Oplettende na die letter ⋯ Oftewel: Die vermoë om aan 'n stuk papier gehoorsaam te wees

Abstract

The article is the outline of an argument of a public administrationist pleading for closer attention to the letter of law in order to further a better society in South Africa in 2015. The virtue of adherence to the letter of law is expounded. The article does not advocate attention to the letter of the law, as opposed to the spirit of the law, as a universal ideal, but argues for this in a specific context. It goes against the grain of current thinking in Public Administration, which promotes flexible, innovative and enterprising behaviour in public officials. The logical structure of the article consists of: a societal analysis, including the identification of competences that may be lacking in our time; a discussion of discourses dealing with the question of abiding by the letter and the spirit of the law and how this pertains to the South African Constitution; an analysis of the conditions of literalness and of its dangers; a discussion of the importance of writing and reading; and finally a suggestion on how unsuitable prescriptions should be treated by the state. The conceptual distinction made by the 19th-century sociologist Ferdinand Tönnies between community (Gemeinschaft) and civil society (Gesellschaft) is used to emphasise the need for formal regulation in a social situation such as the South Africa of our times. Because South Africa as a state is a Gesellschaft, one should face this fact and not treat it as if it were a Gemeinschaft. When lawlessness reigns the Gesellschaft may collapse. Laws and other rules make living together as a society possible. That means we ought to see ourselves as members of the group to which the legislation concerned applies. The article also briefly touches on the functions and advantages of administrative rule-making. Writing is of special importance in this regard. We cannot do without it. Written law affords the tyrant less protection than oral law. Written law promotes democratic transparency, provided it is drafted in language ordinary people can understand. In the long run the content of what was agreed upon in, for example, the Constitution of the Republic of South Africa,1996, will become more important than the activities of elites that resulted in the adoption of the text. The letter of the law is defined as that which is in writing as opposed to that which is not written. The opposition of the letter of the law and the spirit of the law is not simple, since the spirit of the law can also be written down. It is conceded that the letter of the law may have to be interpreted, but ideally by using other letters in the form of written guidelines. The need for interpretation is illustrated by means of section 217 of the Constitution, 1996, which deals with public procurement. The interpretation of this section has not been dealt with definitively because it contains general principles, but the interpretation is the interpretation of the letters in that section. The ability to submit oneself to the written letter of the law (and other written prescripts such as the rules of a game, road signs, musical scores and contracts) is an achievement of our civilisation and is heavily influenced by the three great religions of the book. The skills of focussed reading and fine interpretation should be valued. The Constitution,1996 is not treated literally enough in our society. Issues such as transformation that are not explicitly defined or provided for in the Constitution are treated as if they were the point of the document, whereas an issue such as equality, which is explicitly provided for, does not get the attention it should. The unwritten spirit of the Constitution, which is so often invoked, does not exist as a unitary canon of interpretation, because the Constitution is the result of contestation. The spirit underlying constitutional provisions may be controlled too easily by the powerful if it has not been reduced to writing. The role of writing and reading in the rule of law is discussed. When regulations are made by the executive, or policy is applied by street level bureaucrats, policy divergence can occur. Staying true to the letter of the law under such circumstances requires special skills and intelligence. Not every letter of the law should be obeyed. Legislation can be unconstitutional or patently unjust. They should not blindly be adhered to. Provisions that are not acceptable but still legal ought to be obeyed. They should be amended, not by an incremental process of gradual neglect and disobedience, but by processes of formal revision within a model that can be described as punctuated equilibrium. Temporary obedience to ill-conceived rules is a cost of democracy and civilization. The article ends with a suggestion that we may be obedient to the wrong things today.