An evaluation of the transformation of public service delivery through the development of administrative justice in South Africa
Thesis (LLM (Public Law))--University of Stellenbosch, 2007.
In order to test whether South African public service fulfills democratic aims and objectives, this study establishes the limits to and extent of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) in promoting the right to administrative justice as a human right (the RAJAH) and thereby transforming public service delivery. To achieve above aim the background to the entrenched right to administrative justice is analysed through a study of principles underlying administrative justice. Both South African common law and Constitutional systems are analysed against the principles underlying administrative justice. Batho Pele principles contained in the White Paper on the Transformation of the Public Service (WPTPS) are also analysed to find out how the South African Public Administration interprets its constitutional duties and to establish the relevance of these principles to administrative justice principles ensconced in the PAJA. The PAJA is then analysed in order to measure the extent to which it affirms the transformation principles ensconced in the Constitution and coinciding with Batho Pele principles. As the public service is a reflection of democracy in action, the public expects it to be professional, representative and proficient. If it does not fulfil these expectations, this may be interpreted as a fundamental failure of democracy. South African democracy in particular is development oriented because it is based on the Constitution that entrenches among others the right to administrative justice. The right to administrative justice as a development tool urges the public sector to recognise and apply constitutionally recognised procedures and processes in every delivery so that the social status of citizens may be enhanced. Such steps, if effectively followed, signify that the public sector has transformed from bad governance practices of the pre constitutional era where there was no requirement for the observance of individual rights in public service delivery. Failures to the adoption of good governance principles by the public sector show the opposite of the expected standards and signify that the public sector is not yet transformed. In the light of the problems caused by the lack of protection of human rights from abuse by the executive under the common law system of parliamentary supremacy, the constitutional era was expected to have changed the position of South African administrative law drastically through its adoption of the principles underlying administrative justice. To develop insight into the extent of the transformation towards administrative justice that is expected to have occurred in South Africa since the advent of constitutionalism the implementation of the PAJA is evaluated through an examination of a selection of cases that deals with public administration decisions in the area of social assistance as a context in which members of the public are most dependent on effective state administration. As the scope of the study limits the number of cases that can be examined, only the most informative cases on social assistance that relates to the KwaZulu-Natal and the Eastern Cape provinces are analysed. The research finds that public service is not yet transformed and identifies the causal factors. It recommends steps to be followed so that the expected culture from the public sector is attained.