Administrative Law Under South Africa's Final Constitution: The Need for an Administrative Justice Act
Stanford Law School
113 South African Law Journal 613 (1996)
The bill of rights in the recently adopted South African Constitution is enforced by a Constitutional Court that takes the rights very seriously and is reluctant to limit them. Section 33 concerning administrative justice, provides that "everyone has the right to administrative action that is lawful, reasonable, and procedurally fair," and that everyone whose rights have been adversely affected by administrative action has a right to be given written reasons. However, these rights must be implemented through national legislation within three years of adoption of the constitution. During the three-year period Section 24 of the Interim Constitution (adopted in 1994) provides for self-executing rights to lawful, reasonable and fair administrative action and to a statement of written reasons. Should legislation implementing Section 33 not be enacted in time, these free-standing, self-executing rights will become part of the permanent constitution. The article argues that it is imperative that Parliament adopt an administrative justice act to implement and appropriately limit the Section 33 rights. The broad, free- standing rights provided in the interim and final constitutions are overbroad and uncertain. Absent statutory definition, due process claims have the potential to inundate the Constitutional Court, and to stifle government action in the post-apartheid era. Action is needed to protect the Court's ability to reach other, tremendously important constitutional matters. The article concludes with proposals for adjudication, rulemaking, and judicial review provisions in an administrative justice act. Despite the many urgent demands on its time and energy, Parliament should not neglect the need for an administrative justice act.
JEL Classification: K23Accepted Paper Series
Date posted: April 24, 1997
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