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Reply - Justice Kate O’Regan 75
consistent with the Constitution. 32 Within the constitutional
framework, the rules of family law may be developed by the courts or
the legislature. The recognition of pluralism, within an overall
normative constitutional framework, seems to me to be one of the
strengths of our constitutional structure.
4 Legality
I turn now to the doctrine of legality. I am not going to repeat what
Fedsure was about in any great detail. The case was pleaded as an
administrative law ultra vires case, and concerned the passing of
rates by-laws by a municipality. The Constitutional Court said:
The constitutional status of a local government is thus materially
different to what it was when Parliament was supreme, when not only
the powers but the very existence of local government depended
entirely upon superior legislatures. The institution of elected local
government could then have been terminated at any time and its
functions entrusted to administrators appointed by the central or
provincial governments. That is no longer the position. Local
governments have a place in our constitutional order, have to be
established by the competent authority, and are entitled to certain
powers, including the power to make by-laws and impose rates. 33
The question that then arose was whether a local government which
acted outside its empowering legislation was acting lawfully or not,
and whether that was a constitutional question. The Court held
unanimously that it was.
I can think of no more fundamental doctrine in a constitutional
democracy than the notion that all arms of government, particularly
the executive, must act within the terms of their legal authority.
Time does not permit the citation of a range of august authorities to
support this statement. One may look at the German constitutional
principle of the rechtstaat, the French principle of état de droit; or
Jefferson’s assertion that the United States of America should have a
government of law, not men: all assert the principle that in a
constitutional democracy, the executive and legislative arms of
government have no power other than that conferred upon them by
32 Sec 15(2) provides:
Religious observances may be conducted at state or state-aided
institutions, provided that:
(a) those observances follow rules made by the appropriate public
authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
33 Fedsure (n 25 above) para 38.