A government unhinged

September 15, 2019 Siyabonga Mtangana

South Africa prides itself on being a nation based on the rule of law, yet we have ministers who trample the law from the moment they step into the office until the time they leave.

Read: The poison of politics is a risk to us all

This is not to unique to SA. It’s happening everywhere and appears so routine we hardly pay attention. Ministers do this by writing ‘regulations’ that far exceed the powers granted them by the Constitution of South Africa, by repeating the mantra ‘transformation’ and sometimes because there is no one to tell them when to stop. Perhaps the country is so deliriously happy to be rid of team Zuma that it is prepared to look past the systematic corrosion of the rule of law – something that preceded Zuma and has survived him.

Read: The rose-tinted blinkers approach to economic reform

Martin van Staden of the Free Market Foundation has documented some astonishing ministerial whims in a new book entitled ‘The Constitution and the Rule of Law’.

Don’t be put off by the arid title – it’s written for the lay person. But be warned: it’s not a feel-good read.

For example, the Constitution, the highest law in the land, allows for private schooling at both higher and basic levels, subject to just three conditions: they may not discriminate based on race, they must be registered with the state, and the standard of education may not be inferior to that offered in the public sector. Anyone who meets these criteria can set up a private school or university.

Yet the SA Schools Act allows provincial education ministers to set their own criteria, which is precisely what they have done. The Act clearly violates the Constitution, and no one has objected.

Power grab

In 2016, then-Higher Education Minister Blade Nzimande said government “is not keen on allowing private universities on a full-blown scale” and that private universities posed a serious threat to the public education sector. That same year, the Higher Education Amendment Act appeared, putting these airy threats into law. Henceforth, the minister was empowered to determine “the scope and range” of operations allowable by universities “in the interests of the higher education system as a whole”.

By enacting this legislation, parliament abandoned the rule of law in favour of another arbitrary power grab.

Again, there was barely a whisper of protest against this unconstitutional power grab. This all happened in the midst of the #FeesMustFall movement, which quickly morphed into a campaign for free university education and then into a campaign for an Afrocentric curriculum.

Education in SA has always hewn within strict ideological railings. Thirty years ago, it was apartheid; today it’s transformation.

Van Staden cycles through the appalling record of law-breaking ministers and parliamentarians, from apartheid times up to the present.

SA cannot escape its apartheid past. Citizens, particularly those interacting with government, are required to declare their race. Contractors, companies and service providers must delve into the minutiae of ownership and management by race if they want crumbs from the king’s table. The black economic empowerment (BEE) codes become more complex each year and need specialised consultants to interpret them – all in the name of spreading equality and in contravention of the rule of law standard.

All you need to do is tune in to the Zondo Commission of Inquiry into Allegations of State Capture to see how easily these codes are perverted.

Source: Rule of Law Project

One of the most destructive pieces of legislation on the statute books is the Mineral and Petroleum Resources Development Act (MPRDA), which contrives two sets of rights for a single property: the surface rights, which belong to the land owner, and the underground rights, which now belong to the state.

SA is not unique in claiming underground rights as property of the state, to be dished out under licence to those satisfying the BEE requirements set by government. In the name of spreading equality and fairness – laudable goals though they may be – the effect has been to chase mining investors to Ghana, Democratic Republic of Congo and other friendlier locales. SA’s share of global mining capex fell to 3% in the five years to 2017 – from 9% for the previous five years. Virtually all of this lost investment was due to uncertainties around government policy.

Civil society’s reluctance to criticise the judiciary for some of its bizarre judgments contributes to the general assault on the rule of law.

Van Staden cites one case, Agri SA v Minister for Minerals and Energy, as “one of the worst precedents set in contemporary SA legal history.”

When a court abandons objectivity …

Agri SA brought the case on behalf of mining company Sebenza, and claimed that the enactment of the MPRDA in 2002 had the immediate effect of expropriating mineral rights. Before the Act, land owners also owned the mineral rights underneath and could do with it as they pleased. Agri SA lost the case, and in the introduction to the ruling, Chief Justice Mogoeng Mogoeng lauds the Act as a “break through the barriers of exclusivity to equal opportunity and to the commanding heights of the wealth-generation, economic development and power.” (sic)

Writing the judgment on behalf of the majority of the Constitutional Court bench, he goes on to gush about the virtues of the Act, choosing words that Van Staden says may just as well have come straight out of the Department of Mineral Resources’s PR unit.

In this case the court abandoned objectivity by assuming the Act was efficient at addressing the social ills it seeks to cure. It recklessly chose form over substance, rather than substance over form. “It was irresponsible for the court to assume it as simply true that the legislation is, in reality, effective at ‘addressing’ inequality,” writes van Staden. “The rule of law requires legislation to be reasonable, which includes rationality and proportionality, meaning the court was bound to undertake a far deeper analysis of the statute to determine its efficiency.”

In far too many cases, judges have abandoned their oaths and done the bidding of the dominant political ideology.

The rule of law is senior to the law itself, since it sets parameters for law makers and judges. When this is overrun by irrationality and ideological fervour, you end up with injustice and social schism.

A companion read is Anthea Jeffery’s book ‘BEE: Helping or Hurting?’ wherein she argues that elements within the governing party are so committed to the national democratic revolution that they feel exempt from the Constitution. For them property rights are malleable, subservient to the goal of enforcing demographic representivity in every sphere of society.

Read: How SA slept through the BEE revolution

Some have argued that affirmative action is unconstitutional, because it violates the right to equality in Section 9 of the Constitution. Van Staden points out that this a misreading of the Constitution, which specifically requires positive discrimination by the government to redress historical inequalities.

He argues that affirmative action cannot be racial in nature, because the Constitution itself is founded on the logic of non-racialism.

Positive discrimination can only be constitutional when it is based on a more rational characteristic, such as socio-economic status.

The fine line between law and tyranny

The problem with the campaign to amend the Constitution to expropriate land without compensation is that all property rights are vitiated. Nothing much thereafter stands between where we are now and outright tyranny. Aware of the potential to kill the economy, government will likely tread delicately around this landmine and focus its redistributive zeal on land already owned by the state, as well as abandoned and hopelessly over-indebted land.