Grounds for review of administrative action : the interaction between the constitution, the act and the common law

[摘要] ENGLISH ABSTRACT:South African administrative law has undergone drastic changes since the inception ofthe interim Constitution, which elevated 'administrative justice' to a constitutionallyentrenched fundamental right in section 24. Although the successor of this section, the'must administrative action' clause in section 33 FC, did not enter into force on 5February 1996 with the rest of the Constitution, it required more changes toadministrative law in the form of legislation, when read together with item 23 Schedule 6FC. The two most significant factors that brought about change were the passage of thePromotion of Administrative Justice Act 3 of 2000 in terms of section 33 FC read withitem 23 Schedule 6, and the ruling of the Constitutional Court in the PharmaceuticalManufacturers case.This study shows that in order to give effect to the requirements of the Constitution, thePromotion of Administrative Justice Act and the ruling of the Constitutional Court,administrative law must be reorganised. When this happens, section 33 FC, which givesforce to the common law that informs administrative law, becomes the starting point inadministrative law matters. Although the Act exists under the Constitution and parallel tothe common law, Parliament foresees that the Act and the common law will in timebecome one system of law. It further provides for the direct application of theConstitution by those who cannot find a remedy in the Act.The study further shows that, as not all the common law constitutional principles thatpreviously provided the common law grounds for review of administrative action havebeen taken up by the Constitution, the possibility exists that some of the common lawgrounds do not continue to be relevant to the review of administrative action. The Act,which articulates the right to 'just administrative action' as viewed by government,contains most of the common law grounds for review. It is therefore argued that, afterthe Act has entered into force, the continued relevance of those that have been omittedfrom the Act, needs to be determined before they can be used through the directapplication of section 33 FC. To test for relevance, the requirements in section 33(1) Fe, 'lawfulness', reasonableness'and 'procedural fairness', are therefore interpreted in the study in order to determinewhich statutory grounds relate to each and which common law grounds have beenomitted from the Act. The conclusion reached is that grounds available for the review ofadministrative action consist of the statutory grounds for review together with the omittedcommon law grounds that continue to be relevant to the judicial review of administrativeaction.

[发布机构] Stellenbosch University