In this season of service delivery protests of increasing intensity, some marked by violence and destruction of public property that taxpayers contributions will have to replace at great cost, it is apposite to reflect on the relationship between exacting accountability and the rule of law itself.

All too often angry and frustrated protesters feel compelled by official inertia or lethargy to take the law into their own hands when expressing their dissatisfaction with the state of affairs in local governance. It is not only those who toyi toyi in the streets and construct barricades of burning tyres who are involved. A movement of otherwise law-abiding middle-class ratepayers has seen fit to illegally withhold the payment of municipal rates in an effort to attract the attention of, and extract some remedial action from, municipal authorities who are allegedly in dereliction of their duties and obligations with regard to the provisions of services to ratepayers. Monies so withheld are paid into trust in an effort to give a veneer of respectability to the statutory breach committed by non payment of rates.

Very frequently there are genuine and well founded grounds for the protest action taken. And peaceful assembly and protest are guaranteed human rights in our constitutional dispensation. The problem is that those seeking to exact accountability resort to extra-legal means to do so and thereby exacerbate rather than improve the situation that raises their ire in the first place. The cost of replacing a torched municipal office has to be incurred before money, always in short supply, is spent on the grievances which led to the commission of arson.

A working definition of exacting accountability is to require of those in authority that they reasonably explain their performance and properly justify their decisions. If those in authority are unable to satisfactorily do so, then remedial action is usually indicated. The rule of law on the other hand is a far more complex mechanism. The World Justice Project, which makes it its business to promote the rule of law worldwide through multi-disciplinary partnerships, research and the compilation of the Rule of Law Index, has identified four universal principles that lie at the heart of the rule of law. These are:

I. The government and its officials are accountable under the law.
II. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
III. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
IV. Access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

From this it can be seen that it is not enough to merely hold government to account. This must be supplemented by the substantive components of accountability under just laws if the requirements of the rule of law are to be satisfied. The rule of law can be contrasted with rule by law; the latter does not qualify as a system that deserves to be called a rule of law system. Speaking on this topic at the World Justice Forum in Vienna last year our former Chief Justice, Arthur Chaskalson, remarked that:

"The apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is 'an empty vessel into which any law could be poured'."

The Rule of Law Index is a means of measuring the extent to which any given country complies with the rule of law, not only insofar as the written law is concerned, but also as regards its implementation in practice as experienced by the public. It is in this connection that the incidence of service delivery protests is significant. If the best laws in the world are not properly implemented at grass roots level then in practice the rule of law is not being adhered to properly.

South Africa is one of the countries in which the necessary research has been done in order to compile a Rule of Law Index score. The aspects on which South Africa scores best are that we have a constitution which can only be amended according to law, rights can only be suspended as the constitution dictates, government powers are defined and limited, freedom of thought and religion are protected and the government is subject to independent audits. Where we score worst is in respect of court access without undue procedural hurdles, insufficient competent judicial officers, the punishment of crimes against persons, safe and accessible courts and the sanctioning of police and the military for misconduct.

Service delivery protesters and rates boycotters need to understand that unless they employ legally justifiable means to make their points, they become part of the problem and not part of the solution. The Chapter Nine Institutions, particularly the Public Protector and the Human Rights Commission are freely available to attend to complaints and should be called into action whenever appropriate. The pro bono services of legal practitioners are available as are the services of Legal Aid South Africa and various Ombuds offices. Many non government organizations are well placed to assist, if approached. It is possible to exact accountability without beggaring oneself financially and it is important that the institutions available to disgruntled citizens, including the Courts, be put to better use in the quest for proper service delivery.

The Public Protector even has a mobile unit which could be urgently deployed to areas in which problems manifest themselves. Accusations of corruption involving the municipalities and the police are best investigated by an independent body such as the Public Protector whose mandate to investigate any allegedly improper conduct in state affairs and the public administration certainly covers such matters. The newly appointed Public Protector should be given the chance to show her mettle and to be the new broom sweeping clean. If no complaints are made to her offices around the country the disgruntled members of the public will only have themselves to blame for not involving her in the process of addressing the reasons for the lack of proper service delivery in the country.

Paul Hoffman SC
Institute for Accountability in Southern Africa
www.ifaisa.org