The Safeguard South Africa Cannot Afford To Forget

Citizens must demand reasons whenever power is exercised and insist that officials justify their actions by reference to the law.

Photo by Tingey Injury Law Firm on Unsplash

Written By: Eustace Davie

Section 1(c) of the South African Constitution declares the Rule of Law a founding value of the Republic. It stands alongside democracy, dignity, and equality before the law. Its inclusion was deliberate: a recognition that freedom and prosperity depend not on the goodwill of politicians but on a system in which government officials and citizens are bound by the same law. Without this safeguard, rights are reduced to privileges, exercised only at the discretion of those in power.

In its most precise sense, the Rule of Law means that the law governs, not the arbitrary will of politicians or officials. It requires:

• Equal application: the same law for every citizen and every official.

• Clarity and stability: laws that allow people to plan, contract, and invest with confidence.

• Universality: no person or office stands above the law.

Nobel Laureate Friedrich Hayek described it as a higher principle: government itself must be bound, not free to act at whim. Section 1(c) of South Africa’s Constitution gives this principle the highest status by declaring the Republic founded upon it.

The significance of section 1(c) cannot be overstated. It is the principle that limits government power and secures the rights of citizens. People are free to live, trade, and plan their lives only when they know their rights cannot be suspended at political discretion. Without this foundation, rights become conditional, exercised only with permission.

Yet South Africa is drifting steadily away from this principle. Politicians increasingly treat rights as permissions they may suspend.

The Expropriation Bill is one of the clearest breaches. By authorising seizure of property at “nil compensation” it undermines the idea that ownership is secure. The message is that property rights exist only when politicians approve. A title deed in a township should be a firm guarantee of ownership, able to support a loan or provide a secure inheritance for one’s children. Once section 1(c) is ignored that guarantee begins to dissolve.

The damage does not stop at land ownership. If government can set aside the Rule of Law to seize property, it can do the same to contracts, businesses, and other rights. A factory can be nationalised or a contract cancelled because power is exercised selectively. The purpose of section 1(c) is to protect every citizen from arbitrary government decisions. The economic consequences are obvious. When the law ceases to guarantee rights, legal plunder follows. Effort is withdrawn from productive work and channelled into securing political favour.

Other countries confirm the lesson. Zimbabwe confiscated farms in breach of equality before the law and destroyed one of Africa’s most productive agricultural systems. Venezuela set aside contracts and property rights and fell from prosperity into poverty within a single generation. By contrast, Botswana has achieved steady growth by upholding the Rule of Law. Singapore, once poorer than South Africa, built lasting prosperity by securing contracts and ownership under impartial law. The dividing line is always the same: where the Rule of Law holds, freedom and prosperity follow; where it is eroded or abandoned, decay and poverty set in.

Practical reform begins with restoring certainty. Millions of households remain without secure title to their homes. Converting those into full ownership would unlock wealth and opportunity. Projects such as the Khaya Lam initiative demonstrate that this is both feasible and affordable. At the same time, expropriation powers must be tightly limited to genuine public purposes, with compensation guaranteed. Only then can section 1(c) function as intended — a bulwark against arbitrary action.

Courts in South Africa still act at times to enforce section 1(c). But they cannot defend it alone. Parliament must discipline itself to pass only laws consistent with the Constitution. Civil society must expose and resist every attempt to treat rights as negotiable.

Citizens must demand reasons whenever power is exercised and insist that officials justify their actions by reference to the law. The Rule of Law is upheld not only by judges but by a vigilant public that refuses to accept arbitrary power as normal. The Rule of Law, enshrined in section 1(c), is the constitutional imperative. Every freedom depends upon it. To weaken it is to betray the foundation of South Africa’s Constitution. To defend it is to secure a future of liberty and prosperity.

Eustace Davie is President of the Free Market Foundation and author of Jobs for the Jobless and Unchain the Child.