Narrowing the band : reasonableness review in administrative justice and socio-economic rights jurisprudence in South Africa
CITATION: Quinot, G. & Liebenberg, S. 2011. Narrowing the band : reasonableness review in administrative justice and socio-economic rights jurisprudence in South Africa. Stellenbosch Law Review, 22(3):639-663.
The original publication is available at http://reference.sabinet.co.za/sa_epublication/ju_slr
This contribution explores the standard of reasonableness review applied in both administrative justice and socio-economic rights jurisprudence in South Africa. The first part traces the development of reasonableness as a standard of review in administrative law, and the significant shift towards a more substantive conception of review. The implications of this shift for cases involving review of administrative action impacting on socio-economic rights (what we term, "overlap cases") are examined. The second part of the contribution examines reasonableness review in socio-economic rights cases where the cause of action is not formulated in terms of administrative law (what we term, "non-overlap cases"). This typically concerns cases where it is alleged that the legislature or executive branches of government have failed to fulfil the obligations imposed by socio-economic rights. In this section we highlight the failure of existing constitutional jurisprudence on socio-economic rights to develop a substantive account of the normative purposes and values promoted by these rights. We argue that it remains possible for such an account to be developed within the existing framework of reasonableness review applied to positive socio-economic rights claims. The paper concludes with an argument in favour of the development of a single model of reasonableness review across socio-economic rights and administrative justice cases. While the reasonableness standards under the different sections overlap, they should not result in duplication, but fulfil different functions in the review. Taken together, reasonableness offers a model of review of socio-economic rights that promotes a number of key constitutional objectives. These include transparency, the justification of all forms of public action, proper consideration of the factual and normative context, and the development of the substantive dimensions of the socio-economic rights in the Constitution.