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34: Martin van Staden

Author, researcher and jurist - Free Market Foundation
Self-confessed dogmatic individualist and libertarian, Martin van Staden, shares his views on the rule of law, independent education and land expropriation without compensation.
11 September 2019

CIARAN RYAN: This is CFO Talks and today I'm joined by Martin van Staden, he's the author of The Constitution and the Rule of Law. Martin works with the Free Market Foundation as a researcher and jurist and is in the rather fortunate position of being able to contemplate and research aspects of our law that I certainly missed, and I imagine that many others do too. For example, our law is littered with examples of ministers attempting to override the constitution and they often do this by writing regulations. I always find it curious how some seemingly insane laws made it onto the statute book, so we're going to talk about that with Martin van Staden. Welcome, Martin.

MARTIN VAN STADEN: Thank you for having me, it's an honour and a privilege to be here.

CIARAN RYAN: It's great to have you. Just by way of introduction tell us a bit about yourself, where you grew up and studied and how you ended up at the Free Market Foundation.

MARTIN VAN STADEN: I was born in Vereeniging, I grew up in Centurion, I did my law degree at the University of Pretoria and there I didn't hear much about the rule of law while doing a law degree, it's very interesting that that doesn't come up in that syllabus. When I finished my degree I became a bit of a libertarian, a classical liberal, I started seeing that South Africa's problems were basically all emanating from government and I say all very purposefully, it seems like all of our problems are due to some politics. That led me to the Free Market Foundation, which is a classical liberal thinktank, obviously advocating for the free market system that says that ordinary people should be able to run their own lives without some meddling politician telling them what to do and how to do it. It was just a perfect fit, I went to the FMF, I am not an economist, so it's very interesting but I am definitely a lawyer and that's the niche I fill there and I think the rule of law is very complementary to what the FMF believes and that there should be a stable society, a peaceful society and what you need for that is a government that is restrained, that is limited. The rule of law is perhaps the most underemphasised institution in our constitution, it's a founding provision that is basically all about limiting the power of government, which our courts, our legislature, Parliament and the executive have all but totally ignored.

CIARAN RYAN: Talk about the rule of law, this is something that it seems to be fairly implicit what it means, the rule of law, the law applies. But in the book, you talk about the rule of law as being something quite separate from what's on the statute book, so just explain that for a minute.

MARTIN VAN STADEN: Everyone and his dog believes in the rule of law, you can speak to Kim Jong-un, you can speak to Adolf Hitler in the 1940s, everyone is going to tell you that we believe in the rule of law, that's what we do. Across the ideological divide everyone says the rule of law is great. I submit that nobody understands what the rule of law is and it has become somewhat of a nebulous thing, everyone says the rule of law this, the rule of law that, but it is a doctrine with a meaning, it's not just words. If you go back to Albert Venn Dicey, the German scholars in the nineteenth century, these people all came up with very specific principles that defined what this thing, the rule of law, means. Basically, they all agreed, the rule of law does not just mean that Parliament passes legislation and that that gets implemented by the executive. That is what people think the rule of law means generally. So if the law is not being enforced by the police, like traffic law, then the people say the law is not being respected. That is not the case. The rule of law is an embedded institution in the law, it's something that permeates all law, the constitution, all legislation, regulations, everything that basically says that government must conduct itself reasonably and not arbitrarily. That means that decisions cannot be capricious, decisions must have real reasons, not ideological reasons, not saying that we want to give healthcare to all, that's not a reason. You need to find a legal principled reason for the intervention that you are doing and then it becomes a matter of legal logic almost. So if you expect people to adhere to the law that you have made, that law must be accessible, people must be able to read it, must be able to understand it. If they cannot read it or understand it, they cannot obey it and, therefore, according to our constitution I submit that law would be unconstitutional. This is also means that the law must be, for instance, not 200 pages long, a piece of legislation that's 200 pages long filled with legalese is in and of itself to me a violation of the rule of law, a violation of the founding provision of our constitution and, therefore, unconstitutional. The terms in legislation must not be vague, again a matter of understanding. The executive, which I think you alluded to earlier, must not be in the business of making law because then you have the rule of man, you have an official or a minister just deciding that for this situation here I think I am going to apply my mind like this and then it's a totally different thing from how I applied it yesterday. That means that ordinary people cannot bring their behaviour into line with what the law expects of them because how the law is going to apply is going to be totally arbitrary and based on what the minister had for breakfast that morning. That is totally unacceptable and that is why the separation of power is a very core aspect of the rule of law. Parliament must make law, the judiciary must interpret what that law means and then apply it to a situation, and the executive - and this cannot be underemphasised – the executive only applies the law and enforces the law as passed by Parliament. This has not been the case in South Africa and, indeed, not the case in many places around the world. What has happened is that under the banner of regulation the executive has basically started making law. We talk about regulations, what the regulation actually should be is a technical implementation substantive law of Parliament. So the example I make in the book is the substantive law on the road is that the speed limit is 120, that is substantive law, that is something that we as ordinary people need to adhere to, to be law abiding citizens but that is a rule that only Parliament should be able to make. In South Africa the executive makes that law but that is a Parliamentary law that should be made. The implementation of that law, what the executives should be doing is enforcing it, Metro Police putting up the sign saying what the speed limit is, that is regulation. We have totally perverted that concept and now we have said that regulation is you decide what the speed limit is, you being the Minister of Transport. So that's totally arbitrary, the speed limit can be something different every day, depending on what the minister thinks on that day. Obviously, that doesn't happen but that is hypothetically what could happen. So we have this situation where the executive creates law for ordinary people when they are nameless and faceless bureaucrats, they are not being held accountable, we don't know who they are. We know who Parliament is because we elect them, but we don't know who these executive bureaucrats are who make these so-called regulations that govern basically every aspect of our lives and that is deeply problematic.

 

The government does not understand the limits of its own power

 

CIARAN RYAN: I think it's a question that has troubled me and probably you and a lot of people for quite some time, is when you look back and it's often too late and you see a law that has been passed. For example, mental health laws based on the diagnostic and statistical manual, which is really a contrivance with no scientific basis whatsoever. So what is this thing called bipolar disorder, what is this thing called depression. Having sat through a court case in Bloemfontein where there was a lot of discussion on the difference between grief and bereavement, and you really have to take a microscope to the dictionary to understand what they are really talking about here. It just struck me that the whole intrusion of psychology into the courts, it's mindboggling and it's not based in any science. That's just one example, in the book you also give an example of private schooling, it's allowed in terms of our constitution, it's allowed in terms of our statute, there is a Schools Act. However, and it's very lightly regulated, all that it requires is three things, I think one of them is that it cannot be based on race, you cannot exclude different races from your school and that's fair enough. But what appears to have happened is the minister has gone and delegated these powers to the provinces and he said make up your own rules. Of course, that's exactly what they start doing and those rules then start favouring their friends and their particular biases and prejudices and so on. Talk for a minute about how this regulation really is an intrusion and I mention that in the context of I was just thinking about when you get to a revolutionary stage is when people have really had enough, there's usually an economic trigger of some kind, the French Revolution and so on. Yet, the Napoleonic laws were kind of wipe the slate clean, let's start again. But laws do tend to survive because if you were to eliminate the statutes, the Roman-Dutch law that we have in South Africa, what are you left with, you're left with nothing. This is thousands of years old legacy that we've got here. But in a fairly unique position here, and it probably goes back to the apartheid years, where the government does not understand the limits of its own power, explain how this works to us?

MARTIN VAN STADEN: Let me touch on that before I get to the schools. Our common law, Roman-Dutch, the Americans and Britain have English common law, this is an institution that is developed spontaneously over a period of, as you say, thousands of years, these are basically the rules of best practice that have come about between ordinary people engaged in commerce who think that doesn't seem too fair to me, that's probably a problem, then going to the courts and the courts saying yes, I think the ordinary rules of natural justice would say that that is not right and that over time becomes a common law rule, it becomes accepted widely by virtually everyone. That is how common law develops, it's the same with African customary law in South Africa, which is also a common law of a sort, rules that have developed over years. Legislation is basically the denial of common law. Legislation, regulation is basically a politician saying I have an opinion and that opinion is now law. So legislation is a very dangerous and oppressive instrument. Sometimes we need that, of course, but legislation has become so entrenched that we think okay, Parliament will just come up with whatever rule they want and that is now the law. As you mentioned, you're wiping away thousands of years of legal tradition with what, basically the opinion of the current political class, which will not be the political class tomorrow. So yes, that is definitely a problem and that is something that the rule of law also addresses when it goes into legal certainty. The common law gives us legal certainty, we know how the law will apply to us, we have a good idea of how the judges will apply a certain rule of common law but when the law changes every day, every month, new legislation, new amendment acts and in South Africa when legislation has been amended nobody actually goes and puts the legislation in the amendment itself, you need to have the old act and the new amendment act next to each other all the time to see how the law has changed. That's impossible for a lawyer, so think how impossible it is for an ordinary person. So it eviscerates legal certainty, you don't know how the law is going to apply, you don't actually know what the law is right now, which you would have known if it was a common law-centric system, which we still more or less are but that's changing and it's not only changing here, it's changing around the world. So it is a problem and it is damaging to the institution of the rule of law, which says that the law needs to be certain, changes need to be gradual, people need to know what the law is. That's something that we would be best to avoid as a society and not go the Napoleonic route, and just wipe it clean, and replace it with what is the opinion of the aristocratic class right now. On the point of the schools, it's interesting, the constitution says everyone has the right to an education and the requirements for that is it may not discriminate based on race and it must be of an equivalent or a superior quality to the public school system. That is easily achievable and there is a further requirement that says the school or university must be registered by the state. Now, to a legal mind like mine that is quite simple, it says that if your school does not discriminate based on race and if it is of an equivalent or superior quality to public schooling then it must be registered. The requirement that it must be registered to be a valid independent school, to me, cannot mean that the minister or the provincial MEC for education may now come up with an unlimited host of rules and criteria for the school to be registered, for instance, it must provide Zulu as an additional language or it must provide Afrikaans as an additional language. That is not in the constitution, the constitutional right to an independent education says no race discrimination, good quality, registered.

CIARAN RYAN: Does that not even mean that the very idea that the government should get involved in drawing up a curriculum for schools is illegal?

MARTIN VAN STADEN: It's a radical thing to say but I will go as far as to say it, yes. The constitution I think is quite clear, if it said that it must adhere to the state's curriculum then I would have said no, we need to adhere to the state's curriculum. It simply does not. Now, you may make an argument and say that the quality of the education is probably determined by what the curriculum is, so if it's just sitting under a tree and chatting about the day's events, you can probably make an argument that this independent school is not of an equivalent or superior quality to a state school and, therefore, it cannot be registered. But I think on the whole that is not something that happens in a free market, people don't just do things that cost them money and don't yield them any benefit. In a free market a school is going to teach you what you need to get ahead in life with and if they don't then that school will go out of business. It's basically economics 101. So that's not something I would concern myself with and I think that applies to basically any industry, but we've come to a point, as a society, of saying government must take responsibility for everything. We as individuals no longer need to take responsibility for anything because the government will do it for us and that now includes education. If my child's education is not good, it's something that the state needs to take responsibility for. Whereas in a free market you just say okay, I'm done with this school, I am taking my kid out of this school, I'm putting him in the next best school and, therefore, that school will grow, it will make money, it will be quality in that school and the previous school will crumble. But we've created such a state-centric education system that you can't really do that anymore because the state now not only controls its own schools but it controls independent schools because of this mischief basically, where the minister has just decided that I can now make any regulation that all schools must now agree with, so I have basically enlarged the constitution. The constitution says no race discrimination and good quality, and I, being a god minister, have added more requirements. That to me is a bit perverse. The constitution provides the ceiling, it says what the right is, you cannot as government say I am going to make it even more onerous for you to exercise your right, otherwise there is no need for a constitution, just say that government may regulate education. So it's quite perverse and that's just an example, education, of how adherence to the rule of law can actually improve our economy and the outcomes of social life, education.

 

Land expropriation without compensation will destroy our economy'

 

CIARAN RYAN: I was just looking at private schooling in South Africa and that's why I'm interested in it, there are 23 000 public schools in South Africa and there are about 3000 private schools. But what is one of the great success stories of South Africa is the growth of the private schooling sector like Curro and ADvTECH, they are growing phenomenally, and they add new campuses and new schools every year. It's quite clear that people from every racial background in South Africa are not happy with the quality of education in the public sector. That said, there are some very, very good government-funded schools. But in general, that's not the case, if you are from rural Limpopo, you are pretty much certain that you are not going to get the same kind of education that you're going to get in Johannesburg. So can we just switch tack here, one of the big things that has been discussed for the last year or two is land expropriation in South Africa. It's become a very emotional issue and, of course, it's tied up in South Africa's past with apartheid and so on. There are, I'm sure you would agree, terrible unfairness embedded in the system, where you do have a very high proportion of land owned by white people. Now, it's an unfortunate reality of South Africa that you are still classified by your race. It's a continuation of the whole apartheid system here, if you fill out government forms here you declare whether you are white, black, Asian or coloured, and coloured to an American is a very offensive term but, of course, here it's not, it's mixed race. Now, land expropriation, there are those in the governing party, the ruling ANC party who would say that we need to change the constitution, there are people in the Democratic Alliance who would say no, the law allows for this, there is already ample provision for that in law. But you make the point that this is a very dangerous road that we are going down here from a legal point of view, and it's not just the question of the land expropriation issue, it's what it means for respect for law going forward, ever after. Just explain that.

MARTIN VAN STADEN: Let me get to what I think is the biggest rule of law concern of expropriation without compensation, and that is, from my perspective at least and I think it's true, that government has done a sleight of hand here. Basically, what government talks about when it is in public, when President Ramaphosa talks about expropriation is they are talking about restitution. They are saying that black people's land was taken from them by force, by the apartheid state and by previous colonial government, and those black people should be given their property back. Yes, I agree 100%, that is not only a legislative institution in our law, the Restitution of Land Rights Act of the 1990s, it is a fundamental principle of common law, not only of Roman-Dutch common law or Anglo-American common law, but of African common law, customary law, restitution is the number one principle. If something was taken from you, you have the right to get it back. Everyone agrees. Government is using that to push through this amendment to the onstitution, which includes a whole host of other things that go far beyond restitution, and government does cnot talk about that, and it basically sells it on the plate of restitution when that is absolutely not the primary thing that it will be used for. What it will be used for primarily we have seen it in Venezuela, we have seen it in Zimbabwe, we have seen it in North Korea, we have seen it in every country that has…

CIARAN RYAN: In all the failed states.

MARTIN VAN STADEN: Yes, in all the failed states where they have decided that property rights are not really that important. What happens is that they implement a programme of so-called redistribution, which is different from restitution. Redistribution is that you see a plot of land that you, as a politician, quite like, it looks nice, and you think that it's unfair for the owner, who is black, white, whatever, to have that property, you don't like him having that property, even though he acquired it fairly, he did not steal it. The history of the property is fine, it was never taken by the apartheid or colonial government, it's 100% legitimately owned by the current owner, you don't like that. So you go to him and say your land has been identified for redistribution, I am going to take it from you with compensation currently, without compensation in the future and in theory we will give it to some poor person but that, as we know, does not happen. It's going to be owned by the state and it's going to be leased to someone. That is redistribution and that destroys the economy. So that is what government is doing, it's a fraus legis, a fraud of law, it's also a recognised concept in our law and that is that government is saying it's doing one thing, which it is actually not doing, in fact. So that is the rule of law concern and the Free Market Foundation has tried to make this point, when we go onto media, when we're in the press, we believe in restitution, as should everyone, but that is not what the government is doing. The government wants to take away your right to own secure private property by removing your very important right to receive compensation when that property is expropriated. So the notion of expropriation without compensation is a contradiction in terms. The concept of expropriation has always been married to compensation. Expropriation entails compensation, it is part of the definition of the term. So the idea of expropriation without compensation is naked theft, it is a seizure of your property, even though you have done nothing wrong, even though the property that you own is not actually the property of a black person who got dispossessed of it 100 years ago. So there's a very tyrannical streak with expropriation without compensation and it will - this is not disputable – it will destroy our economy.

CIARAN RYAN: I think it's pretty much given that anywhere where you have eviscerated, weakened private property rights, if you allow them to take one thing, you allow them, being the government, the authorities, to come for pretty much anything…

MARTIN VAN STADEN: Prescribed assets.

CIARAN RYAN: It really removes that barrier, that rule of law protection that you have. One of the interesting observations on this because I flew up to Zimbabwe, where I grew up, a couple of weeks ago and you're flying over this land, which I have done many times, and you're just looking down at the ground and the entirety of Zimbabwe just appears to be this mishmash of disorganised plots. This is the result of the land redistribution programme there. You cross the border into South Africa, you cross the Limpopo River and when you look down you see organised farms, irrigated farms, it could not be more stark, it suddenly becomes green as soon as you head into Limpopo, and then you compare it to the Zimbabwean side. That's what you've got and you look at what is happening in Zimbabwe at the moment, there are 18 hours a day with no power, that's the result of removing property rights and basically allowing this rampaging government, this rogue government to basically destroy private property rights.

MARTIN VAN STADEN: If I may just say one more thing on that, a lot of people hearing what I'm saying are going to say oh, he's saying black people can't farm. That's absolutely not what I am saying and that's absolutely not what you're saying. The reason Zimbabwe is brown and yellow, and South Africa is green, is because we have secure property rights. That means that if you are a black farmer and you know that when you wake up tomorrow morning you will know that farm will still be yours, there's not going to be some politician who now owns your farm, you are going to invest in that property, you are going to develop that property, you are going to try and maximise your profit that you make from selling your harvest. That is why a black farmer who owns his property is just as successful as a white farmer who owns their property. But in Zimbabwe and now increasingly in South Africa, private property gets expropriated, it's owned by the state and it's leased to these so-called farmers. They are not going to invest the same amount that an owner would into that property because they know their lease may expire in a year or if you have this much lauded 99-year lease…

 

SA agricultural production declined 25% since 2017

 

CIARAN RYAN: You're not going to upgrade the land; you're not going to invest capital.

MARTIN VAN STADEN: You know that when your children have taken over the property, it could be taken from them. So even if you own the property, like in title, if there is an institution like expropriation without compensation, then you are also not going to invest. So even if you are the real undisputed owner, the fact that government has given itself the power to come and take that property at any time, without paying you a cent, you will not invest in it. That is why agriculture has declined I think by something like 25% productivity, I may be wrong, since December 2017 when expropriation without compensation was adopted as a policy principle for the African National Congress, and in February 2018 Parliament adopted it as their policy. People are not investing in their farms anymore, they are the undisputed owners but they are saying we don't really know what's happening here, so we're not going to buy new implements, we will still farm but we are not going to develop our property anymore, we're not going to hire new people because government is taking the right to just seize our property and that doesn't sit well with us. So even the threat of expropriation without compensation needs to be totally absent from society, it mustn't even come up, as it does not in America, imagine Donald Trump saying we are going to expropriate property without compensation. There will be a civil war, a real civil war. So that should not happen in South Africa and if it happens then you'll see our economy growing by 0.5% or declining by 2% a year and we are seeing that now.

CIARAN RYAN: Do you think this expropriation of land will actually…or the amendment of the constitution to allow expropriation without compensation, do you think that will be passed by Parliament?

MARTIN VAN STADEN: Unfortunately, I am a pessimist, so I do think there is going to be an amendment. Whether Parliament does this in a reckless Zimbabwe manner that is the question for me. So there is a way for Parliament to do this in a way that does not wreck the economy, and that is by saying that compensation is not necessarily in cases where state land, abandoned land or land used for criminal enterprises can be expropriated because that's not expropriation. You cannot expropriate state land because it's your own land, you cannot expropriate from yourself, you cannot expropriate abandoned land because the owner has abandoned it, it doesn't belong to him anymore. So stuff like that, which there have been hints at, the land panel that recently reported back, it seems like that's basically what they are recommending. They are saying that government must target state land, abandoned land and hopelessly indebted land. That's somewhat dangerous, it's not that bad as simply saying when property is expropriated you don't need to pay compensation, that would be a total disaster. But if Parliament is specific enough, and we hope that they are, about when property may be expropriated without compensation and if they target very specifically government land, abandoned land and stuff like that, then it will not be the end of the world, our economy can survive and things can basically go on as normal. We will still have decline because it's not like we're strengthening property rights, but it won't be the crash of Weimar Germany or Zimbabwe or Venezuela. So there is a way for Parliament to do this responsibly but, of course, we would rather that they not fiddle with the constitution because the moment you start amending the Bill of Rights, and it's important to note that this will be the first time since the constitution came into operation that we've amended the Bill of Rights. We have amended other parts of the constitution, very technical provisions, not really a big issue. But now we are actively…

CIARAN RYAN: This is the first one involving the Bill of Rights.

MARTIN VAN STADEN: Yes, now government is basically saying we are going to take rights away from you or we are going to add new rights for you, and, thus, go against the founding value of the constitution, which says that South Africa is founded upon the advancement of human rights and freedoms. That is a founding value. If rights get taken away, can you really say that that's still the case, I don't think so. So there may be a challenge in and of itself there saying that taking away the right to compensation is not only contrary to the rule of law but also contrary to Section 1 (a) of the constitution, which commits South Africa to advancing human rights, not removing human rights.

 

Redistributive laws are killing the SA mining sector

 

CIARAN RYAN: We're running out of time but just some quick answers, if you will. In certain sectors, laws drafted by the government I think have been suicidal, I'm thinking of the Mineral and Petroleum Resources Development Act, which has driven mining investors out of South Africa to other countries like Ghana, Zambia, Democratic Republic of Congo and elsewhere. Is there no socioeconomic impact study required to ensure these laws do not have unintended consequences? These are laws…you can see what they're trying to do, they're trying to redistribute, they are redistributive laws, but they have ended up just killing investment in the mining sector, and that's just one sector, we could go through others.

MARTIN VAN STADEN: In that case government now owns basically all the minerals in South Africa, it says the people own it but, of course, government owns it at the end of the day and that is definitely what led to the outflow of investment and the act itself, the Mineral and Petroleum Resources Development Act, gives the minister extremely broad powers, basically to regulate anything and everything that has anything to do with mining. The mining industry has said time and time again that we are not going to invest in this environment, and we have seen that, the mines are leaving. This is simply a rule of law violation again that has led to economic decline. Before 2004 when this act came into operation, South Africa was one of only three or four nations in the world that had private minerals, including the United States, and we had one of the most developed and strong mineral industries in the world. Government basically in the name of a socialist ideology they decided to squander that. So yes, that in itself is ridiculous.

CIARAN RYAN: You get this odd thing where you have a piece of land that has two sets of rights on it, you have the farming rights, the surface rights, and you have the underground rights. So this is an amazing legal contrivance that you have the same property with two sets of rights on it.

MARTIN VAN STADEN: Yes and the common law solves this because in common law we have something called the heaven to hell rule, if you own the surface land you own everything right to the core of the earth under that and you own everything to the heavens above that. That is the common law answer. Government, of course, came with its legislation and said no, let's make life a little bit more difficult for everyone and come up with this contrivance. It's ridiculous.

CIARAN RYAN: If you were looking around for a perfect model or as close to one as possible, I'm talking about a legal model, which country would you choose?

MARTIN VAN STADEN: I wish I could answer that. I cannot think of one country that is…

CIARAN RYAN: It's a pretty hopeless picture, isn't it?

MARTIN VAN STADEN: It is, and people would think that I would say the United States, bastion of freedom, no. America is basically where this problem started, Congress passes what they call skeleton legislation and they expect the bureaucrats to add the meat onto that legislation through executive orders, the president can make executive orders on basically anything, and their regulations. So America is one of the big culprits in this destruction of the rule of law and, of course, Britain used to be the home of the rule of law, Dicey, Jennings, all these great scholars who came up with this doctrine that government must be limited, must not be arbitrary, must be reasonable. But, of course, Britain is where the decline also started, I think it was Lord Hewart or someone like that who wrote in the early 1900s The New Despotism, where basically he discussed this whole thing, where bureaucrats now have dictatorial powers that have been granted to them by Parliament. So it's not Britain, it's not America, I really cannot give you an example, unfortunately. South Africa is very fortunate, we have the rule of law as a founding value and that's a lodestar that we can use to become that country. It's quite simple, Parliament needs to stop giving regulators the power to make law through regulation, Parliament gives them that power, they don't just take it, and Parliament must write shorter laws, must write clearer laws and must write better laws in general, and far less legislation, please.

CIARAN RYAN: There are thousands of pieces of legislation that have been written in the last 25 years and it's become mind-numbing, particularly when you get into the area of black economic empowerment and the regulations associated with that. You need a whole team in a company who can tick those boxes and make sure that you comply. Let's just give a punt for the book, The Constitution and the Rule of Law: An Introduction by Martin van Staden. This sounds like an academic book but it's actually very readable, it's a very accessible book and it's got some great practical insights. I learnt a tremendous amount, it really translates the law into something that you can engage with and you can critique, that's very, very important. The law is a given but you've taken a helicopter view and you've gone down and explained where government is overstepping its powers and we need to be reminded of this time and time again because in a way if you look at the history of the human struggle is a history for individual freedom and that freedom is under relentless assault all the time by government, it's just the nature of power. I think you've done a great job here just to say hey, there are red lines and, government, you have crossed them. I think perhaps the ministers don't even know and they should read this, and bureaucrats.

MARTIN VAN STADEN: Absolutely, and our judges especially, they've made themselves complicit, our courts, our lauded courts. We always say that the courts are great and to an extent they are better than the other branches of government, but they have sanctioned this. So we need to be very careful about just taking the lead from the courts and say no, even your judgements can be questioned. That's very important.

 

We have an ideology problem in our courts'

 

CIARAN RYAN: Yes, and I guess more academics coming forward and critiquing judgements that come out of the Constitutional Court and the Supreme Court. It does seem that the law becomes more and more of a gamble because if your starting point is, I am here to transform. Well, that's an interpretation of a law, that's a spin. That's not application of the law, just apply that, do your job, judge.

MARTIN VAN STADEN: We have an ideology problem in our courts, in our government in general, and what we need is our judges need to say these are the best principles of law that have come over thousands of years and the law as an institution that protects individual freedom needs to be preserved. What government's policy objectives are, transformation, that's all good and well but that is not our job as judges to implement, we need to speak the law. Our courts haven't been doing that, especially the Constitutional Court, it's been very reckless with this and we need to be extremely careful.

CIARAN RYAN: Last question, any books that you'd recommend, apart from your own.

MARTIN VAN STADEN: Unfortunately, most of the books in this category are very academic, I think I'm one of the first to write a non-academic book on it. So thank you for that compliment on it being very readable, I'm glad. But if you are more of an academic mind, it's always good to start with The Introduction to the Law of the Constitution by A.V. Dicey. It's a very old book but that is basically the origin of this notion of the rule of law

CIARAN RYAN: And he's talking about the English Constitution?

MARTIN VAN STADEN: Yes, the rule of law is basically something that originated in the context of an uncodified constitution. Dicey noted all these principles of the rule of law that I tried to simplify in my book. So I think that is a good place to start and then you'll find other books like The Law and the Constitution by Sir Ivor Jennings, also in the British context. Those are some of the books but please, I tried my best in this book to take those academic concepts and make them understandable in a South African context, but everything can be extrapolated to whatever your context is, wherever you are. The book is available for free online at www.ruleoflaw.org.za The PDF is available for free online but you can buy a hardcopy at the Free Market Foundation in Bryanston.

CIARAN RYAN: This is CFO Talks, so we are addressing the finance community and I think you have to be a bit of a polymath, no matter what you are doing in this world today, whether you are a CEO or CFO, you need to understand the environment in which you are living, and I found this to be one of the most important books, and I do try to get through quite a few each year. It was one of the most important books I read this year because I learnt something fascinating and I really urge people to go to the Free Market Foundation and get the book, it's called The Constitution and the Rule of Law: An Introduction. Martin van Staden, thank you very much for coming in.

MARTIN VAN STADEN: Thank you for having me.

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