Procedural fairness and the principle of legality in south african administrative law
| dc.article.end-page | 49 | |
| dc.article.start-page | 1 | |
| dc.contributor.author | Khwidzhili, Ndaedzo Mahatm | |
| dc.date.accessioned | 2024-06-14T09:58:30Z | |
| dc.date.available | 2024-06-14T09:58:30Z | |
| dc.date.issued | 2023-10 | |
| dc.description | A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws by Coursework and Research Report at the University of the Witwatersrand, Johannesburg, 2023 | |
| dc.description.abstract | 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 | |
| dc.description.submitter | MM2024 | |
| dc.faculty | Faculty of Commerce, Law and Management | |
| dc.identifier.citation | Khwidzhili, Ndaedzo Mahatm. (2023). Procedural fairness and the principle of legality in south african administrative law [Master’s dissertation, University of the Witwatersrand, Johannesburg]. WireDSpace. https://hdl.handle.net/10539/38663 | |
| dc.identifier.uri | https://hdl.handle.net/10539/38663 | |
| dc.language.iso | en | |
| dc.publisher | University of the Witwatersrand, Johannesburg | |
| dc.rights | © 2023 University of the Witwatersrand, Johannesburg. All rights reserved. The copyright in this work vests in the University of the Witwatersrand, Johannesburg. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of University of the Witwatersrand, Johannesburg. | |
| dc.rights.holder | University of the Witwatersrand, Johannesburg | |
| dc.school | School of Law | |
| dc.subject | PAJA | |
| dc.subject | Non- administrative action | |
| dc.subject | Procedural fairness | |
| dc.subject | Constitutional Court | |
| dc.subject | Principle of legality | |
| dc.subject | Administrative law | |
| dc.subject | UCTD | |
| dc.subject.other | SDG-17: Partnerships for the goals | |
| dc.title | Procedural fairness and the principle of legality in south african administrative law | |
| dc.type | Dissertation |