One of the most frequent give-aways of the on-going incorrect national mind-set in politics used to be to refer to the then tripartite governing alliance in national politics, and in all but one of the provinces, as “the ruling party”. It is an endemic error, committed by editors, journalists, authors, lawyers, political commentators and even politicians themselves.
Everyone should know better; but old habits die hard. Of course, since the May 2024 national elections all this has changed with the formation of a coalition government which, somewhat grandly, and certainly inaccurately, calls itself the GNU or government of national unity. Formed in the wake of the ANC alliance to muster a majority, the coalition presides fractiously in a dispensation that is meant to be a constitutional democracy under the rule of law, in which law or conduct inconsistent with the Constitution is liable to be struck down as invalid. The fact that the third- and fourth-largest parties in parliament are not part of the GNU reveals the misnomer.
These are not a mere pedantic complaint. The notion that the free people of SA are ruled by any party is foreign to the values and principles of our constitutional democracy. These precepts are encapsulated in the National Accord which was thrashed out by representatives of all significant groupings in the country in the period between 1990, when our liberation movements were unbanned, and 1996, when the final Constitution, as certified by the Constitutional Court, found its way onto the statute book, eventually becoming our supreme law in February 1997.
It is appropriate to have regard to the provisions of chapter one of the Constitution as regards the notion that we are now governed rather than ruled. This chapter is headed “Founding Provisions” and it envisages a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”. In this dispensation the values of human dignity, the achievement of equality and the advancement of human rights and freedoms hold pride of place. Non-racialism and non-sexism are fundamental to the new order, which is based on, to quote section 1 (c): “Supremacy of the Constitution and the rule of law”. (These lofty precepts are cold comfort to the black police personnel who have been refused promotion due to the constraints of BEE.
These basic constitutional values represent a sea-change in the way in which SA is run. Under the old apartheid order, the parliament of the day was sovereign and the “testing rights” of the courts far more circumscribed than is the case today. This is one of the biggest differences between the old order and the new. No longer can a sovereign parliament do as it pleases; we are all constrained by the values, tenets and principles of our not-so-new supreme law, the Constitution.
As if to emphasise this basic point, section 2 of the Constitution reads:
“The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
The notions “law or conduct” cover every activity of government and a lot more. This has been demonstrated time and again in litigation challenging impugned “law or conduct”. The courts jealously guard the values of the Constitution and now have the final say as to what the Constitution means, when its implementation forms the subject matter of any dispute that is litigated. The Constitutional Court was created in the new Constitution in order to be the final arbiter of disputes concerning the fulfilment of the obligations imposed by the Constitution. All concerned in constitutional disputes, including government, are bound by the final findings of the courts. In this way it is the Constitution that rules.
The co-supremacy of the rule of law brings with it a national commitment to the separation of powers, the imposition of checks and balances on the exercise of power and the implementation of a justiciable Bill of Rights which requires the state to “respect, protect, promote and fulfil” all the rights and freedoms guaranteed to all by the founders of the new order. Rights to life, dignity, freedom of expression (which includes media freedom) and a multitude of socio-economic rights, which are the envy of freedom loving people the world over, hold pride of place in the new culture of human rights which replaces the oppression inherently involved in the apartheid era.
Reference to an internationally accepted definition of the rule of law is required. The World Justice Project has formulated a working definition. It, according to AI, defines the rule of law as a system delivering accountability, just laws, open government, and accessible justice, ensuring everyone, including the government, is subject to clear, stable, and applied laws, protecting fundamental rights, and featuring fair, efficient legal processes. This framework promotes a society where power is limited, corruption is low, and citizens can trust the system for order, security, and fair resolution of disputes.
In SA we have institutions, created under chapter nine of the Constitution, which exist to support constitutional democracy. These institutions operate in a way that is supplementary to the role of the courts in ensuring that the country does not stray onto a path that is inconsistent with its Constitution. Free and fair elections, human rights, administration, cultural rights, gender parity and proper accounting for expenditure of public funds are among the business of the various Chapter Nine institutions which are enjoined to act “without fear, favour or prejudice” (in a word “impartially”) and with guaranteed independence in the discharge of their constitutional obligations.
It is indeed a miracle that the founders of the new order were able to negotiate so satisfactory and people-friendly a compromise during the constitution-making process. The two main protagonists in the negotiations were the Afrikaner nationalists then in power and the African National Congress. Both groups did not have a track record of fealty to constitutional democracy under the rule of law. The authoritarian tendency of the National Party of old is well documented, as is the communist influence on the thinking of the ANC. Under communism the hegemonic control of all the levers of power in a one-party state is the aim of the Lenin-inspired “national democratic revolution”. This “revolution” remains the policy, and the strategy and tactics, of the ANC and its alliance partners to this day. Obviously, hegemonic control of all levers of power is inconsistent with a constitution of the kind we have had in SA since 1994.
Yet, the mind-sets of the past linger.
This is at least in part attributable to a lack of appreciation of the lasting value of constitutional democracy as a framework within which to create the type of “united in diversity”, free and open society that the preamble to the Constitution envisages. Before she belly-flopped briefly into the murky waters of party politics, Dr Mamphela Ramphele led a campaign which supported the tee-shirt motto “subject to citizen”. The underlying premise of the campaign was to change the attitude of her fellow citizens of SA from that of passive “subjects” who are ruled, to that of active “citizens” who are governed in a multi-party and participative system of government that has social justice and fundamental human rights at its forefront. Becoming active citizens who insist on being governed in accordance with the Constitution and the rule of law ought to be the business of everyone living in SA today. Unfortunately, this is not the case. Those who dream of and aim towards hegemonic control of all the levers of power in a one-party state are not friends of the constitutional dispensation in place. They actually mean it when they mutter darkly about the deleterious effects constitutionalism has on their desire for hegemony.
Everyone who values the benefits of multi-party democracy under the rule of law in our current constitutional dispensation ought to cultivate the habit of referring to governing parties everywhere at every level as “the governing parties” not “the ruling parties”. This appellation is a salutary reminder that we are no longer ruled, that government is limited in what it does by the obligations imposed on it by the Constitution and the rule of law. When it strays into the realms of that which is inconsistent with the Constitution, government is liable to have its laws or conduct struck down as invalid in court, when it is challenged by vigilant citizens, organisations and opposing political parties.
The rule of law is hardly in fine fettle in SA today. Quite apart from the challenges of the GNU, there is a lack of appreciation of the importance of this concept to the future of SA. The outgoing National Director of Public Prosecutions, Shamila Batohi, who should know, describes the rule of law as being “on life support in the ICU” of the nation. Restoring fealty to the rule of law ought not to be too large a task. All politicians are sworn by their oath of office to uphold the rule of law. The SOEs and public administration are meant to operate within the parameters of the rule of law, cadre deployments notwithstanding.
In July last year the most senior member of the SAPS in KZN, Lt. Gen. Mkhwanazi, called a press conference at which he complained bitterly about the undermining of the rule of law in SA today. His complaint did not fall on deaf ears. In response, Parliament appointed an ad hoc committee to look into the complaint with a view to taking remedial action if it was well-founded. Not to be outdone, President Ramaphosa, invoking the deleterious impact on the rule of law of the complaints made, appointed a commission of enquiry to look into Mkhwanazi’s complaints from the perspective of the executive branch of government.
In broader terms, ANC cabinet members, rather than its leadership based in Luthuli House, continue to sing the praises of the rule of law. As recently as 8 January, 2026, the former Minister of Justice and current Minister of International Relations, Ronald Lamola, invoked the rule of law very broadly during a speech commemorating the ANC’s birthday. He said: “The rule of law remains fundamental to global stability, legitimacy and governance.”
Both the commission and the ad hoc committee have been given a submission by Accountability Now for their consideration in the context of the remedial action required to respond appropriately to the Mkhwanazi complaints. As both bodies recommence their work after the year-end break, it is as well to share the submissions so made. They are not confidential:
Paul Hoffman SC is a director of Accountability Now.
[Image: https://ucigcc.org/wp-content/uploads/2024/11/Judicial-Reform-5.jpg]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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