In 1994, the situation changed dramatically when South Africans were granted the right to administrative jurisdiction under our first democratic and supreme constitution. Like other rights in the Transitional Constitution, the rights of Article 24 were strictly protected by the statute of limitations. Rights may be restricted by the legislature only in the sense of a “right of general application”, provided that the restriction is both reasonable and justified “in an open and democratic society based on freedom and equality” and does not negate “the essential content of the law”. [37] However, the very wording of the administrative law clause showed that the well-known fears of overburdening the administration and violating the separation of powers were more acute than ever. The wording also suggested that the authors` belief in conceptualism was as strong as that of the courts, and apparently not clouded by years of living in an apartheid state. This shows that commentators agree that administrative law aims to achieve administrative efficiency and to ensure that this power is tightly controlled so that there is no abuse. In the book Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa[5], it was noted that administrative law is at the heart of public law. It overlaps with constitutional law because both concern state organs and their relations with individuals. However, administrative law differs from constitutional law in that it focuses on a specific branch of the State (public administration) and on a specific activity of the State (administrative action). In the case of President of the RSA v. SARFU, the Constitutional Court held that the administration is the part of the government that is primarily concerned with the implementation of legislation.
For the purposes of the definition, an administrative act is defined as any “decision or omission of a decision” that “affects the rights of a person”, produces “direct external legal effects” and is not expressly excluded from the list of exceptions. The first five items on this list are an attempt to account for the Constitutional Court`s decisions discussed above and perhaps to broaden their reasoning somewhat in terms of executive, legislative and judicial functions. The following four exclusions relate to decisions to initiate or continue prosecutions; decisions of the Judicial Service Commission relating to the appointment of bailiffs; decisions made under the Access to Information Act 2 of 2000; and decisions taken (or not taken) within the meaning of Article 4(1) of the Law on Administrative Courts. [71] Weichers defines administrative law as a set of legal provisions governing the administration, organization, powers and functions of administrative authorities. For Baxter, it is a set of common law principles that promote the effective use of administrative powers, protect against abuse, maintain a balance of fairness and protect the public interest. Chaskalson describes it as an interface between the bureaucratic state and its subjects. [4] The requirement of “direct and external legal effect”[74] stems from German federal administrative law and certainly resembles another vote for austerity. Under German law, “direct” effect appears to be achieved only if a decision is final, so that preliminary and investigative decisions cannot be regarded as administrative acts. “External effect” means that the act must take place outside the administrative authority or the department itself, so that the interaction between a head of department and an official of that department would not normally be an administrative act. A “legal effect” arises in German law when “subjective rights” are affected. [75] However, German law appears to follow the doctrine of determination, so rights are affected more frequently than in Germany.
In the South African context, it is far from clear whether the inclusion of the term “legal effect” blurs the boundaries of “rights”. “Directness” seems to suggest a stricter test than the common law doctrine of maturity. As for “external”, it is a huge mystery. South African law has never had a problem with requests for review of “internal” matters, which is why it has probably never bothered to have a term for it. The truth is that the “direct and external legal effect” was brought to the attention of the parliamentary portfolio committee very late and was included on a whim in the definition of administrative action. This is a shame, because it only adds to the opacity and complexity of an already complicated definition. It also has the effect of further restricting the application of the law. Unfortunately, Mathews has not experienced much of South Africa`s miraculous transition from repressive minority rule to constitutional democracy, a process that officially began ten years ago under the auspices of the Constitution of the Republic of South Africa Act 200 of 1993 (“Interim Constitution”)[6] and continues today under the “final” or constitution of 1996. [7] Had he done so, he could very well have concluded that South Africans in general, and administrative lawyers in particular, no longer needed the rule of law. Finally, the 1996 Constitution, like its predecessor, is a lengthy document full of human rights, including the rights to administrative justice set out in article 33. In addition, Article 33(3) requires national legislation to give effect to those rights and provide for judicial review of administrative measures. and that detailed national legislation was adopted as the Law on the Promotion of Administrative Justice No.
3 of 2000 (`the Law on Administrative Justice`). With all this explicit justification of judicial intervention[8] and with all this specificity, who could need the universality (or even uncertainty) of the rule of law? I have already described some of the most important cases in which the Constitutional Court defined the concept of administrative action before the entry into force (and largely before the promulgation) of the Law on Administrative Courts.
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