By Makhosi Poyo
The recent service delivery protests, characterised by the destruction of public property, as well as occasional loss of lives by some protestors have left some gasping with astonishment and feeling overwhelmed by a plethora of unanswered questions pertaining to such incidents. Given the fact that our society is founded on the values of constitutional democracy with an entrenched Bill of Rights, which guarantees human dignity, equality and freedom (s 7 of the Constitution), how is it that the social behaviour of some citizens, in pursuit of the same rights and freedoms as guaranteed in the Constitution, is increasingly expressed in the manner that is diametrically opposite to its spirit and tone? Is the Constitution not affording the citizens of South Africa (SA) enough effective remedial mechanisms in line with the ethos of a democratic society, to defend and advance their constitutional rights and freedoms in such circumstances? Or could it be that the Constitution of SA, which has been suggested by many as among the best in the world, if not the best, was erroneously overrated and thereby is gradually proving to be an integral part of what some lately believe is the sunset shades of a ‘fairy tale’ rainbow nation? If not, as I believe, what is the legal explanation of what appears to be the lacuna between rights the Constitution guarantees on paper and what practically becomes attainable as rights and freedoms on a daily basis to ordinary South Africans?
To interrogate these questions, I have analysed the maxim ubi ius ibi remedium (whenever there is a right, there is a remedy), the state according to social contract, two dimensions identified in the right to vote, the right to recall, the unconstitutionality of the South African electoral system and possible reforms as sub themes in this article.
The main argument
As one of its sources, South African law includes common law, which consists of English and Roman Dutch law. Both these legal systems have as one of their maxims ubi ius ibi remedium principle. Enunciating this principle in the seminal case of Ashby v White (1703) 92 ER 126, Lord Holt CJ remarked that ‘indeed it is a vain thing to imagine a right without a remedy; … of right and want of remedy are reciprocal … Where a man has but one remedy to come to his right, if he loses that he loses his right.’ Practically, it means whenever there is a legal regime dressing an individual with a right, inherent in that regime should be remedies to protect that right.
This maxim still constitutes an integral part of our legal system with this recognised in Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A) at 781 wherein Centlivres CJ confirmed that ‘remedy is indeed, part and parcel of the right. Ubi jus, ibi remedium.’
The Constitutional Court subsequently expressed recognition of this principle in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at para 69 by noting that: ‘In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced.’
This principle enjoys recognition internationally with the Canadian court having held in Doucet v Canada [2005] 1 FCR 671 at 674, that: ‘The purpose of the remedy must be to provide an effective solution to the problem or, as the Supreme Court has said, to give “modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy”’ (see also Nelles v Ontario [1989] 2 SCR 170 at 196).
The critical question is: In what sense does this principle, as it is still recognised in our law, remain a missing part of the South African Electoral system? To ponder this question, I have looked at the concept of the state from the social contract theory point of view and I have asked whether South African state resembles a modern form of social contract.
The theory of state as a by-product of social contract is premised on the idea that citizens agree among themselves to form an institution called a state, as a supreme authority to which they will obey in all matters in return for the protection of individual rights like private property, freedom of speech and thought, as well as guarantee of peace and security among others.
Various philosophers have interpreted the social contract theory including Thomas Hobbes, John Locke and Jean-Jacques Rousseau among others. Thomas Hobbes Hobbes’s Leviathan (Oxford: Clarendon Press 1909) (http://oll.liberty.org/leviathan/1909, accessed 25-8-2017) notes that the ‘essence of the Commonwealth; which, to define it, is: one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all as he shall think expedient for their peace and common defense.’ Though they differ among themselves as to the reason behind the formation of the state, common cause is that people concord among themselves to form this supreme being with an obligation in return to guarantee their individual rights.
Given this enunciation, the curious question is whether our Constitution does embody elements of the social contract as a foundation of our democratic state? It unequivocally does. A closer scrutiny of the Constitution reveals traces of the social contract. The broader concerns of various philosophers are embellished in our Constitution.
The preamble proclaims that: ‘We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to –
…
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.’ Worthy to note is that in as much as there is no government without the will of the people, equally, no people can force a party to be their government. Thus consent by both parties gives birth to a contract for formation of a democratic government.
The obligation the Constitution places on the state to respect, protect, promote and fulfil the rights in the Bill of Rights (s 7(1)) is performance from social contract anticipated by citizens. Further clauses in the Bill of Rights speaks to this concern, including the guarantee of freedom and security of person.
The Constitution at ch 8 further dedicates on how to deal specifically with courts and administration of justice. It affirms the independence of the courts, as well as the fact that they are subject to the Constitution.
This comparative analysis reveals no dichotomy between the two except that the South African Constitution embodies a list of the rights to be guaranteed by the state, which were not recognised then. This phenomenon germinates from the differing historical periods within which the two find themselves, the first being during the early modern society while our Constitution resides in a post-modern one.
Yet despite this meticulous effort to unpack the social contract theory as the framework defining the South African democratic state, the question still begs: Who becomes the functionary of the Democratic Republic to fulfil the realisation and the protection of constitutional rights and how does that functionary come into existence?
These questions are of prime importance because from their answers flow an understanding of how government comes into existence as the proxy for the people or the state to fulfil their constitutionally stated will (s 1(d)). This brings us to the next question of the legal significance of the right to vote.
The two innate legal dimensions assailing the right to vote is the freedom of choice and the formation of a contract of mandate. Whenever a citizen votes for its representative, it invariably exercises a freedom of choice. Simultaneously, the voting process ushers in a contractual relationship between the two, with the citizen undertaking to pay and indemnify the representative for all the effort of fulfilling the mandate in return, for the representative to perform by fulfilling the broader objectives of the social contract which are contained in government programs like the Integrated Development Plan and others for practical purposes. This is a contractual relationship of mandate (see BX De Wet and BG Rogers (ed) Pothier’s Treatise on contract of Mandate (Lex Patria Publishers, Johannesburg 1979) at 3).
This sentiment was expressed in Manson v Vacuum Oil Co SA Ltd 1936 CPD 219 at 223 with the court remarking that ‘Van der Linden seems to me to put the matter much more satisfactorily. “He defines mandate as a transaction by which a person commits the management of one or more of his affairs in his stead and on his account to another person who charges himself to gratuitously therewith and binds himself to render an account.”’
Acknowledging these dimensions belies the nub of this theses. The Local Government: Municipal Electoral Act 27 of 2000, as well as the Electoral Act 73 of 1998 both breathe life to the right to vote in respective tiers of government. Yet, they fall foul of the ubi ius ibi remedium principle, because they do not address the voter with remedy against the representative. The voter does not have an effective remedy to undo the choice that it initially did in the event that it no longer needs it. Secondly, the right by the voter to cancel, which is a common law right wielded by parties to a contract is absent. Representatives wield this right under the constitution (see ss 50; 102; 109; 139(1)(c) among others). In Botha and Another v Rich NO and Others 2014 (4) SA 124 (CC) at 142 the court held that recognising purchaser’s right to cancel was an interpretation ‘consistent with the object of our Constitution that contracting parties are treated with equal worth and concern.’ At para 38 it states: ‘Cancellation is a remedy that exists at common law.’
In the context of parliamentary democracy, cancellation by citizens is to recall public representatives. ‘[R]ecall is a legal mechanism by which a specified percentage of voters can petition for an election to remove a particular elected official’ (TE Cronin Direct Democracy: The Politics of initiative, Referendum and Recall (Harvard University Press 1989)). This definition is not universal as the citizens can do this through a referendum giving citizens equal opportunity to pronounce on the issue. The right to vote to the extent that it does not embody remedial provisions to cater for the above remains understated and thus unconstitutional. This postulation tallies with the view in Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (5) SA 30 (CC) at para 39 wherein the court had to deal with the constitutionality of an understated definition of rape as it excluded anal penetration. In dealing with this anomaly, Nkabinde J held that: ‘The inclusion of penetration of the anus of a female by a penis in the definition will increase the extent to which the traditionally vulnerable and disadvantaged group will be protected by and benefit from the law. Adopting this approach would therefore harmonise the common law with the spirit, purport and objects of the Bill of Rights.’
Conclusion
The Bill of Rights is a gateway to recognise the existence of any other rights or freedoms that are recognised or conferred by common law or legislation, to the extent that they are consistent with the Bill (s 39(3)). Ubi ius ibi remedium is a gateway to create the necessary balance in the South African electoral system. The available remedies as they obtain in Municipal Systems Act 32 of 2000 and other Acts fail to meet the standard of effectiveness as highlighted in the Fose case. It is in the interest of justice therefore, that a direct application to the Constitutional Court in terms of s 167(6)(a) of the Constitution to have the electoral acts declared unconstitutional and order the inclusion of remedy clause to the voter.
Makhosi Poyo BProc (UWC) is an attorney and Assistant Master at the Gauteng Division of the High Court in Pretoria.
This article was first published in De Rebus in 2017 (Oct) DR 24.
