“Because the people of South Africa finally chose a profoundly legal path to their revolution, those who frame and enact constitution and law are in the vanguard of the fight for change. It is in the legislatures that the instruments have been fashioned to create a better life for all. It is here that oversight of government has been exercised. It is here that our society with all its formations has had an opportunity to influence policy and its implementation.”
President Nelson Mandela, National Assembly 1999
South Africa is a constitutional democracy that is characterised by multiparty engagement on any major legislative and related decisions made. The legislature is constituted in a way that offers representation to all South Africans. It is to be inclusive insofar as it is to provide a multi-party system of government, universal suffrage and regular elections. The implementation of these values is secured by provisions spelling out the political rights of citizens and requiring regular elections based on proportional representation. The legislature must further respect participatory democracy and ensure proportional party representation in their proceedings. The opposition party, the second largest in terms of the mandate from the electorate, has powers – by law – to challenge decisions taken by the majority party. The majority party might use its numerical power in legislative and administrative houses to ram decisions through. However the constitutional democratic powers give authority to the opposition leadership to challenge the ruling party leadership to rescind the decision. This is leading within the confines of the law in a democratic state.
The principle of majority rule is one of the basic tenets of democracy. This entails that in an election of any kind – shareholder motion, passing of a legislative bill – the party with most votes wins. While it is accepted that the majority vote wins, democracy makes a provision for minority rights on the basis that majority rule does not equate to supreme or absolute power. Without such a provision, democracy could result in what Alexis de Tocqueville stated is the ‘tyranny of the majority’. In his essay Tyranny of the Majority, Chapter XV, Book 1, Democracy in America, de Tocqueville famously wrote:
"If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength. For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them."
De Tocqueville’s insight speaks to the notion that democracy guarantees the expression of the popular will through majority rule, but the majority should not abuse its power to violate the basic and inalienable rights of the minority. Democracy presents that delicate balance that must be respected in order for it to function. This means that the majority cannot automatically assume that it has more rights and that the minority has less rights. Rights are inalienable and indivisible; they do not apply more to those who form part of the majority and to lesser degrees to minority voters. Take for example the South African Constitution’s Bill of Rights. The provisions within the Bill apply equally to all those who live within the borders of South Africa. The right to dignity cannot be divided and allotted according to majority or minority voting status. Democracy is a system of rule by laws, not individuals. In a democracy, all citizens are equal under the law.
South Africa as a constitutional democracy abides by the provision of the Constitution. The Constitution places limits on government power. It achieves this through:
These limitations further put in place mechanisms to curb the potential of the ‘tyranny of the majority’ to take effect. The mechanisms are designed to maintain a system of checks and balances. The checks and balances are integral to a well-functioning democracy. In his chapter Democratic Political Leadership in Political and Civic Leadership: A Reference Handbook edited by Richard Couto, political scientist Eric Thomas Weber explains:
“Democratic principles accord power and authority to majorities, but the rights of a minority impose limits on what the majority can do. For example, the possibility of a majority voting to remove civil and even human rights from a certain minority of the voters and to exclude them from future participation in government led thinkers as early as Aristotle to believe that democracy, in this sense of majority rule for the benefit of the majority, would be an illegitimate form of government. Democratic political leaders, therefore, have a duty insofar as they are committed to democratic values to uphold the majority's wishes and to protect the rights of political minorities.”
Leading within the confines of the law means to respect and embody those basic principles of democracy. In A definition and illustration of democratic leadership, Human Relations (1994), John Gastil defines democratic leadership as:
"Behaviour that influences people in a manner consistent with and/or conducive to basic democratic principles and processes, such as self-determination, inclusiveness, equal participation, and deliberation".
The rule of law is an overarching principle of democracy. The rule of law is the principle that no individual is above the law, not a royal or an elected president. The Rule of Law preserves and protects the rights and property of individuals and corporations. It safeguards against arbitrary governance, dictatorship and mob rule and is central to the stability of government, the preservation of human rights and the economic and social development of society. In this manner, a government can lead within the confines of the law.
When the Constitutional Court ruled against the Presidency that the appointment of National Director of Public Prosecution, Advocate Menzi Simelane was unlawful, the Presidency respected the decision.