South Africa has an extensive heterogeneous population where drastic and far-reaching differences
regarding community values and acceptability norms exist. These are emphasised by the serious
imbalances regarding socio-economic circumstances.
The late establishment of a democracy in South Africa was preceded by a traumatic period of intense
suffering among a large section of the population. One great advantage of South Africa becoming a
democracy at such a late stage is the fact that the country could learn from the political and
constitutional successes and failures of other countries. This aided the establishment of a new order
to ensure justice and stability for all South Africans.
The final Constitution was developed after five years of intense negotiations. To address imbalances
of the past, the Legislator deemed it necessary to write the concept administrative justice into Section
33 of the Constitution. This is currently a fundamental human right which is a right every citizen is
entitled to.
The concept administrative justice contained in Section 33 of the Constitution and its concretisation in
the Promotion of Administrative Justice Act are certainly not perfect in all respects, but, in spite of this,
is a significant effort on the part of the Legislator to create a basis for peace, justice, political tolerance
and prosperity in South Africa. The foundation was built according to a concept of administrative
justice which can develop further.
In this thesis the constitutional embodiment of administrative justice is analysed through various
approaches. A critical analysis is made with specific reference to case law as well as legislation. The
emphasis is placed on the review aspects as mentioned in the Promotion of Administrative Justice
Act, and developmental aspects of the concept will be investigated further.
Attention is paid to the history preceding the current concept of justice. This will reveal both the
essence and the problems surrounding this concept that has been around for years. A closer
investigation of the practical application and influence of administrative justice on the private law fields,
more specifically, the law of delict and contractual law will shed further light on the concept of justice.
The concept administrative justice does not only belong to the state-subject relationship, i.e. vertical
application of understanding, but also has an impact on the relationships of the private individual or
institutions â the so-called horizontal application.
The embodiment of the concept administrative justice in legislation caused a drastic change in the
approach of the courts to the application of justice. The application of the courts of legislation, such as
the "ouster clauses", and the disadvantage it has for the individual now belongs to the past. The focus of this thesis falls on key elements pertaining to the concept of justice, namely, lawfulness,
reasonableness and procedural equity.
However, there is much cause for concern of state institutions and different bodies being excluded in
the definition of administrative action in the Promotion of Administrative Justice Act. It has the
potential to become a powerful barrier in the future development of administrative justice. It is clear
that all administrative action should firstly be tested to the definition before concentrating on its
different review grounds. The definition of an administrative action is compiled from three different
definitions and is, as such, interpreted with difficulty by the general civil servant in his/her daily action
in the workplace.
A further development of the above-mentioned act and the provision of a guideline, such as the Code
of Good Conduct and the implementation of courts specialising in administrative law, will be welcomed
to help further establish and develop the concept administrative justice.
In essence, this thesis attempts to critically analyse the concept administrative justice in Section 33 of
the Constitution with specific reference in its concretisation in the Promotion of Administrative Justice
Act.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-04082009-142200 |
| Date | 08 April 2009 |
| Creators | Maré, Tjaart Jurgens |
| Contributors | Prof AWG Raath |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-04082009-142200/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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