THE STATE IS NOT PRESUMED TO BE BOUND BY STATUTE – A CONSTITUTIONAL AND JURISPRUDENTIAL ANACHRONISM

Abstract

The presumption that the state is not bound by legislation has its genesis and lineage in our common law. It is a controversial presumption that needs to be evaluated carefully in the light of the libertarian provisions of both our common law and the Constitution. In particular, section 2 of the South African Constitution declares the Constitution to be the supreme law. Section 1 enshrines the common law concept of the rule of law, which is also given expression to in the provisions of the Bill of Rights.
The latter section of the Constitution prescribes the rule of law as one of the seminal libertarian values on which the Constitution is founded. The concept of the rule of law is a fundamental value that underlies “an open and democratic society based on dignity, equality and freedom”, and must be promoted when interpreting the provisions of the Bill of Rights. Furthermore, section 39(2) of the Constitution stipulates that the principles and rules of our common law must be developed in accordance with the spirit and ethos of the fundamental rights in the Constitution. This article addresses the formidable challenge posed by the sections of the Constitution referred to above and the common law, to the presumption that the state is not bound by legislation.