Abstract
The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa,[1] the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.
Highlights
The facts of Masethla v President of the Republic of South Africa1 remind one in some way of a James Bond story – instructions from on high led to covert surveillance and phone tapping, followed by copious investigations and filing of reports with high-ranking individuals
– or – the judgments of the Constitutional Court in Masethla are less romantic than a Bond story, but they are no less dramatic
The judgment of the Constitutional Court followed a further High Court application by Masethla to challenge the validity of the President's decision to amend his term of office unilaterally and to obtain a declaratory order to the effect that he was still the head of the National Intelligence Agency (NIA).19
Summary
The facts of Masethla v President of the Republic of South Africa remind one in some way of a James Bond story – instructions from on high led to covert surveillance and phone tapping, followed by copious investigations and filing of reports with high-ranking individuals. – or – the judgments of the Constitutional Court in Masethla are less romantic than a Bond story, but they are no less dramatic. The judgments' specific pronouncements regarding the scope of the rule of law as a foundational constitutional concept are of great importance. The majority of the Court interpreted the rule of law narrowly, while the minority opted for a more inclusive interpretation incorporating procedural fairness as a constraint on the exercise of public power. This case note considers the Masethla judgment against the background of literature on the rule of law and earlier judgments of the Constitutional Court which relied on this concept. The note provides an overview of the Masethla case
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