Xavier Radio Ug News 24 7
South Africa’s political discourse often invokes the rule of law as if it were a self-sufficient cure for the country’s deep social wounds. No political party embraces this language more emphatically than the Democratic Alliance. Its messaging repeatedly emphasises legality, institutional discipline and predictability in governance. These are undeniably important values in any constitutional democracy. Yet elevating the rule of law into a political idol risks overlooking another constitutional imperative: the pursuit of substantive justice in a society still scarred by apartheid.
The difficulty lies not with the rule of law itself, but with a narrow understanding of what it requires. The political rhetoric surrounding it often suggests that legality is primarily about certainty and predictability. According to this view, if laws are clear and consistently applied, justice will naturally follow. But that assumption sits uneasily in a society whose legal system once produced extreme injustice while remaining perfectly “predictable”.
Apartheid was, after all, a system administered through law. Pass laws, forced removals and racially exclusive citizenship were not random acts of tyranny. They were legally organised. For millions of black South Africans, the law was not a shield but an instrument of humiliation and dispossession. A politics that invokes legality without confronting this historical reality risks sounding detached from the lived experience of the majority.
The legal philosopher Jeremy Waldron offers a useful corrective to this narrow view. In Thoughtfulness and the Rule of Law, Waldron challenges the idea that predictability is the central virtue of the rule of law. Law, he argues, is not merely a system that allows people to forecast outcomes. It is an institutional practice of reasoning, argument and justification. Courts and public officials do not simply apply mechanical rules; they must interpret principles, weigh competing claims and explain their decisions.
This understanding of legality emphasises deliberation and moral judgment rather than rigid predictability. It reminds us that the rule of law is not only about the stability of rules but also about the quality of the reasoning behind them.
In South Africa, that reasoning cannot be divorced from the country’s history of racial injustice. Our constitutional order was never meant to be a neutral framework that simply preserves existing social arrangements. The Constitution of the Republic of South Africa, 1996 was explicitly designed as a transformative project. It seeks not merely to regulate power but to repair a society fractured by decades of systematic exclusion.
This is where the language of dignity becomes crucial. The philosopher Ronald Dworkin famously argued that political communities must treat every person with equal concern and respect. Dignity requires that individuals be regarded as moral agents whose lives matter equally in the design of social institutions. South Africa’s constitutional commitment to restoring human dignity echoes this principle.
For many black South Africans, dignity is inseparable from material conditions. A society in which large sections of the population remain trapped in poverty, spatial exclusion and unemployment cannot plausibly claim that its constitutional promise has been fulfilled. In such circumstances, a political discourse that prioritises legality while downplaying social justice risks appearing indifferent to the realities of structural inequality.
Another influential thinker, John Rawls, provides a helpful thought experiment for evaluating political arrangements. Rawls invites us to imagine designing a society from behind a “veil of ignorance”, where no one knows what position they will occupy in that society. Without knowledge of our race, class or social status, we would be unlikely to design institutions that tolerate vast and entrenched inequalities. We would instead favour arrangements that protect the least advantaged.
Applied to South Africa, Rawls’s insight highlights the moral urgency of addressing historical injustice. If one were to design South African society from behind the veil of ignorance, it is difficult to imagine endorsing a status quo in which economic opportunity remains sharply divided along racial lines.
This is not an argument against the rule of law. On the contrary, the rule of law remains a cornerstone of constitutional democracy. But it must be understood in a richer and more morally attentive way. Legality cannot be reduced to the mechanical enforcement of existing rules. It must operate alongside a commitment to justice, equality and dignity.
The challenge for the Democratic Alliance is therefore not simply one of messaging but of moral imagination. If the party wishes to broaden its appeal among black voters, it must show that its commitment to the rule of law is compatible with a serious commitment to social transformation. It must demonstrate that legality is not being invoked as a shield for the status quo, but as a framework through which a more just society can be built.
South Africans do not have to choose between legality and justice. The Constitution demands both. The rule of law must guide how power is exercised, but it cannot substitute for the deeper project of building a society in which dignity, equality and opportunity are genuinely shared.
Until this balance is convincingly articulated, the language of legality alone is unlikely to persuade those whose historical experience of the law has too often been one of exclusion rather than protection. – By Lehumo Sejaphala (X: @Masterndozi)
Lehumo Sejaphala holds a BA Law and LLB degree from Wits University and an LLM from the University of the Free State. He also runs an online blog platform called the Voiceless and has contributed articles to various media houses.
www.sabcnews.com, https://www.sabcnews.com/sabcnews/opinion-das-rule-of-law-idolatry-and-the-neglect-of-social-justice/
