Democratizing Review: Justifiability as the Animating Vision of Administrative Law

Abstract

One of the central functions of administrative law is the control of public power by the courts. The relationship between the courts on one hand and the and the executive and the legislature as the arms of government primarily responsible for exercising public power on the other, is often drawn into focus by administrative law. The tension of this relationship is no more easily seen than when courts are asked to review the administrative functions of the executive. The executive is responsible for the development and implementation of policy and the implementation of legislation, yet the exercise of all public power must be consistent with the supremacy of the Constitution and the rule of law. Further, the right to administrative justice in South Africa requires that all administrative action must be lawful, reasonable and procedurally fair. The constitutional commitment to social justice requires that a project of transformation be pursued, and this is reflected in policy and legislation. This article examines how administrative action taken by the executive in implementing socially transformative policy and legislation is controlled by administrative review, and uses the study of specific cases as a springboard to outlining a theory of administrative law that respects the proper role of the courts, the executive and the legislature. The article suggests that basing the relationship between the three branches of government in a democratically defined principle of justifiability will help to ease the tension it currently experiences, by describing the limits of administrative review.

Keywords: Administrative law, rule of law, separation of powers