This document is an essay about the rule of law. It delves into topics which affects the rule of law. Such topics are 'judicial choice' (such as the discretion that judges have in deciding cases), 'democratic constitutionalism', 'liberal-conservative constitutionalism' and 'transformative constitut...
The rule of law entails the supremacy of the law whereby unrestrained discretion by
government is ousted; formal equality before the law, thus ousting unfair discrimination; and
it upholds basic or individual rights and liberties.1 This essay will show that judges have a
choice when interpreting legislation – that ‘judicial choice’ has always operated to promote
the rule of law or has failed to do so, and that current judges have little to no excuse but to
promote the rule of law. In argument, I will draw on cases that came before the Court during
Parliamentary Sovereignty in colonial and apartheid times. This essay will furthermore refer
to Makwanyane, TAC and Carmichele – to illustrated the relationship between the rule of law
and democratic constitutionalism. Finally, I will argue that it is important for judges (and
lawyers) to migrate from a liberal-conservative constitutionalism approach in their
interpretation to a transformative constitutionalism approach.2
EXISTENCE OF JUDICIAL CHOICE
Realizing that judicial choice exists is critical for understanding the relationship between
judges and the rule of law, as will be shown in the Appellate Division cases that follow. In R
v Detody (1926),3 a native woman was charged for contravening an Ordinance requiring
natives to carry passes within the set curfew. The Ordinance defined ‘native’ as “every
person belonging to any of the aboriginal races or tribes … and every person, one of whose
parents belongs to any such race or tribe ....”4 The court held that Ms. Detody was not a
‘person’ in terms of the Ordinance – that the pass law did not extend to women. In contrast,
in Incorporated Law Society v Wookey5 – where a woman wanted to register her articles of
clerkship to eventually become an attorney – the court held that the word ‘persons’ in the
relevant Act did not include women. There the rule of law was not promoted because it
violated the principle that everyone is equal before the law.6 Nevertheless, the majority in
1
Dylan Lino ‘The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context’ (2018) at p. 741 available
at https://ssrn.com/abstract=3420568, accessed on 3 September 2020. Also see, Mark D. Walters ‘Dicey on
Writing the "Law of the Constitution" ', available at http://www.jstor.com/stable/41418848, accessed on 3
September 2020.
2
14 S. Afr. J. on Hum. Rts. 146 1998 (The Karl Klare reading on Transformative Constitutionalism can be found
here, on HeinOnline).
3
R v Detody 1926 AD 198.
4
Ibid at p. 220.
5
Incorporated Law Society v Wookey 1912 AD 623.
6
Supra note 1.
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