OPINION: DA, FMF and the rule of law as barrier to economic justice

By Lehumo Sejaphala

The law built apartheid. Now it is being invoked to slow its undoing.

In contemporary South Africa, this paradox manifests through the perennial portrayal of the rule of law as a neutral safeguard. In this sense, the rule of law is said to protect against arbitrariness, ensure accountability, and uphold constitutional governance. These are, without any doubt, important functions.

But in a society like South Africa whose inequality was deliberately engineered through legislation, the appeal to the rule of law cannot be treated as politically neutral. It indeed carries consequences for how we understand justice, redistribution, and the limits of state power.

This tension is evident in how actors such as the Democratic Alliance and the Free Market Foundation approach transformative policies like Black Economic Empowerment, employment equity, and land reform. Their opposition is rarely framed as a rejection of transformation in principle. Instead, it is articulated through a particular understanding of the rule of law — that is, one that prioritises legality, predictability, and the protection of existing rights, especially property rights.

At first glance, this position appears unassailable. The state must act within the law. Public power must be exercised rationally. Rights must be respected. But this account of the rule of law is incomplete. It assumes that the present distribution of rights and resources is a neutral starting point, rather than the product of a deeply unjust legal order.

As I previously argued on this publication (OPINION | DA’s rule of law idolatry and the neglect of social justice), apartheid was not an absence of law. It was a system of law. Land dispossession, economic exclusion, and the suppression of black enterprise were all carried out through carefully designed statutes and administrative systems. For the majority of black South Africans, the law functioned not as a shield, but as a mechanism of control and deprivation.

Any conception of the rule of law that ignores this history risks reproducing its effects.

The approach adopted by these actors reflects what can be described as a formalist understanding of the rule of law. On this view, the central task of law is to constrain government. The emphasis falls on procedural correctness, rational decision making, and the stability of legal rules. There is little room in this framework for confronting the historical origins of inequality or for accommodating robust redistributive measures that may disrupt existing arrangements.

In practice, this manifests in a consistent pattern. Policies aimed at redressing inequality are challenged on the basis that they are irrational, procedurally flawed, or inconsistent with constitutional protections. The focus shifts away from the substance of transformation and toward the technicalities of implementation. Redistribution becomes a legal problem rather than a moral and constitutional imperative.

This shift has significant consequences. It depoliticises inequality by treating existing economic arrangements as given. It transforms questions of justice into questions of administrative compliance. It elevates historically produced advantages into legally protected entitlements.

In this way, the rule of law is turned into a barrier to the very transformation the Constitution demands.

None of this is to suggest that transformative policies should be immune from scrutiny. The rule of law remains essential to preventing abuse of power and ensuring accountability. But it must be understood in light of South Africa’s constitutional project. The Constitution does not entrench a narrow vision of legality. It advances a substantive commitment to equality, dignity, and redress.

Section 9 expressly permits measures designed to advance those disadvantaged by unfair discrimination. Section 25 recognises the need for land reform and equitable access to resources. These provisions are not exceptions to the rule of law. They are expressions of it.

To invoke the rule of law in opposition to transformation, without engaging this constitutional framework, is to rely on an outdated and incomplete conception of legality. It is to treat stability as an end in itself, even where that stability preserves the outcomes of injustice.

The real question is not whether South Africa should adhere to the rule of law. It is what kind of rule of law we are committed to.

A purely formalist approach, concerned only with constraint and predictability, cannot meet the demands of a society marked by deep structural inequality. What is required is a substantive understanding of the rule of law, one that is attentive to history, oriented toward justice, and capable of supporting meaningful redistribution.

In a country where inequality was produced through law, the rule of law must play a role in dismantling it. If it does not, it risks becoming a sophisticated defence of the status quo.

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.