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Copyright 2015. Oxford University Press Southern Africa.
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, Chapter 1
The development of administrative law in South Africa
HUGH CORDER
1.1 Introduction
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.
1.2 Defining administrative law
1.2 A working definition
.1 Administrative law as constitutional law
1.2.1 Two sides of public power
.1 Administrative justice
1.2.1 The role of the legislature
.2
Public authority and functions
1.2.1
Administrative law as rules of law
.3
1.2.1 Rule of law
.4
The development of South African administrative law
1.2.1
The
.5 consequences of ‘judge-made law’
The
1.2.1shifting line between the private and public spheres
The
.6 growth of discretionary authority
The
1.2.1distinction between executive and administrative authority
1.3 1.3
.1 .7
Distinguishing formally between review and appeal
1.3 The peculiar character of South African administrative law
.2 Conclusion and defining some basic terminology
1.3
.3 reform of South African administrative law 1990 to 2000
The
1.3 First stage of reform
.4 Second stage of reform
1.3 Third stage of reform
.5
Fourth stage of reform
1.3
.6 Superstructural reform
Copyright 2015. Oxford University Press Southern Africa.
1.41.3
Outline of the general structure of the Promotion of Administrative Justice Act 3 of 2000
.7
(PAJA)
1.4
.1
Outline of the various avenues to judicial review of administrative action in South Africa
1.4
.2
Concluding remarks about the current state of administrative law, and some challenges
1.4
The current state of administrative law
.3
Some challenges facing administrative law
1.4
.4
1.6 1.51.4
.5Introduction
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, 1.7
Administrative
1.7 law is everywhere. The cellphone service that you use, the public transport system
which brings
.1 you to your class, work or home, the preparation and packaging of the food you buy in
a supermarket,
1.7 and so on, are all regulated by government agencies, whose actions are subject to
1.1
administrative
.2 law.
Administrative law is concerned with the exercise of public power or the performance of a public
function: it is indisputably part of ‘public law’. An effective system of administrative law is a
fundamental element in the idea of the ‘rule of law’, and thus critical to the transformative nature of
constitutional democracy in South Africa. Perhaps one of the most-quoted statements in judgments
of the courts is that written by Professor Mureinik1 in 1994, that the Constitution demands that we
must move from a ‘culture of authority to a culture of justification’. Mureinik was a leading
administrative lawyer, and he argued strongly that administrative law was a key element in
transformative constitutionalism.2
The purpose of this chapter is to provide the context for all the chapters that follow in this book.3
The scene will be set by defining administrative law, by describing critically its origins and
development over the past century or so, and by outlining briefly the basic building blocks of this
area of the law as we know it today.
Before considering the above matters, however, think about the following situation.
REFRAMING
Losing your ID book and administrative law
Imagine that you lose your green ID book. You need it urgently in order to register a cellphone
contract. You go to the nearest office of the Department of Home Affairs, fill in the forms, pay the
prescribed fee of R120, then present your application to the official at the counter. She responds that it
will take four months to process, but if you give her an extra R150, you could have your ID book
within two weeks.
You are angry; this is an attempt to solicit a bribe for the provision of a public service and in any
event, you have no extra cash. What steps can you take to remedy the situation? Do you shout out loud
and accuse the official of corruption? Do you demand to see the supervisor? Do you walk away quietly
and report this conduct at the nearest police station? Do you approach your political representative
(councillor or MP) or your community/religious leader and ask them to intervene? Do you go to a
friend who is a law student or to a lawyer and ask for legal advice? Do you approach the Office of the
Public Protector?
Think about answers to all these questions, each of which points to an aspect of administrative
justice. Write your answers down and once you have completed your study of this book, return to your
answers and consider how your newly developed knowledge of administrative justice impacts on your
responses to these everyday events.
1.2 Defining administrative law
As you will see, the drawing of boundaries around what falls within the scope of administrative law
is one of the most important issues in this area of the law. A good way to assist in developing an
understanding of the subject is to start with a working definition and then to refine that definition by
analysing more closely key aspects of it, by describing what administrative law is not concerned
with, and by isolating a few areas of difficulty.
This raises a theme which will be referred to repeatedly throughout this chapter: you should not
seek (or perhaps better, you are unlikely to find) absolute clarity or certainty on many rules of
administrative law. Most often there is neither an absolutely correct nor wrong answer to a
question, but rather an attempt to find that point on a spectrum or a range of factors which most
comfortably fits the circumstances and demands of the applicable legal framework. So there is often
EBSCOhost - printed on 8/31/2020 11:37 AM via UNIVERSITY OF THE FREE STATE. All use subject to https://www.ebsco.com/terms-of-use 20
Copyright 2015. Oxford University Press Southern Africa.
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 9/1/2020 1:28 AM via UNIVERSITY OF THE FREE STATE
AN: 1104436 ; Quinot, Geo, Bleazard, Janice, Budlender, Steven, Corder, Hugh, Kidd, Michael, Maree, Petrus, Murcott, Melanie, Webber, Emma.; Administrative Jus
in South Africa: An Introduction
Account: s4122826.main.ehost 1
,EBSCOhost - printed on 9/1/2020 1:28 AM via UNIVERSITY OF THE FREE STATE. All use subject to https://www.ebsco.com/terms-of-use 2
, Chapter 1
The development of administrative law in South Africa
HUGH CORDER
1.1 Introduction
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.
1.2 Defining administrative law
1.2 A working definition
.1 Administrative law as constitutional law
1.2.1 Two sides of public power
.1 Administrative justice
1.2.1 The role of the legislature
.2
Public authority and functions
1.2.1
Administrative law as rules of law
.3
1.2.1 Rule of law
.4
The development of South African administrative law
1.2.1
The
.5 consequences of ‘judge-made law’
The
1.2.1shifting line between the private and public spheres
The
.6 growth of discretionary authority
The
1.2.1distinction between executive and administrative authority
1.3 1.3
.1 .7
Distinguishing formally between review and appeal
1.3 The peculiar character of South African administrative law
.2 Conclusion and defining some basic terminology
1.3
.3 reform of South African administrative law 1990 to 2000
The
1.3 First stage of reform
.4 Second stage of reform
1.3 Third stage of reform
.5
Fourth stage of reform
1.3
.6 Superstructural reform
Copyright 2015. Oxford University Press Southern Africa.
1.41.3
Outline of the general structure of the Promotion of Administrative Justice Act 3 of 2000
.7
(PAJA)
1.4
.1
Outline of the various avenues to judicial review of administrative action in South Africa
1.4
.2
Concluding remarks about the current state of administrative law, and some challenges
1.4
The current state of administrative law
.3
Some challenges facing administrative law
1.4
.4
1.6 1.51.4
.5Introduction
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AN: 1104436 ; Quinot, Geo, Bleazard, Janice, Budlender, Steven, Corder, Hugh, Kidd, Michael, Maree, Petrus, Murcott, Melanie, Webber, Emma.; Administrative Jus
in South Africa: An Introduction
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, 1.7
Administrative
1.7 law is everywhere. The cellphone service that you use, the public transport system
which brings
.1 you to your class, work or home, the preparation and packaging of the food you buy in
a supermarket,
1.7 and so on, are all regulated by government agencies, whose actions are subject to
1.1
administrative
.2 law.
Administrative law is concerned with the exercise of public power or the performance of a public
function: it is indisputably part of ‘public law’. An effective system of administrative law is a
fundamental element in the idea of the ‘rule of law’, and thus critical to the transformative nature of
constitutional democracy in South Africa. Perhaps one of the most-quoted statements in judgments
of the courts is that written by Professor Mureinik1 in 1994, that the Constitution demands that we
must move from a ‘culture of authority to a culture of justification’. Mureinik was a leading
administrative lawyer, and he argued strongly that administrative law was a key element in
transformative constitutionalism.2
The purpose of this chapter is to provide the context for all the chapters that follow in this book.3
The scene will be set by defining administrative law, by describing critically its origins and
development over the past century or so, and by outlining briefly the basic building blocks of this
area of the law as we know it today.
Before considering the above matters, however, think about the following situation.
REFRAMING
Losing your ID book and administrative law
Imagine that you lose your green ID book. You need it urgently in order to register a cellphone
contract. You go to the nearest office of the Department of Home Affairs, fill in the forms, pay the
prescribed fee of R120, then present your application to the official at the counter. She responds that it
will take four months to process, but if you give her an extra R150, you could have your ID book
within two weeks.
You are angry; this is an attempt to solicit a bribe for the provision of a public service and in any
event, you have no extra cash. What steps can you take to remedy the situation? Do you shout out loud
and accuse the official of corruption? Do you demand to see the supervisor? Do you walk away quietly
and report this conduct at the nearest police station? Do you approach your political representative
(councillor or MP) or your community/religious leader and ask them to intervene? Do you go to a
friend who is a law student or to a lawyer and ask for legal advice? Do you approach the Office of the
Public Protector?
Think about answers to all these questions, each of which points to an aspect of administrative
justice. Write your answers down and once you have completed your study of this book, return to your
answers and consider how your newly developed knowledge of administrative justice impacts on your
responses to these everyday events.
1.2 Defining administrative law
As you will see, the drawing of boundaries around what falls within the scope of administrative law
is one of the most important issues in this area of the law. A good way to assist in developing an
understanding of the subject is to start with a working definition and then to refine that definition by
analysing more closely key aspects of it, by describing what administrative law is not concerned
with, and by isolating a few areas of difficulty.
This raises a theme which will be referred to repeatedly throughout this chapter: you should not
seek (or perhaps better, you are unlikely to find) absolute clarity or certainty on many rules of
administrative law. Most often there is neither an absolutely correct nor wrong answer to a
question, but rather an attempt to find that point on a spectrum or a range of factors which most
comfortably fits the circumstances and demands of the applicable legal framework. So there is often
EBSCOhost - printed on 8/31/2020 11:37 AM via UNIVERSITY OF THE FREE STATE. All use subject to https://www.ebsco.com/terms-of-use 20
