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50 Chapter 4
rule of law’ as one of the Republic’s founding values does not by itself
seem to give rise to any subjective right or judicially enforceable
norm — and indeed it cannot be read to do so in the light of the
Constitutional Court’s later decision in NICRO. 8 What is more, the
constitutionalisation of the legality doctrine occurred initially in
Fedsure, 9 on the watch of the Interim Constitution, an instrument
containing no express textual reference whatever to legality or the
rule of law.
By the Constitutional Court’s own account in Fedsure (never
revised, so far as I am aware), a textual basis for the constitutionalised
right to legality is not to be sought in any clause of the Bill
of Rights. The legality right is rather an implication from the whole
constitutional scheme, or one might say an implication from the
scheme’s most profound and obvious commitment, that to
constitutionalism itself. The principle of legality had been a main
fixture in pre-transition South African public law, and surely it must
continue now to be one. It would have been incongruous, to say the
least, to conclude otherwise.
Whether legality would continue to be a judicially enforceable
norm in South African law was a no-brainer. That, however, was not
exactly the question decided by the Constitutional Court in Fedsure
and Pharmaceutical Manufacturers. Rather, as my Chapter explains,
the issue precisely in contention in those cases was which tribunal, as
between the Constitutional Court and the Supreme Court of Appeal,
would have the last word in cases of disputable application of the
principle of legality. The Constitutional Court would have it — or so it
evidently has seemed to the jurists engaged in debating and resolving
the question — if and only if the legality doctrine has been completely
sucked up by the Constitution, retaining no separate life as a doctrine
of the common law drawing breath (so to speak) outside the tent of
the Constitution.
Such plainly was the view of Supreme Court of Appeal set forth in
Container Logistics, 10 and in Pharmaceutical Manufacturers the
Constitutional Court responded in kind. It did so, moreover, in
sweeping terms that go well beyond any tussle over which tribunal
would exercise final control over applications of the legality doctrine,
in particular. The Constitutional Court declared, in effect, that no law
in South Africa draws breath outside the tent of the Constitution:
8 Minister of Home Affairs v National Institute for Crime Prevention (NICRO) &
Others 2005 3 SA 280 (CC), 2004 5 BCLR 445 (CC).
9
Fedsure Life Assurance Ltd & Others v Greater Johannesburg Transitional
Metropolitan Council & Others 1999 1 SA 374 (CC), 1998 12 BCLR 1458 (CC).
10 Commissioner of Customs and Excise v Container Logistics (Pty) Ltd;
Commissioner of Customs and Excise v Rennies Group t/a Renfreight 1999 3 SA
771 (SCA), 1999 8 BCLR 833 (SCA).