This essay is about the rule of law, and addresses the following aspects:
1. the rule of law during the era of parliamentary sovereignty under colonialism and apartheid in South Africa (1909, 1961 and 1983) (300 words);
2. the relationship between the rule of law and democratic constitutionalism ...
Course : PVL1003W – Foundations in South African law
Essay question :
This essay has been set by Prof Jaco Barnard-Naudé & Ms Mathabo Baase
Prof Upendra Baxi writes that ‘[c]onstitutionalism, most generally understood, provides for structures, forms, and
apparatuses of governance and modes of legitimation of power’. He goes on to suggest that ‘constitutionalism is
not all about governance’, because it also provides ‘for ideas and practices concerning justice, rights, development
and individual / associational autonomy’. From this point of view, Baxi rejects what he calls the ‘modern
superstition’ that constitutionalism is nothing more than ‘a legacy of colonialism’. (U Baxi ‘Chapter 28: Postcolonial
legality’ in H Schwarz and S Ray (eds) A companion to postcolonial studies 540 at 540.)
In a similar vein, Heydenrich has recently argued that the South African Constitution ‘needs to be understood
in a way that acknowledges and addresses the legacies of modernity and coloniality taking South Africa constantly
and ever changingly forward into a world beyond coloniality’. (PW Heydenrich ‘Constitutionalism and Coloniality:
A case of colonialism continued or the best of both worlds’ (2016) New Contree 116 at 131).
The enactment of the post-apartheid Constitutions marked the end of a prolonged period of violent
confrontation between oppressive colonial, imperial and apartheid governments, on the one hand and, on the
other hand, revolutionary forces inspired and driven by the ideal of freedom and human rights for all. As such, the
South African Constitution represents a peace treaty, one that has been described as inaugurating an era of
‘transformative constitutionalism’. The transition from apartheid to a post-apartheid legal order has also been
described by former Constitutional Court Justice Laurie Ackermann as a ‘legal revolution’.
You are required to write an essay of no more than 2 000 words (including footnotes, excluding the
bibliography) in which you focus on the rule of law.
• Your essay should make an argument and should not amount to a mere description or summary of the history of the
rule of law in South Africa.
• Your argument must be motivated and substantiated – tautology (eg ‘the rule of law is a colonial construct because
the rule of law is a colonial construct’) will not earn any marks and merely pointing out the differences between the
colonial-apartheid constitutions and the post-apartheid constitutions will also not earn any marks.
• Your essay should begin with a clear and succinct introductory paragraph of what your argument (thesis) is and
of how you are going to motivate / substantiate the thesis. For example: ‘In this essay I will contend that the rule of
law in South Africa is no more than a remnant of colonialism. I will substantiate this claim with reference, first, to the
rule of law under colonialism and apartheid. This part of the discussion will illustrate that the rule of law is a colonial
construct.’ Et cetera.
• In constructing your argument, you are required to address at least the following aspects (approximate word limits in
brackets):
1. the rule of law during the era of parliamentary sovereignty under colonialism and apartheid in South Africa (1909, 1961
and 1983) (300 words);
2. the relationship between the rule of law and democratic constitutionalism (300 words);
3. the question whether the rule of law in terms of the post-apartheid constitutions is no more than ‘a legacy of colonialism’
(300 words).
4. whether the rule of law as adumbrated in the Constitution of the Republic of South Africa, 1996 can take ‘South Africa
constantly and ever changingly forward into a world beyond coloniality’ (1100 words). In other words, can the rule of
law revolutionise South Africa, or is the term ‘legal revolution’ a contradiction in terms? In this part of the essay you have
to consider the rule of law in terms of liberal-conservative post-apartheid constitutionalism and the rule of law in terms
of transformative post-apartheid constitutionalism.
You are not required to refer to the above quoted chapter and journal article in your essay, but they may help you
in terms of constructing the argument. To this end, these two readings will be uploaded to Vula. Prof Barnard-
Naudé may provide further guidance on the essay in lectures.
Word Count: 2747
My mark : 73%
, Please type your answer on the next page.
CAN THE RULE OF LAW REVOLUTIONISE SOUTH AFRICA?
I INTRODUCTION
South Africa has transcended from an apartheid to a post-apartheid era, regarded as constitutional
South Africa, however colonialism and traditionalism are still embedded in our governance. Baxi, 1
and Hyenrich 2 comment on constitutional South Africa’s transformation as a ‘legal revolution’ which
this essay disagrees with, believing that the rule of law is insufficient to revolutionise South Africa
as it is over reliant on a conservative legal culture with apartheid ideologies still looming. This essay
is noteworthy, as it critically evaluates the rule of law’s inability to revolutionise South Africa beyond
coloniality. This essay will critically analyse the transition from an apartheid to a post-apartheid era,
establishing the basis of the rule-of-law, concluding that for a ‘legal revolution’ to be implanted there
is desperate need for the adoption of a progressive and political legal culture. This will be achieved
by comparing the rulings of the apartheid to the post-apartheid era, referring to the views and
ideologies of profound writers and examining significant cases in which revolutionised South Africa
is absent. This essay will argue against the rule of law being able to revolutionize South Africa.
II BODY
The rule-of-law focuses on the principle that no person is above the law, the primary elements are:
absolute supremacy of the regular law, equality before the courts and the idea that the rule-of-law is
shaped from below. 3 Between 1909 to 1963 the rule-of-law was governed by the doctrine of
parliamentary sovereignty 4 and discriminatory apartheid-era laws. South Africa was colonized by
Britain in 1652, releasing its first constitution in 1909, 5 establishing the Union of South Africa, a
constitution modelled by the west minister system. 6 A Dictatorial legislature placed in the hands of a
racial minority, excluding indigenous South Africans from contributing to political, governmental,
and social affairs, advocating for social injustice and human rights violation. Evident in Moller v
keimoes, 7 a post-union case, branding racial segregation on the unions’ future. The appeal was
dismissed, despite racial segregation being absent in legislation, 8 it was assumed that parliament
1
Upendra Baxi ‘Chapter 28: Postcolonial legality’ in Henry Schwarz & Sangeeta Ray(eds) A companion to
postcolonial studies (2008) 540.
2
PW Heydenrich ‘Constitutionalism and Coloniality: A case of colonialism continued or the best of both worlds’
(2016) New contree 116 at 131.
3
A.V. Dicey Introduction To The Study Of The Law Of The Constitution 8 ed (1915) ch 2.
4
Refers to the idea that parliament has unlimited power to make and change laws.
5
The Union Act Of South Africa Act,1909.
6
The Westminster system is a typical parliamentary government system that was developed in Britain and exported to
all its colonies.
7
Moller v Keimoes School Committee 1911 AD 635.
8
The Cape School Board Act,1905.
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