Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by Subject "Administrative law -- South Africa"

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    Investigating an alternative administrative-law system in South Africa
    (Stellenbosch : Stellenbosch University, 2013-12) Maree, Petrus Jacobus Hermanus; Quinot, Geo; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: This dissertation considers the question whether there are viable alternatives to the conceptual framework within which the South African administrative-law system operates, given that the administration now functions under new constitutional demands and new approaches to administrative engagement. The intention is not to proffer concrete recommendations for such a system, but only to propose an approach by means of which questions concerning the legal regulation of the administration and administrative function may be addressed. The dissertation introduces the concept of the contextualised administrative-law system. This concept emphasises the legal relationship between the public administration and the judiciary, but is not limited to this relationship. The administrative-law system does not operate in a vacuum, though, and is informed by the conceptual framework within which the system operates. The system is also a function of its geo-political and socio-economic context. The historical development of the doctrine of separation of powers, as one aspect of the conceptual framework, is traced. Thereby the normative, dynamic and flexible nature of the doctrine is established. On this basis, the potential and value of a fourth branch, the administration, within the separation-of-powers doctrine is assessed. By implication, the administrative function would constitute a fourth, distinct function in addition to the legislative, executive and judicial functions. The concept of the administrative-law system is consequently applied to the South African context. Firstly, the development of the South African system is outlined and, secondly, the administrative-law relationship is analysed. This discussion establishes that the system is characterised by an embryonic administrative law, the equating of administrative law and judicial review, an emphasis on the rule-of-law or “red-light” approach to administrative regulation, a rhetoric of deference, and the supremacy of the Constitution of the Republic of South Africa, 1996. Therefore, the system must be informed by the Constitution and, arguably, by Karl Klare’s project of transformative constitutionalism and Etienne Mureinik’s “culture of justification”. The content of the separation of powers is also investigated by means of an historical analysis of the considerations that rationalise the existence of an independent administrative jurisdiction in France. This entails an exposition of the Conseil d’État’s structure, organisation and dual function. Principles that describe the French system, other than the pure separation of powers, are discussed, namely, the duality of jurisdiction, the separation of administrative and judicial authorities, the separation of the administrative jurisdiction and active administration, the maxim “to judge the administration is still administering”, and the hybrid nature of administrative litigation. The legal regulation of public contracts can be regarded as a doctrinal perspective of the administrative-law system. The public contract is discussed as one form of administration, due to its conceptual ambiguity as a legal instrument on the boundary between public and private law and due to the administration’s increasing contractual activity. To an extent the contrat administratif of French law indicates that particular legal rules are an extension of the broader principles, considerations and institutional structures discussed in the preceding sections. This dissertation introduces an approach that emphasises the relationship between the administration and the judiciary as well as the conceptual framework within which the administrative-law system operates. Through the application of this approach to the South African context and to public contracting the key concepts and debates underlying an appropriate administrative-law system in South Africa are identified and investigated. This constitutes a platform for the development of a particular administrative-law system and an exposition of viable alternatives to the conceptual framework within which the system operates.
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    Reconsidering the relationship between property and regulation: a systemic constitutional approach
    (Stellenbosch : Stellenbosch University, 2015-12) van der Sijde, Elsabe; Van der Walt, A. J.; Quinot, Geo; Stellenbosch University. Faculty of Law. Department of Public Law
    ENGLISH ABSTRACT :This dissertation considers whether the approach to the regulation of property in the constitutional context is compatible with either one of the major theoretical approaches in private law, namely that ownership is fundamentally absolute or alternatively that regulatory limitations are inherent to ownership. It finds that the inherent/external debate is of limited value in South Africa’s constitutional context because there has been a shift toward a stronger emphasis on reconciling individual entitlements with other (constitutional) interests. In response to the inadequacy of the existing (private law) approaches, this dissertation proposes a systemic constitutional approach. In terms of this approach, property is regarded as part of an inherently regulated constitutional legal system. Disputes regarding the protection of entitlements must be addressed with reference to the objectives of the system as a whole and regulation is understood as a mechanism through which constitutional values are promoted. Thus, regulation of the use of property does not erode the institution of private property, because the system provides for constitutional or statutory control over the regulatory process. In this context there is an overlap between sections 25 and 33 of the Constitution, since the secondary regulatory function can be fulfilled by the principles of either constitutional property law or administrative law, when the use of property is regulated through administrative action. The complicating factor is that not all regulatory measures are also administrative actions. The use of property can also be regulated directly through common law or legislation, or through acts of the executive or judiciary. In terms of the systemic constitutional approach, direct application of section 25 should be reserved for cases of direct statutory or common law deprivation. Where more than one regulatory framework is potentially applicable, the subsidiarity principles should identify the appropriate framework, to avoid the creation of parallel systems of law. Ultimately, reconsideration of the relationship between property and regulation is part of an ongoing constitutional conversation which can only take place when we explicitly engage with questions regarding the role, function and status of property and regulation in the constitutional legal system.