Administrative justice should be a human right. However, it is not easily subsumed into the general body of human rights law because administrative law principles are largely procedural in character, hence, subject to domestic law. In some countries administrative justice is dependent on its development via common law by the courts, while in others is possible to have recourse to a constitutional provision permitting persons whose right is infringed by state action to seek constitutional redress. The article discusses administrative justice as a human right under the South African Constitution with a view to showing potential learning experience for other jurisdictions, and to possibly provide knowledge as to how best the legal framework pertaining to administrative justice could be developed to strengthen the protection of rights violated by action of government or those acting on its behalf. In South Africa, the Constitution and the PAJA constitute the source of the right to just administrative action while the common law ceases to have effect and will continue to inform the content of administrative law and other aspects of public law. The article shows how the Constitutional Court is empowered to develop the common law in relation to the application of the Bill of Rights to natural or juristic persons. The article concludes that constitutional and statutory provisions are available to facilitate the enforcement of the right to just administrative action, ensuring that every person ‘has the right to approach a court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief.’
| Published in | International Journal of Law and Society (Volume 4, Issue 2) |
| DOI | 10.11648/j.ijls.20210402.20 |
| Page(s) | 128-139 |
| Creative Commons |
This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited. |
| Copyright |
Copyright © The Author(s), 2021. Published by Science Publishing Group |
Administrative Justice, Human Right, Just Administrative Action, Judicial Review, South Africa
| [1] | Dyzenhaus D “Dignity in administrative law: Judicial deference in a culture of justification” (2012) Review of Constitutional Studies 88. |
| [2] | De Vos P and Freedman W (eds) South African Constitutional Law in Context (Oxford University Press Cape Town 2014) 456. See also S v Makwanyane (1995) (3) SA 391 (CC) 144. |
| [3] | Minister of Finance and Others v Van Heerden (2004) (6) SA 121 (CC). |
| [4] | Jones M “Administrative justice: Some preliminary thoughts on a (post) modern theoretical perspective” in Creyke R and MacMillan J (eds) Administrative Justice: The Core and the Fringe (Australian Institute of Administrative Law Inc Canberra 2000) 41. |
| [5] | Ramadhani ASL “Judicial review of administrative action as the primary vehicle for the protection of human rights and the rule of law” Paper presented to the Southern African Chief Justices Conference at Kasane Botswana on 7th-8th August 2009 available at https://www.venice.coe.int/SACJF/2009_08_BTW_Kasane/speeches/Ramadhani_Judicial_Review.pdf (date of use 5 March 2021). |
| [6] | Glazewski J (2013) Environmental Law in South Africa (LexisNexis Durban 2013) 5-27. |
| [7] | See Del Porto School Governing Body v Premier, Western Cape (2002) (3) 265 (CC) 84-90. |
| [8] | Harlow C “Global administrative law: The quest for principles and values” (2006) European Journal of International Law 192. |
| [9] | Harlow C “Global administrative law: The quest for principles and values” (2006) European Journal of International Law 187 |
| [10] | Hereafter “the Constitution.” |
| [11] | The President of the Republic of South Africa and Others v South African Rugby Football Union and Others (2000) (1) SA 1 (CC) 136. |
| [12] | Mubanzigi JC “Towards a new approach to the classification of human rights with specific reference to the African context” (2004) African Human Rights Law Journal 94. |
| [13] | Longley D and James R Administrative Justice: Central Issues in UK and European Administrative Law (Cavendish Publishing London 1999) 167. |
| [14] | Thomas R and Tomlinson J “Mapping current issues in administrative justice: austerity and the ‘more bureaucratic rationality’ approach” (2017) Journal of Social Welfare and Family Law 381. |
| [15] | Jones M “Administrative justice: Some preliminary thoughts on a (post) modern theoretical perspective” in Creyke R and MacMillan J (eds) Administrative Justice: The Core and the Fringe (Australian Institute of Administrative Law Inc Canberra 2000) 47. |
| [16] | An analysis of earlier decisions is available in Cartier G (2010) “The legacy of Roncarelli v Duplessis 1959-2009” McGill Law Journal 392. |
| [17] | See Rowley CK Antitrust and Economic Efficiency (Macmillan, London, 1973) 8. |
| [18] | Hoexter C Administrative Law in South Africa 2nded (Juta Cape Town 2012) 3. |
| [19] | Hoexter C Administrative Law in South Africa 2nded (Juta Cape Town 2012) 2. |
| [20] | Historical antecedents of the doctrine of parliamentary supremacy in the UK prevents judges from declaring legislation as ineffective, as laws made by Parliament are not subject to review expect by itself. See Leyland P and Anthony G Textbook on Administrative Law (8thed) (Oxford University Press Oxford 2016) 1. However, contemporary understanding that the supremacy of the Parliament does not imply that it is morally entitled to do what it likes, as any legislation that does not enjoy popular support is lacking in moral authority See Bogdanor V “The consistency of Dicey: A reply to McLean and Macmillan” (2008) Public Law 19. |
| [21] | Mason A “Delivering administrative justice: Looking back with pride, moving forward with concern” 2010 Australian Institute of Administrative Law Forum 5. |
| [22] | Sossin L “Access to administrative justice and other worries” in Flood CM and Sossin L (eds) Administrative Law in Context (2nd ed) (Emond Montgomery Publications Toronto 2013) 502. |
| [23] | Creyke R “Administrative Justice-Towards Integrity in Government” (2007) Melbourne University Law Review 705. |
| [24] | [ ] Craig “Three perspectives on the relationship between administrative justice and administrative law” in Creyke R and MacMillan J (eds) Administrative Justice: The Core and the Fringe (Australian Institute of Administrative Law Inc Canberra 2000) 31. |
| [25] | Craig “Three perspectives on the relationship between administrative justice and administrative law” in Creyke R and MacMillan J (eds) Administrative Justice: The Core and the Fringe (Australian Institute of Administrative Law Inc Canberra 2000) 32. |
| [26] | Dann P “The Global Administrative Law of development cooperation” in Cassesse S Research Handbook on Global Administrative Law (Edward Elgar Publishing Ltd Cheltenham 2016) 418. |
| [27] | Harlow C “Global administrative law: The quest for principles and values” (2006) EJIL 190. |
| [28] | Stack KM “An administrative jurisprudence: The rule of law in the administrative state” (1986) Columbia Law Review 1994. |
| [29] | Harlow C “Global administrative law: The quest for principles and values” (2006) EJIL 188. |
| [30] | Creyke R “Administrative Justice-Towards Integrity in Government” (2007) Melbourne University Law Review 707. |
| [31] | See for example, Cudjoe v Ghana (2000) AHRLR 127. |
| [32] | D’ascoli 2007 The Rule of Prior Exhaustion of Local Remedies in the International Law Doctrine and its Application in the Specific Context of Human Rights Protection European University Institute Italy Working Paper Law No 2007/02 available at http://cadmus.eui.eu/bitstream/handle/1814/6701/LAW_2007_02.pdf?sequence=1 (date of use 2 March 2021). |
| [33] | For example, article 46 (2) of the American Convention on Human Rights 1969 provides that requirement for the exhaustion of local remedies shall not be applicable when. |
| [34] | The domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated. |
| [35] | The party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or |
| [36] | There has been unwarranted delay in rendering a final judgment under the aforementioned remedies. |
| [37] | Similarly, article 50 of the African Charter on Human and Peoples’ Rights 1981 provides that the requirement for the exhaustion of local remedies shall not apply if it is obvious to the African Commission that ‘the procedure of achieving these remedies would be unduly prolonged.’ |
| [38] | Council of Europe/ European Court of Human Rights Practical Guide on Admissibility Criteria 2019 available at https://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf (date of use 7 March 2021). |
| [39] | The Canadian Supreme Court in Roncarelli v. Duplessis (1959) SCR 121 at 141. |
| [40] | Anthony G “Administrative justice in the United Kingdom” (2015) Italian Journal of Public Law 13. |
| [41] | Harlow C “Global administrative law: The quest for principles and values” (2006) European Journal of International Law 193. |
| [42] | Minister of Health v New Clicks South Africa (Pty) Ltd and Others (2006) (2) SA 311 (CC) at para 143. |
| [43] | Corder H “Administrative justice in the South African Constitution” (1998) Admin Review 7. |
| [44] | Act 3 of 2000. |
| [45] | Currie I and Klaaren J “Introduction to the Promotion of Administrative Justice Act” in 2001 The Promotion of Administrative Justice Act Benchbook (Siber Ink Publishers Cape Town 2001) para 1.2. |
| [46] | Section 33 (3) (c) of the Constitution. |
| [47] | To ‘promote an efficient administration and good governance; and create a culture of accountability, openness and transparency in the public administration or in the exercise of a public power or the performance of a public function, by giving effect to the right to just administrative action.’ |
| [48] | See also the values and principles governing public administration listed in section 195 of the Constitution. |
| [49] | See Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council (1999) (1) SA 374 (CC) at para 32. |
| [50] | ection 1 of PAJA provides that … unless the context indicates otherwise, ‘administrative action’ means any decision taken, or any failure to take a decision, by: |
| [51] | An organ of state, when-a) exercising a power in terms of the Constitution or a provincial constitution; or b) exercising a public power or performing a public function in terms of any legislation; or |
| [52] | A natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which affects the rights of any person and which has a direct, external legal effect… |
| [53] | Gamevest (Pty) Ltd v The Regional Land Claims Commissioner for the Northern Province and Mpumalanga (2002) ZASCA 117 at para 11. In Mzamba Taxi Owners’ Association and Another v Bizana Taxi Association and Others (2005) ZASCA 74 (SCA), the appellants contended that permit to operate route was issued irregularly, thereby adversely affected the interests of its members financially. The court held that there was no administrative action because the Provincial Taxi Registrar merely endorsed a voluntary agreement between two taxi associations in terms of how a taxi rank is shared. |
| [54] | Decision by an ‘organ of state’ or a ‘natural or juristic person, other than an organ of state.’ See section 239 of the Constitution for definition of ‘organ of state.’ |
| [55] | Calibre Clinical Consultants (Pty) Ltd and Anor v The National Bargaining Council for the Road Freight Industry and Anor (2010) (5) SA 457 (SCA). |
| [56] | See Jeeva v Receiver of Revenue Port Elizabeth (1995) (2) SA 433 (SE); Gardener v East London Transitional Local Council and Others (1996) (3) SA 99 (E); and Directory Advertising Cost Cutters v Minister of Posts, Telecommunications and Broadcasting and Others (1996) (3) SA 800 (T). |
| [57] | Deacon v Controller of Customs and Excise (1999) (2) SA 905 (SE). |
| [58] | Umfolozi Transport (EDMS) v Minister van Vervoerenandere (1997) (2) All SA 546 (SCA). |
| [59] | Carephone (Pty) Ltd v Marcus NO and Others (1999) (3) SA 304 (LAC). See also Shoprite Checkers (Pty) Ltd v Ramdaw NO (2001) (3) SA 68 (LAC). |
| [60] | See Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others (1999) (2) SA 374 (CC). |
| [61] | The President of the Republic of South Africa and Others v South African Rugby Football Union and Others (2000) (1) SA 1 at para 141. |
| [62] | See Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta Cape Town 2013) 676. |
| [63] | Azeem Hassan Walele v The City of Cape Town (2008) ZACC 11. |
| [64] | For example, there appears to be an unending debate as to whether a freestanding environmental right binding on all nations as with the first generation rights is fully developed or still in an emergent state. See Vlavianos N “The intersection of human rights law and environmental law” in Canada Institute of Resources Law A symposium on Environment in the Courtroom: Key Environmental Concepts and the Unique Nature of Environmental Damage (Canada Institute of Resources Law University of Calgary 2012) 4. |
| [65] | (2009) ZACC 30. |
| [66] | See Leon Joseph and Others v City of Johannesburg and Others (2009) ZACC 30 at para 27. |
| [67] | See Hoban v ABSA Bank Ltd t/a United Bank and Others (1999) (2) SA 1036 (SCA). |
| [68] | 2005 (6) SA 313 (SCA) at para 21. |
| [69] | Note that the SCA excludes the requirement of material and adverse effect on rights. |
| [70] | Transnet Limited v Goodman Brothers (2001) (1) SA 853 (SCA) at para 9. |
| [71] | See Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta Cape Town 2013) 659. |
| [72] | Section 1 of PAJA. |
| [73] | (2012) ZASCA 138. |
| [74] | Act 36 of 2005 (hereafter “the ECA”). |
| [75] | (2012) ZASCA 138 at para 33. |
| [76] | Section 5 (1) of PAJA. |
| [77] | Section 5 (3) of PAJA. |
| [78] | Section 5 (4) of PAJA. |
| [79] | See Pieterse NO and Another v Lephalale Local Municipality (2016) ZAGPPHC at para 42. |
| [80] | 2003 (2) SA 460 (SCA). |
| [81] | 2003 (2) SA 460 (SCA) at para 5. |
| [82] | 1999 (1) SA 374 (CC) at para 58. |
| [83] | The Affordable Medicines Trust and Others v The Minister of Health of the Federal Republic of South Africa and Another (2006) (3) SA 247 (CC) at para 48. |
| [84] | Quinot G “Substantive reasoning in administrative-law adjudication” (2010) Constitutional Law Review 112. |
| [85] | Section 6 (1) of PAJA. |
| [86] | Eden Security Services CC and Others v Cape Peninsula University of Technology and Others (2014) ZAWCHC 148 at para 65. In that case, the court had to consider whether or not CPUT’s decision to appoint security service providers is subject to judicial review under section 33 of the Constitution. The national legislation referred to is the Public Finance Management Act 1 of 1999, which incidentally does not cite the university. The court therefore held that universities are not included in the ambit of section 217 of the Constitution which makes provision for the procurement of goods and services by organs of state and “any other institution identified in national legislation.” |
| [87] | Currie I and Klaaren J “Introduction to the Promotion of Administrative Justice Act” in The Promotion of Administrative Justice Act Benchbook (Siber Ink Publishers Cape Town 2001) 1.30. |
| [88] | (2005) 3 All SA 436 (SCA) at para 36. |
| [89] | See section 6 (2) (h) of PAJA. |
| [90] | Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others (2004) (4) SA 490 (CC) at para 34. |
| [91] | Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others (2004) (4) SA 490 (CC) at para 43. |
| [92] | Devraj Govender v The Minister of Safety and Security (2001) ZASCA 80 at para 10. |
| [93] | See also Nomsa Ellen Dladla and Others v City of Johannesburg and Others (2017) ZACC 42. |
| [94] | (2017) ZACC 42 at para 44. |
| [95] | The opinion of Cameron J is, however, worthy of special interest. While agreeing that the rules were unreasonable, he pointed out that the test for justifiability need not always be against a law of general application. Rather, there is a need first to examine the context and requirement of the specific right underlying the rule under consideration. In the instant case, the question should be ‘is the rule justified in terms of section 26 (2) of the Bill of Rights which required that the action taken must be reasonable?’ That should be the “central enquiry in determining the constitutional soundness of socio-economic rights measures” (at para 63) laid down in Grootboom (2001) (1) SA 46 (CC) at para 42), TAC (2002 (5) SA 721 (CC) at para 68) and Mazibuko (2002) (5) SA 721 (CC) at para 68). |
| [96] | See section 6 (3) of PAJA. |
| [97] | (2005) (6) SA 182 (SCA) at para 120. |
| [98] | See also Earthlife Africa Johannesburg v The Minister of Environmental Affairs and Others (2017) 2 All SA 519 (GP). |
| [99] | See section 6 (2) (e) (iii) of PAJA. |
| [100] | See Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others (2004) (4) SA 490 (CC). In that case, the court considered a string of English decisions and observed that the opinion of Lord Cooke in Secretary of State for Education and Science v Tameside Metropolitan Borough [1976] 3 All ER 665 at 697, that “conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt” is subject to review, provided sound guidance. See also Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA), R v Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd [1999] 1 All ER 129 (HL) at 157, and Secretary of State for Education and Science v Tameside Metropolitan Borough [1976] 3 All ER 665. |
| [101] | Section 7 (1) of PAJA. Effect of delay is discussed in section 3.6 below. |
| [102] | Section 7 (2) of PAJA. |
| [103] | Section 8 of PAJA. |
| [104] | See The Premier, Province of Mpumalanga v Executive Committee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal (1999) (2) SA 91 (CC) at para 34. |
| [105] | The Premier, Province of Mpumalanga v Executive Committee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal (1999) (2) SA 91 (CC) at para 41. |
| [106] | See The Associated Institutions Pensions Fund and Others v Johan van Zyl and Others (2004) (4) All SA 133 (SCA). The Constitutional Court in Bel Porto Governing Body and Others v The Premier of the Province and another (2002) (3) SA 265 at para 88, while considering item 23 (2) (b) of Schedule 6 of the Interim Constitution, held that the provision did not introduce the consideration of substantive fairness as a criterion to determine the validity of administrative action, and that any such a position would drag the courts into the consideration of political or administrative matters. |
| [107] | Where the proceedings relate to the judicial review of an administrative action in terms of section 6 (1), section 8 (1) of PAJA gives examples of orders that is just and equitable which the court or tribunal may give. |
| [108] | (2012) ZASCA 205. |
| [109] | Section 8 (1) (c) (ii) of PAJA. |
| [110] | Section 8 (1) (c) (ii) (aa) of PAJA. |
| [111] | See Gauteng Gambling Board v Silverstar Development Ltd and Others (2005) (4) SA 67 (SCA). |
| [112] | Minister of Environmental Affairs and Tourism v Pepper Bay Fishing (2009) (1) SA 308 (SCA). |
| [113] | (2007) SCA 165 (RSA). |
| [114] | Section 8 (1) (c) (ii) (bb) of PAJA. |
| [115] | Section 38 of the Constitution guarantees inter alia, ‘the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.’ |
| [116] | See Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality and Anor (2017) ZASCA 23 at para 18. See also Gqwetha v Transkei Development Corporation Ltd and Others (2006) (2) SA 603 at paras 22-24. |
| [117] | Stefaans Conrad Brümmer v Minister of Social Development and Others (2009) ZACC 21 at para 78. |
| [118] | See section 9 (2) of PAJA. See also Opposition to Urban Tolling Alliance and Others v The South African National Roads Agency Ltd and Others (2013) ZASCA 148 at para 26. |
| [119] | See The Associated Institutions Pensions Fund and Others v Johan van Zyl and Others (2004) 4 All SA 133 (SCA) at para 47-48. |
| [120] | Section 7 (3) of PAJA. |
| [121] | Wycliffe Simiyu Koyabe and Others v Minister for Home Affairs and Others (2009) ZACC 23 at para 35. |
| [122] | (2007) ZACC 23. |
| [123] | Act 66 of 1995. |
| [124] | See Radovan Krecjir v The Minister of Correctional Services and Others (2016) (1) SACR 452 (GP) at para 18. (2016) (1) SACR 452 (GP). |
| [125] | No 111 of 1998. |
| [126] | (2009) ZACC 23. |
| [127] | See Jawara v The Gambia (2000) AHRLR 107.2000 AHRLR 107. |
| [128] | Nichol and Another v The Registrar of Pension Funds and Others (2008) (1) SA 383 (SCA) at paras 16-17. |
| [129] | [ ] Reed and Others v Master of the High Court and Others (2005) 2 All SA 429 at para 20. |
| [130] | Sossin LM “Access to administrative justice and other worries” in Flood CM and Sossin LM Administrative Law in Context (2013) available at http://digitalcommons.osgoode.yorku.ca/scholarly works/502 (date of use 5 May 2020). |
| [131] | Bel Porto School Governing Body and Others v The Premier of the Province and Another (2002) (3) SA 265 at para 62.2002 (3) SA 265. |
| [132] | Bel Porto School Governing Body and Others v The Premier of the Province and Another (2002), (3) SA 265 at para 31. |
| [133] | Pharmaceutical Manufacturers of South Africa: In re Ex Parte Application of the President of the Republic of South Africa (2000) (3) BCLR 241 (CC) at para 44-46. |
| [134] | See section 8 (3) of the Constitution. |
| [135] | Section 181 (2) of the Constitution. |
| [136] | Section 32 of the Constitution. |
| [137] | Section 34 of the Constitution. |
| [138] | Minister of Health v New Clicks South Africa (Pty) Ltd and Others (2006) (2) SA 311 (CC) at para 111. |
| [139] | Section 195 (1) of the Constitution. |
| [140] | Section 195 (3) of the Constitution. |
| [141] | Section 195 (1) (c) of the Constitution. |
| [142] | Section 195 (1) (f) of the Constitution. |
| [143] | Section 195 (1) (i) of the Constitution. |
| [144] | Section 195 (1) (e) of the Constitution. |
APA Style
Kolapo Omidire. (2021). Administrative Justice as Human Right: A Perspective from South Africa. International Journal of Law and Society, 4(2), 128-139. https://doi.org/10.11648/j.ijls.20210402.20
ACS Style
Kolapo Omidire. Administrative Justice as Human Right: A Perspective from South Africa. Int. J. Law Soc. 2021, 4(2), 128-139. doi: 10.11648/j.ijls.20210402.20
AMA Style
Kolapo Omidire. Administrative Justice as Human Right: A Perspective from South Africa. Int J Law Soc. 2021;4(2):128-139. doi: 10.11648/j.ijls.20210402.20
Share This Article
Twitter
Linked In
Facebook
Copy
Download@article{10.11648/j.ijls.20210402.20,
author = {Kolapo Omidire},
title = {Administrative Justice as Human Right: A Perspective from South Africa},
journal = {International Journal of Law and Society},
volume = {4},
number = {2},
pages = {128-139},
doi = {10.11648/j.ijls.20210402.20},
url = {https://doi.org/10.11648/j.ijls.20210402.20},
eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20210402.20},
abstract = {Administrative justice should be a human right. However, it is not easily subsumed into the general body of human rights law because administrative law principles are largely procedural in character, hence, subject to domestic law. In some countries administrative justice is dependent on its development via common law by the courts, while in others is possible to have recourse to a constitutional provision permitting persons whose right is infringed by state action to seek constitutional redress. The article discusses administrative justice as a human right under the South African Constitution with a view to showing potential learning experience for other jurisdictions, and to possibly provide knowledge as to how best the legal framework pertaining to administrative justice could be developed to strengthen the protection of rights violated by action of government or those acting on its behalf. In South Africa, the Constitution and the PAJA constitute the source of the right to just administrative action while the common law ceases to have effect and will continue to inform the content of administrative law and other aspects of public law. The article shows how the Constitutional Court is empowered to develop the common law in relation to the application of the Bill of Rights to natural or juristic persons. The article concludes that constitutional and statutory provisions are available to facilitate the enforcement of the right to just administrative action, ensuring that every person ‘has the right to approach a court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief.’},
year = {2021}
}
TY - JOUR T1 - Administrative Justice as Human Right: A Perspective from South Africa AU - Kolapo Omidire Y1 - 2021/06/09 PY - 2021 N1 - https://doi.org/10.11648/j.ijls.20210402.20 DO - 10.11648/j.ijls.20210402.20 T2 - International Journal of Law and Society JF - International Journal of Law and Society JO - International Journal of Law and Society SP - 128 EP - 139 PB - Science Publishing Group SN - 2640-1908 UR - https://doi.org/10.11648/j.ijls.20210402.20 AB - Administrative justice should be a human right. However, it is not easily subsumed into the general body of human rights law because administrative law principles are largely procedural in character, hence, subject to domestic law. In some countries administrative justice is dependent on its development via common law by the courts, while in others is possible to have recourse to a constitutional provision permitting persons whose right is infringed by state action to seek constitutional redress. The article discusses administrative justice as a human right under the South African Constitution with a view to showing potential learning experience for other jurisdictions, and to possibly provide knowledge as to how best the legal framework pertaining to administrative justice could be developed to strengthen the protection of rights violated by action of government or those acting on its behalf. In South Africa, the Constitution and the PAJA constitute the source of the right to just administrative action while the common law ceases to have effect and will continue to inform the content of administrative law and other aspects of public law. The article shows how the Constitutional Court is empowered to develop the common law in relation to the application of the Bill of Rights to natural or juristic persons. The article concludes that constitutional and statutory provisions are available to facilitate the enforcement of the right to just administrative action, ensuring that every person ‘has the right to approach a court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief.’ VL - 4 IS - 2 ER -
Information
Email: