More specifically s33 of the constitution prescribes

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More specifically, s33 of the constitution prescribes that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Accountability and transparency is further entrenched by s33(2) which holds that those rights that are adversely affected have a right to request reasons for any decision affecting such rights 15 . Upon reading PAJA, an interpretation that enhances s33 and it’s corresponding rights must be favoured over that which severs it. A meaning which embraces public involvement at every level of decision making must be encouraged in order to promote a culture of justification. In saying this, the inclusion of legislative action under the scope of PAJA would be result in there being a formal obligation on government within the administrative law scope that holds government accountable to the public for their law making decisions, and in some cases provides a means for the public to voice their opinions/concerns. This will serve to bridge the gap between the public and government, thus creating a more democratic, transparent and open government. Historical Perspective As a further consideration I wish to address the value of the right to just administrative action from a historical perspective. Sachs v Diamonds 16 illustrates how the courts reluctance towards intervening in matters of government can impede the natural course of justice. This case concerned the issuing of a banning order by 15 The Constitution, s33 16 Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11
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the minister of justice which prevented the plaintiff from entering areas of requisite areas of employment. The courts held that there was no right to review unless impliedly incorporated into the judgment. This illustrates the risks of the courts in approaching a narrow scope to administrative law, and the corresponding reading of PAJA. Our law is at risk of reverting back to its distressed form. Previously administrative law reflected a dismal science based on coercion rather than justification. This was owed to the reluctance to interfere, which resulted in the law being entirely judge developed. It is notorious that substantial discretion in the hands of administrator was vital to the advancements of the injustices of the past. It is judgments like Sachs which empowered the reform towards a more inclusive area of administrative law. If the courts were to revert back to a narrow interpretation of legislative action, it would seem that our law would be regressing. A way forward As put forward by Penfold, Sidumo 17 provides a way forward for courts in dealing with legislative action under the lens of administrative law. In line with this, one must ask whether it is Constitutionally suitable to impose the requirements of administrative action on the given legislative act 18 . If so, then the test turns to determining whether legislative action is legislative for the purpose of the exclusions set out in PAJA. For the purposes of PAJA, a legislative act should be excluded based on both the function as well as the institution, in that a function will only
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  • Fall '13
  • ProfAGFagan
  • Law, PAJA

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