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CHAPTER 4

THE SOUTH AFRICAN BACKGROUND

4.1 Some other countries, it has been observed above, have preceded South Africa in adopting an Administrative Justice Act. South Africa is unique in being required by its Constitution to do so, and to achieve this within a stipulated time frame. What an Administrative Justice Act is required to achieve in South Africa is, however, not to be ascertained purely by reference to the wording of the constitutional imperative. Respondents, in considering submissions relating to the draft Bill, have naturally done so in a specifically South African setting.

4.2 What this encompasses has been a matter of exhaustive analysis in the 1992 report and the conferences and papers to which reference has been made. A useful overview is again to be found in the article by Prof Corder.

4.3 While the South African common law relating to administrative justice has developed significantly in recent years, an abiding restriction lay in its evolution under a system of Parliamentary supremacy, and domination in turn of Parliament by the executive. The Constitution reflects a determination that administrative law in South Africa should not henceforth survive interstitially, in legislative crevices, to the extent that judges are both able and minded to secure that result. The right to administrative justice, as the recent Constitutional Court judgment in Fedsure Life Ass Ltd v Greater Johannesburg TMC 1998 (12) BCLR 1458 (CC) underscores, is now rooted in the Constitution itself. The latter builds in this regard on the interim Constitution, which “has radically changed the setting within which administrative law operates in South Africa” (para [32]).

4.4 How that right is best now to be given effect, within the requirements and realities of South African society, is the challenge raised by this project.