The Evolution of the Constitutional Law Principle of the ‘Rule of Law’ in the South African Constitutional Court

Abstract

South Africa’s transition to constitutionalism in 1994 signalled a change in the regulation of state authority and encapsulates the promotion of the fundamental values and principles of the new dispensation. These principles entail the rebuilding and re-affirmation of public trust and confidence in the functioning of the judiciary. On the other hand, the judiciary, especially the Constitutional Court that is the focus of this paper, is required to ensure the promotion of the principles, which include the rule of law, constitutionalism, and the separation of powers, democracy, and accountability. These are basic principles that have a direct bearing on the restoration of the credibility of the judiciary in relation to the manner in which it executes its function within the framework of the new constitutional dispensation. This role is entrenched in the 1996 Constitution, which affirms the independence of the judiciary and non-interference in the execution of its functions. Against this background, the paper examines the judicial development of the constitutional law principle of the ‘rule of law’ in the regulation of state authority  by focusing on selected judgments of the Constitutional Court. Although the principle of the rule of law itself is broad, the objective is to establish a deepening of the general principles of constitutional law through the process of judicial review. Our use of the judgments of the Constitutional Court is motivated by its relative infancy in terms of shaping the principles of the new constitutional order and the concept of the rule of law, which are the founding values of the new dispensation and which serve as a mechanism for regulating government conduct. The intention is not to trace the history of the Court and/or exhaustively review its judgments  but to identify a few cases that support the gist of the argument made in this paper.