Is the government a law unto itself or is it answerable to the Constitution of the Republic of South Africa 1996

The Constitution of the Republic of South Africa 1996 is the supreme law of the land?and law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

The Bill of Rights is the cornerstone of democracy in South Africa. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

In Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice and Constitutional Development and Another v Tsebe and Others 2012 (5) SA 467 (CC) Zondo J stated?

“…Furthermore, our concern about that perception cannot override the need for us as a nation to stay on course on the path we have chosen for ourselves to respect, protect, promote and fulfil human rights, to observe our Constitution and deepen the values upon which we have chosen to create our new society. Those values include human dignity, the achievement of equality and the advancement of human rights and freedoms.…

However, it must be remembered that our Constitution is our supreme law and in section 7(2) it places on the State the obligation to respect, protect, promote and fulfil, among others, the right to life, the right to human dignity and the right not to be treated or punished in a cruel, inhuman or degrading way…

We as a nation have chosen to walk the path of the advancement of human rights. By adopting the Constitution we committed ourselves not to do certain things…?This path that we, as a country,?have chosen for ourselves is not an easy one. Some of the consequences that may result from our choice are part of the price that we must be prepared to pay as a nation for the advancement of?human rights and the creation of the kind of society and world that we may ultimately achieve if?we abide by the constitutional values that now underpin our new society since the end of apartheid.”

Section 172(1)(a) is the constitutional safeguard and states that:“(1) When deciding a?constitutional?matter within its power, a court-

(a)??????must declare that any law or conduct that is inconsistent with the?Constitution?is invalid to the extent of its inconsistency”

The relief lies in section 172(1)(b) which creates peremptory just and equitable relief?

As such State and Government is not above the Constitution and unconstitutional conduct must be struck down.

Furthermore the Promotion of Access to Administrative Justice Act 3 of 2000 gives effect to the right to just administrative action as enshrined in the Constitution and provides the mechanism to set aside unfair, unreasonable, biased, unauthorised, and irregular action by the State.

These various mechanisms can be used to keep the State on the straight and narrow.

June Stacey Marks

BCom (cum laude) LLB (cum laude) LLM (cum laude)

June Marks is working on an LLD in Public Constitutional and International Law