our ability to abide by the Constitution and the rule of law. Following the ANC's Polokwane Conference in December last year we have entered a period of uncertainty. Perhaps these jitters are just part of the anxiety that accompanies change in all emerging democracies. Nevertheless, some of the concerns regarding the future of the rule of law are well motivated, if one takes decisions that were taken at Polokwane into account. They inter alia relate to:

• the new leadership;
• the disbanding of the Scorpions;
• accelerated land reform;
• proposed reforms of the judicial system; and,
• measures which might impact negatively on the freedom of speech.

The next eighteen months will be critical in determining whether South Africa will abide by its liberal constitution and the rule of law - or whether it will deviate from the principles that have thus far served it so well. The following issues will, in particular, be litmus tests for our commitment to the rule of law:

Will Jacob Zuma's trial proceed freely, fairly and without any extraneous interference?

Will the new priority crimes unit that the Police intend to establish to replace the Scorpions, continue to investigate crimes and corruption in government and political circles with the same independence, zeal and success that were often manifested by the Scorpions? In particular, will it continue with the investigation and prosecution of Jackie Selebi, the Commissioner of Police - and with investigations into allegations of corruption related to arms procurement?

Will the Government proceed with the adoption of the Expropriation Bill that is presently before Parliament? A Bill that has the following disturbing implications:

• the state will be empowered to expropriate virtually any property if it deems the expropriation to be in the "public interest";
• compensation for expropriated property will henceforth be determined by executive diktat;
• market value will be downgraded as a factor in deciding compensation; and
• expropriated owners will have only limited effective recourse to the courts.

Will the government proceed with the re-introduction of legislation to reform the judiciary that was vehemently criticised when it was first introduced two and a half years ago? The 2005 Constitution 14th Amendment Bill was roundly castigated by most judicial experts, including George Bizos and former Chief Justice Arthur Chaskalson. The International Bar Council expressed the following concerns regarding the proposed amendments:

• they deprived the courts of the responsibility they should properly have over relevant administrative and budgetary issues;
• they gave the Minister of Justice too great a degree of control over the appointment of acting judges on the Constitutional Court; and,
• they restricted the ability of courts to grant just and equitable relief.

The IBA warned that political interference with the Judiciary by the Executive was one of the greatest threats to a liberated society. In its opinion the amendments proposed by the government operated individually and collectively "to encroach upon the fundamental principle of the separation of powers and the independence of the Judiciary".
Finally - and perhaps most importantly - will the government be able to curb violent crime and the type of mindless xenophobic violence that we have witnessed in recent weeks? The statistics seem to indicate that the Government is very slowly beginning to reduce crime; however, the experience and perceptions of all sections of the population point in the opposite direction.

I believe that the following factors will play an important role in determining whether we stay on the high road of constitutionalism and the rule of law - or whether we stray into the minefields of unrestrained executive power.

The first is the degree to which the pragmatists or the ideologists determine the ANC's agenda during the coming years. Fortunately, the ANC has often showed a keen awareness of the importance of practical success and of adhering to the global consensus - even when this has involved sharp deviations from its ideological programme.

The new leadership of the ANC has, on numerous occasions, reiterated its respect for the rule of law and for the Constitution. It has reiterated its long-standing commitment to "the fundamental provisions of the basic law of the land" which, it says "accord with its own vision of a democratic and just society".

The ANC insists that it has "set out to implement both the letter and the spirit of the Constitution, including such principles as multi-party democracy, the doctrine and practice of separation of powers in a constitutional state, fundamental human rights to all citizens, respect for the rights of linguistic, religious and cultural communities, and social equity".

However, it has made all these commitments within the ideological "context of correcting the historical injustices of apartheid". The question is whether the ANC's brand of economic, political and social transformation takes precedence over its commitment to the Constitution.

The second factor in upholding the rule of law will be the degree to which our increasingly representative bench will exercise its crucial role, independently, impartially and in strict accordance with the Constitution and the law.

We have made substantial progress with the transformation of our judiciary. In 1 994, only three of the 166 superior court judges were black. By 2005 whites comprised 108 of the 198 superior court judges - slightly more than 54% of the total.

However, the source from which judges were traditionally appointed was the pool of Senior Counsel. This pool continued to be overwhelmingly white. In 2005, according to the General Bar Council, 90% of the 324 silks were white and whites comprised 86% of advocates with more than 5 years service and 59% of the remainder. Little wonder, therefore that the Judicial Services Commission had to look to other sources for the new black judges required to redress the skewed demographic composition of the bench.

One of the crucial tests will be the degree to which this new generation of judges will be able to resist ideological calls that they should be accountable to "the masses who liberated South Africa from white domination" and that they should be "inspired by their hopes, dreams and value systems". The hopeful reality is that when competent and principled judges are appointed, they very soon begin to take themselves and their crucial role seriously - often to the intense disappointment of the governments that appointed them.

The third factor in upholding the Constitution and the rule of law will be the role that civil society can and must play. There are many organs of civil society that are acutely aware of the issues involved and the stakes for which we are playing.

My own Foundation's Centre for Constitutional Rights is working ceaselessly to monitor developments that might affect the rule of law. It is participating actively in the increasingly voluble public debate on constitutional issues; it has made numerous submissions to parliamentary portfolio committees; and it is helping South Africans to claim their constitutional rights through the provision of legal opinions and participation in the Constitutional Court. I remain personally 100% committed to upholding the historic national accord that I helped to negotiate between 1 990 and 1 996.

A fourth factor will be the role of the international community. We trust that our friends overseas will continue to take a benign interest in our affairs and that they will support the maintenance of the rule of law with the same vigour as they criticised its absence in the past.

These, then, are the factors that will determine South Africa's future as a constitutional state during the coming critically important 18 months. Our Constitution is very clear on the issues involved. Section 1(c) states unequivocally that the new South Africa is founded on the ‘supremacy of the constitution and the rule of law'. Upon this simple premise rests the future of the great national accord that South Africans reached with one another between 1990 and 1996. Upon it depends the continuation of the South African miracle and the future happiness, prosperity and success of our country and all its people.