Investigating an alternative administrative-law system in South Africa

[摘要] ENGLISH ABSTRACT: This dissertation considers the question whether there are viable alternatives to theconceptual framework within which the South African administrative-law systemoperates, given that the administration now functions under new constitutionaldemands and new approaches to administrative engagement. The intention is not toproffer concrete recommendations for such a system, but only to propose an approachby means of which questions concerning the legal regulation of the administration andadministrative function may be addressed.The dissertation introduces the concept of the contextualised administrative-lawsystem. This concept emphasises the legal relationship between the publicadministration and the judiciary, but is not limited to this relationship. Theadministrative-law system does not operate in a vacuum, though, and is informed bythe conceptual framework within which the system operates. The system is also afunction of its geo-political and socio-economic context.The historical development of the doctrine of separation of powers, as one aspectof the conceptual framework, is traced. Thereby the normative, dynamic and flexiblenature of the doctrine is established. On this basis, the potential and value of a fourthbranch, the administration, within the separation-of-powers doctrine is assessed. Byimplication, the administrative function would constitute a fourth, distinct function inaddition to the legislative, executive and judicial functions.The concept of the administrative-law system is consequently applied to the SouthAfrican context. Firstly, the development of the South African system is outlined and,secondly, the administrative-law relationship is analysed. This discussion establishesthat the system is characterised by an embryonic administrative law, the equating ofadministrative law and judicial review, an emphasis on the rule-of-law or 'red-lightapproach to administrative regulation, a rhetoric of deference, and the supremacy ofthe Constitution of the Republic of South Africa, 1996. Therefore, the system must beinformed by the Constitution and, arguably, by Karl Klare's project of transformativeconstitutionalism and Etienne Mureinik's 'culture of justification.The content of the separation of powers is also investigated by means of anhistorical analysis of the considerations that rationalise the existence of anindependent administrative jurisdiction in France. This entails an exposition of theConseil d'État's structure, organisation and dual function. Principles that describe the French system, other than the pure separation of powers, are discussed, namely, theduality of jurisdiction, the separation of administrative and judicial authorities, theseparation of the administrative jurisdiction and active administration, the maxim 'tojudge the administration is still administering, and the hybrid nature ofadministrative litigation.The legal regulation of public contracts can be regarded as a doctrinal perspectiveof the administrative-law system. The public contract is discussed as one form ofadministration, due to its conceptual ambiguity as a legal instrument on the boundarybetween public and private law and due to the administration's increasing contractualactivity. To an extent the contrat administratif of French law indicates that particularlegal rules are an extension of the broader principles, considerations and institutionalstructures discussed in the preceding sections.This dissertation introduces an approach that emphasises the relationship betweenthe administration and the judiciary as well as the conceptual framework within whichthe administrative-law system operates. Through the application of this approach tothe South African context and to public contracting the key concepts and debatesunderlying an appropriate administrative-law system in South Africa are identifiedand investigated. This constitutes a platform for the development of a particularadministrative-law system and an exposition of viable alternatives to the conceptualframework within which the system operates.

[发布机构] Stellenbosch University