The urgent necessity for an all-encompassing ideal of re­form for South Africa 1

Abstract

In view of the ironies of the realisation of the democratic ideal, which often do not answer to the exaggerated expectations of the participants, the idea of the regstaat is investigated as an "overriding purpose or transcending value" for reform in South Africa . Important facets emerge with regard to the concept of the regstaat in the legal and political development of the Greeks and Romans w ith the institutionalization of the idea th a t the state is a res publica, and especially the influence of the Roman ius gentium is visible in the legal and political development in Western Europe via the reception of Roman law in the development of the modern differentiated civil law which is based on the fundamental human rights of civil freedom and equality (independent of nationality, public legal status, race, religion etc.) of all people and all societal forms within the territory of the state. A study of the development of the regstaat in England indicates that the institutionalization of the concept of rule of law developed during the "Glorious Revolution" prior to the actual development of the individual political right of the English citizen. Through this it becomes clear that the institutionalization of the regstaat is not necessarily dependent on democracy. While the idea of democracy stresses political freedom and participation, the concept of rule of law goes much further and encompasses not only the sphere of public law (within which political rights constitute apart) but also the sphere of civil law and the curtailment of the power of government with respect to the sphere of internal jurisdiction of the non-state societal forms. Be­ cause of the problems which reform in South Africa faces, the emphasis on political participation for the immediate future can be counter-productive for the institutionalization of the regstaat. The concept of the regstaat which has to be incorporated in a declaration of intent will link reform in South Africa to crite ria of freedom which should be acceptable to all groups and individuals. With the concept of the regstaat as an ideal of reform which should also guide the immediate reforms of the present government, negotiations can be conducted in a more relaxed and less polarized situation - honestly and openly, not only with regard to its institutionalization but also with regard to an eventual time schedule.