School of Law (ETDs)

Permanent URI for this community

https://hdl.handle.net/10539/37938

Browse

Browsing School of Law (ETDs) by Keyword "Administrative law"

Now showing 1 - 3 of 3
  • Thumbnail Image
    Item
    Looking back at Gijima: The evolution of self-review in South African administrative law
    (University of the Witwatersrand, Johannesburg, 2023-02-27) Tabata, Nandile Ndiviwe; Hoexter, Cora
    In State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC), the Constitutional Court held that the Promotion of Administrative Justice Act 3 of 2000 could not be relied on by organs of state who seek to review their own decisions and affirmed the principle of legality as the appropriate pathway for state self-reviews. The court suggested that the applicability of the principle of legality in self-reviews does not necessarily extend to cases concerning the judicial review of a decision of an organ of state by another organ of state or when self-reviews are instituted in the public interest in terms of s 38(d) of the Constitution. Gijima is a controversial judgment that has attracted considerable criticism from practitioners and scholars. The widespread criticism relates to the proliferation of PAJA-avoidance, the bifurcation between PAJA and the principle of legality and the judgment’s dilution of the delay rule. This Research Report reflects on the development of self-review in South African administrative law before Gijima; how self-review has evolved since the ground- breaking judgment; and how the courts have in subsequent judgments dealt with the murkiness caused by Gijima. The Research Report concludes that, on the face of it, Compcare Wellness Medical Scheme v Registrar of Medical Schemes 2021 (1) SA 15 (SCA) is a promising solution for the reform of self-review in South African administrative law. The Research Reportalso concludes that legislative intervention may be necessary to make the PAJA more widely applicable in self-review cases
  • Thumbnail Image
    Item
    Procedural fairness and the principle of legality in south african administrative law
    (University of the Witwatersrand, Johannesburg, 2023-10) Khwidzhili, Ndaedzo Mahatm
    The principle of legality is an aspect of the rule of law which was intended only to review non- administrative action. It has been the subject of much development, and has now been developed into a gateway to review that closely resembles the PAJA. The introduction of rationality as an element of legality appears to have been the main protagonist in this development. The courts have, on a number of occasions, grappled with the question whether procedural fairness is a requirement under the principle of legality. Despite procedural fairness having been said to be a fundamental requirement of the rule of law, in Masetlha, the Constitutional Court held that procedural fairness is not a requirement under the principle of legality. Subsequent to that, in Albutt, the Constitutional Court found that rationality encompassed considerations of procedural fairness, and therefore that procedural fairness was in fact a requirement under the principle of legality. This caused an apparent tension between Masetlha and Albutt, which manifested in conflicting case law in relation to the requirement of procedural fairness under the principle of legality. However, the position has now been crystallized by the Constitutional Court, which found that there was no tension between Masetlha and Albutt but rather, that Masetlha was a case of procedural fairness and Albutt one of procedural rationality. This distinction reaffirmed the position in Masetlha that procedural fairness is not a requirement under the principle of legality, and also introduced a new orthodoxy of procedural rationality under the principle of legality. This Research Report illustrates how this distinction is based on a narrow interpretation of procedural fairness (in the form of audi alteram partem) which makes the new orthodoxy untenable. It argues that on a proper interpretation of audi alteram partem, procedural fairness may be a requirement under the principle of legality to the extent that it enhances rationality in decision-making (as was the case in Albutt). Furthermore, in contrast to the position in Masetlha, the Constitutional Court in Motau suggested that procedural fairness itself may be a requirement under the principle of legality. It would seem that procedural fairness may indeed be a requirement under the principle of legality
  • Thumbnail Image
    Item
    The evolution of the test for rationality under the legality principle in South African administrative law
    (University of the Witwatersrand, Johannesburg, 2022) Bekker, Chrisna Jooste; Hoexter, C.
    The principle of legality was confirmed early in South Africa’s constitutional era as a product of the rule of law and the minimum standard to which the exercise of public power must be held to account. It has become an indispensable tool and ‘safety net’ to review administrative decisions where the action which it reviews does not constitute administrative action as it is defined in the Promotion of Administrative Justice Act, 2000. Rationality has emerged as the test applied in such reviews of whether the means applied to reach a decision are rationally related to the ends (the decision). Rationality has however come to comprise elements such as procedural fairness and -rationality that are not always consistently defined or applied by the courts. This variability and unpredictability lead to uncertainty in administrative law review which has the effect of causing the ‘safety net’ to stretch too far – by undermining the rule of law, the principle of legality itself and constitutional democracy