Successfulness of the competition policy in south africa -support your argument by means of 8 examples
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Answer: PART A: FUNDAMENTAL CONSTITUTIONAL PRINCIPLES
The failed experiment - from unchangeable laws to changeable constitutions
Why does a country nowadays need a constitution? Two reasons can be given, firstly to define the
operational relationship of the organs of state5
and secondly to protect fundamental rights. It is the
second which is of interest to this paper. The first reason is largely administrative or regulatory, the
second is fundamental. To understand the need to protect fundamental rights via a constitution we can start off with the point made by Hayek from which the need for a constitution becomes selfevident. Until comparatively recently, it was accepted that:
the state cannot itself create or make law, and of course as little abolish or violate
law, because this would mean to abolish justice itself, it would be absurd, a sin, a
rebellion against God who alone creates law. For centuries it was recognized
doctrine that kings or any other human authority could only declare or find the
existing law, or modify abuses that had crept in, and not create law. Only
gradually, during the later Middle Ages, did the conception of deliberate creation
of new law - legislation as we know it - come to be accepted. In England,
Parliament thus developed from what had been mainly a law finding body to a law
creating one. It was finally in the dispute about the authority to legislate in which
the contending parties reproached each other for acting arbitrarily, acting that is,
not in accordance with recognized general laws that the cause individual freedom
was inadvertently advanced.
And so until comparatively speaking, recently, only unchangeable laws existed. Once it was accepted
that any “law” can be “made” and Parliament was the body which could do so, or in terms of John
Austin’s (1790-1859) 6 notions, Parliament was Sovereign,7
then the obvious question follows; what
is the limit to Parliament’s powers, if indeed any? What would happen, as is usually asked, if
Parliament was to pass a law that all blue-eyed babies be put to death – would that indeed be valid
law?8
Different answers have been given to this question. AV Dicey (1835-1922) England’s most
famous constitutional jurist argued the solution lay in revolt; in the ancient and fundamental right of
defence (Dicey 1915:30 et seq).9
The Americans decided upon a different approach, a constitution.
The constitution, as law, would be different. It was not a ‘law’ passed by a Parliament. It derives its
legitimacy, especially those provisions which purport to protect fundamental (or unalienable) rights,
from other sources. The Declaration of Independence (1776) recognises the existence of these rights.
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness.
The fundamental rights exist because they are self-evident endowed by the Creator, not because they
are granted in a constitution. The constitution is supposed to protect these unalienable rights; the right
of each individual to life, liberty and property.10 Since these rights are unalienable they are not derived from the constitution itself or any other document and therefore cannot be abrogated by
changes in the constitution or any other document.
The American experiment of replacing the unchangeable laws with an unchangeable constitution
when adopted in other parts of the world has not necessarily been a success. The unchangeable law;
the law above laws, the constitution, has become but yet another changeable law.11 Once again blueeyed babies can be put to death this time by simply inserting a provision to that effect in the now
changeable constitution.12 So for example in South Africa the view is firmly entrenched, in the
minds of the public if nowhere else, that property can be taken without compensation, if the
constitution be changed to permit this. The constitution becomes yet another changeable law which
derives its authority from some or other majority. Should this happen the constitutional experiment
will be known to be a failure.
Thus the first principle is that the constitution should embody the protection of what can called the
Ancient Rights which embodiment is unchangeable.13 These rights exist apart from the constitution
which rights can and should be but embodied in the constitutional document. Upholding the
protection of these rights should be the first principle to be applied when it comes to interpreting
legislation and constitutions.
Legitimacy of the constitutional protection of fundamental rights
The legitimacy of the constitution, when it comes to the protection of fundamental rights can
obviously not rest on a majority vote, or the specific wording in the constitution. It rests on the
existence of unalienable rights. This leads to the conclusion that constitutions can be unconstitutional,
if the document itself violates or fails to protect these fundamental rights.
Explanation: