South Africa`s constitution is considered one of the best in the world. It is unfortunate that, according to the WJP`s 2021 Rule of Law Index, this improved condition does not allow South Africa to have the best rule of law statistics. Jowell J „The rule of law today” in Jowell J and Oliver D (eds) The Changing Constitution 5th ed (Oxford University Press Oxford 2004) 5–25 The rule of law as formal legality deals with the nature, form, and procedures of law, as noted above. The principles of natural justice, which are generally understood to underpin this conception of the rule of law, require the application of the law in „open and fair hearings” and the absence of bias on the part of the decision-maker (the judge).63 This requirement of procedural fairness as an aspect of legality is not limited to judicial proceedings.64 It is generally accepted that the rule of law requires respect for this principle with respect to administrative decisions. In a case where the right to procedural fairness is extended to executive decision-making, it has been accepted that the facts of each case determine the extent of procedural fairness required.65 Once this has been done, legality is expanded to take into account context-specific considerations in determining the scope of the rule of law. 66 This is a step towards a more substantive interpretation of the rule of law. An extended (or „thicker”) formal version of the rule of law is that of formal legality. The rule of law in this form requires that laws be public, general, clear, forward-looking in their application, and relatively stable.54 One of the leading proponents of the rule of law as legality is Raz. Raz55 considers respect for the rule of law to be one of the many ideals or virtues that a legal system can possess, adding that this ideal can be more or less realized in any jurisdiction. Raz56 identifies eight principles of the rule of law as a formal concept that are very similar to those listed above.
The rule of law requires open, clear, stable and general rules, preferably applied by independent courts. These principles have several practical legal implications. They require, above all, the exercise of official authority within the framework of the law. In a case where ultra vires powers are exercised, the formal exercise of that power is contrary to the rule of law.57 However, the rule of law as legality may mean more than simply acting within the powers assigned. In addition to calling some black judges „spiritually colonized” and „house,” Sisulu launched rhetoric about imperial impositions and the negation of African values. She stressed the rule of law for particular contempt. In this context of the range of theories of the rule of law, the note takes into account previous interpretations of the rule of law by the South African Constitutional Court. After that, the note returns to Masethla both in terms of theories and earlier judgments. Essentially, the rule of law as formal legality emphasizes the ability of law to guide people`s behaviour in society.67 As such, the rule of law reflects the valuing of individuals as autonomous actors with the capacity to make their own decisions.68 If the requirement of rationality goes beyond the scope of Raz and context-specific considerations should be included in the The interpretation of the rule of law is „thicker” and moves towards a substantive interpretation of the term. Considered a formal legality, as Raz and his proponents suggest, the rule of law says nothing about the content of laws and does not take into account context-specific considerations.
Craig P „Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” 1997 Public Law 467–487 This note examines the Masethla judgment in the light of the rule of law literature and previous judgments of the Constitutional Court based on this concept. First, the note provides an overview of the Masethla case. Tamanaha50 usefully describes rule of law theories on a continuum, with formal theories on one side of the spectrum and substantive theories on the other. South Africa is a sovereign and democratic state founded on the following values: . (c) the primacy of the Constitution and the rule of law. South Africa`s Constitutional Court and the Rule of Law: Are Masethla Grounds for Concern? Moseneke DCJ`s interpretation of the rule of law is narrower (and more positivist) than that of his colleague Justice Ngcobo. The starting point for both judges was legality, since the president could only exercise a power conferred on him by law. Both judges were of the view that the power to remove was secondary to the power to appoint. This formal interpretation of the rule of law is consistent with the Court`s earlier observations on that concept.
However, in further examining more important constitutional constraints, the judges separated.