Structure:
Context:
The rule of law is an essentially contested concept. However, there is broad consensus as to at least its core meanings and basic elements. In the South African context, this paper investigates the application of the thin concept of the rule of law and the thick or substantive conception of the rule of law.
The South African Constitution is founded on the supremacy of the rule of law. The Constitution furthermore holds that everyone has the right to have access to adequate housing, health care services, sufficient food and water and social security.
However, despite the constitutional guarantee to social security, millions of South Africans still live in poverty. Frustration with the status quo has led to mass protest with South Africa being dubbed the “protest capital of the world”. In some instances, these protests are accompanied by violence where forced road blockages, land occupations and the burning and destruction of property, both state and privately owned occur. Reasons for the protest include demands for housing, poor service delivery, including water and sanitation, the lack of consultation and corruption. South African citizens are therefore demanding their constitutional rights but resort to violence to make their voices heard. A measurement for the rule of law in a country is to what extent agents have confidence in and abide by the rules of society. In South Africa the conundrum is therefore, citizens are demanding their constitutional rights but are violating one of the core principles of the Constitution, respect for the rule of law.
Goal:
This paper investigates whether the traditional methods of promoting the rule of law could be utilized in South Africa.
Methods:
The study comprises a critical review of relevant legislation and an examination of case law, electronic sources, textbooks and academic articles. However, the study relies heavily on South Africa‘s unique circumstances and the South African Constitution is used as the main guideline.
Two traditional approaches for strengthening the rule of law are investigated. The institutional approach and the neocultural interventionists approach are discussed and their impact on the rule of law in South Africa is investigated.
Findings:
This study finds that the institutional approach has contributed significantly to promoting the rule of law in South Africa. Courts have consistently held state actors constitutionally honest. However, despite calls to the contrary, further strengthening of the rule of law cannot be found in institutions, such as the courts. The necessity for all actors to have confidence in and abide by the rule of law requires an interventionists approach. This call for the establishment of a law culture among the everyday users of the law: “culture” must change so that it perpetuates a readiness to turn to the law and legal institutions for solutions to conflict. However, such a culture change cannot happen in isolation, an aggressive socio-economic upliftment drive must be concurrently launched. This requires the establishment of decent living conditions for as many people as possible as a prerequisite for fostering the rule of law. Although legal institutions, including the courts have a role to play, this is a task that need to be shared by the widest possible alliances of actors, including the state and state institutions, private and civil society.
Keywords: Socio-economic rights; rule of law; protest; interventionists approach.
9d. Law and sustainability
