President Jacob Zuma has referred the Petroleum Resources Development Act back to the National Assembly saying that it “did not pass constitutional muster”. The FMF, along with other commentators, had questioned the constitutionality of the broad discretionary powers which the proposed legislation granted to the mineral resources minister. Unrestricted discretionary powers are in conflict with the rule of law and the President is to be commended for refusing to sign such legislation into law.

President Zuma’s action is especially commendable given the support for the Bill of his own party and virtually all other parties and role-players. It is reminiscent of President Mandela’s rejection of three bills for the same reason. He referred them to the Constitutional Court and all three were found to violate the Constitution and the rule of law.

The rule of law is a binding “Founding Provision” of our Constitution with which all South African laws, policies and procedures must comply. Despite being in the first section of our Constitution, few are aware of it, and it is being increasingly overlooked.

Section 1(c) enshrines the “supremacy of the Constitution and the rule of law”. Despite its pivotal importance for South African law, there is little understanding, even amongst law-makers, of what it means. This is a legacy of apartheid, which was possible only to the extent that the rule of law was violated. True transition requires the cultivation of a clear understanding of what the rule of law means in practice; its implications for conceiving of, drafting and implementing legislation, regulations and policies.

The “rule of law” is distinguished from the “rule of man”. What that means is that everyone’s rights and duties must be readily apparent from the law and not subject – or subject only in exceptional circumstances – to discretionary power. It also means that substantive laws must be made by an elected, transparent and accountable legislature. They must be executed by the executive, and adjudicated by an independent judiciary. Regulation – sometimes called “subsidiary legislation” inappropriately – should not be thought of as an alternative way of making laws.

Power should be delegated only to the extent needed to execute and implement substantive law (legislation and common law).

The challenge facing South Africa is to have a fundamental break from the apartheid-era mindset in which there was no constitution requiring adherence to the rule of law – parliament was sovereign; it is now an organ of state. A tradition was established according to which almost all legislation amounted to a delegation of illegitimate power to the executive. The three basic functions of government – legislative, executive and judicial – were systematically conflated into an omnipotent, and consequently abusive executive. The legislature, and thus elected and supposedly accountable politicians, became increasingly marginalised and irrelevant. The legislatures at all three levels – national, provincial and local – merely “rubber-stamped” whatever the executive, usually a single minister, wanted. South Africa’s transition has been an extraordinary process, often called “the miracle of transition”. By observing that it is incomplete, I do not trivialise it. On the contrary, it will be undermined if it is not completed by a change in mindset that translates the Constitution and the values that inform it into a living reality, where there is spontaneous recognition of measures that are inconsistent with the rule of law in particular, and other constitutional provisions and values in general.

Apart from the philosophical reasons for this “separation of powers”, to prevent the over-concentration of power, there are profound practical reasons for it. The legislature operates in accordance with elaborate procedures prescribed by the Constitution, and followed according to Parliamentary convention. These procedures are appropriate for law-making in a democracy. They ensure transparency, accountability, debate, participation and due consideration. They ensure that substantive laws are made by elected politicians.

Regulations, on the other hand, can be gazetted arbitrarily. That they are sometimes preceded by public discourse, or presented to the cabinet, is a matter of discretion, not a requirement of the Constitution generally or its rule of law provision. For this reason regulations should be confined to formalistic measures needed to implement substantive legislation adopted by legislators.

A second practical reason for rigid adherence to the separation of powers principle is that it is the only sustainable way to contain the natural propensity of officials to draft laws that, over time, shift power from politicians to officials. Their spontaneous inclination is to promote their interests, namely to formulate laws that enhance their powers, status and incomes. Doing so gradually transfers the de facto legislative function from politicians and parliament to the executive, thus eroding democracy itself. Only if there is critical awareness and vigilance amongst politicians, will the erosion of their powers, the rule of law and democratic values be averted. Most mature democracies and, increasingly, developing countries, ameliorate the problem by having all laws drafted and screened by an autonomous central drafting agency, with trained experts in Constitutional Law.

The third practical reason for strict adherence to the separation of powers doctrine is that executive discretion is the main cause of real and suspected abuse of power, especially corruption. It necessarily generates intolerable and irresistible opportunities and temptations for the abuse of power. The failure to recognise this in South Africa virtually all less developed countries is the principal reason for disproportionate levels of corruption in the third world.

There is no rigid or obvious boundary between legitimate legislation and regulation. But there are clear values and principles embodied in the rule of law that should be appreciated, respected and observed automatically; as a national mindset or ethos. Regulators – usually ministers in their executive capacity – should not “sail close to the constitutional wind”. They should not get away with as much as they can. There is no need for regulations to test the limits, and they should seldom if ever be the subject of legitimate constitutional challenge. Acts should be drafted so as to contain all substantive law. Legislators must decide and debate in public what laws they want. Excessive discretionary power is undesirable in practice. It is an inferior way of making law. It is unsound philosophically; at variance with democratic values.

The separation of powers component of the rule of law has two dimensions. It prescribes and proscribes what may or must be in statutes, on one hand, and in regulations on the other. A statute or a regulation may be ultra vires, the former for one and the latter for two reasons. If an Act purports to delegate more power than allowed, it is, to that extent, unconstitutional, regardless of whether the power delegated putatively is used by the executive. Regulations are unconstitutional if they exceed what is authorised by their parent statute, and, even if they accord with it, they are unconstitutional if the delegated power is excessive or ambiguous.

Author: Leon Louw is the Executive Director of the Free Market Foundation. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation.

Written by Leon Louw, Executive Director of the Free Market Foundation