Research Articles (Public Law)

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Browsing Research Articles (Public Law) by Subject "Administrative law -- South Africa"

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    An administrative law perspective on “bad building” evictions in the Johannesburg inner city
    (ESR Review (Economic and Social Rights in South Africa), 2007-05) Quinot, G.
    The recent judgment of the Supreme Court of Appeal in Rand Properties provides an opportunity to assess the use of administrative law arguments in advancing the realisation of socio-economic rights. The judgment itself is disappointing in this respect by failing to grapple effectively with the potentially constructive interaction between section 33 of the Constitution and the various socio-economic rights provisions.
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    At the intersection between expropriation law and administrative law : two critical views on the Constitutional Court's Arun judgment
    (Faculty of Law, North-West University, 2016-08) Marais, E. J.; Maree, P. J. H.; Public Law
    Abstract of article; "In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of such a plan. This includes land that is in excess of the normal need of the development. The appellant must hence be compensated for the "expropriation" of such excess land if the provision is to comply with section 25(2) of the Constitution. This ruling is problematic for both expropriation law and administrative law. In terms of section 25(2) four objections may be raised against the Arun decision. Firstly, it disregards the function of the public interest requirement for expropriation, as understood in view of the law-of-general-application requirement (which, in turn, is informed by the legality principle). The state cannot expropriate property for purposes that are ultra vires (or ulterior to) the authorising legislation. Yet the Arun court seems to allow just this by permitting the local authority to acquire land unrelated to the normal need of the development against payment of compensation instead of setting the attempted expropriation aside. The judgment, secondly, ignores the role of compensation under section 25(2). Merely paying compensation to an affected party cannot turn an invalid expropriation into a valid one, since compensation is merely the result of a valid expropriation and not a justification for it. Thirdly, it makes the distinction between deprivation and expropriation pivot on the effect of the property limitation, which is unable to properly distinguish between these two forms of limitation in all instances. Finally, Moseneke DCJ's ruling seems to afford an election to litigants who are affected by materially defective expropriations to choose whether to accept the expropriation and claim compensation or to have it reviewed and set aside under PAJA. This election, if it indeed exists, subverts the principles of expropriation law and may have negative repercussions for both expropriation law and administrative law, especially in view of the single-system-of-law principle. From an administrative law perspective the authors identify four considerations that could assist courts in determining whether administrative law should be considered, if not applied, in a given case. The first is the internal coherency of the law in view of the subsidiarity principles. The subsidiarity principles provide guidelines for courts to decide cases where two fundamental rights might be applicable. A principled approach is necessary in this context to ensure that the law operates as a single system and displays the positive characteristics of such a system. The fact that Moseneke DCJ preferred to award compensation to Arun instead of reviewing the expropriation under PAJA runs contrary to these principles and seems to result in an outcome which endorses – instead of prevents – administrative injustice. Secondly, the Constitutional Court's refusal to follow PAJA by reason of its being onerous on the appellant contradicts earlier case law where the Court held that time-periods under the Act cannot be circumvented by reason of their being burdensome. The rationale behind these time-periods is integral to securing administrative justice, since time-periods are not merely formalistic technicalities. Thirdly, the authors argue that a green-light approach to internal remedies could have resulted in the broadening of the interpretative context and recognition of the legitimate role of the public administration in the state. Finally, deference as understood by Dyzenhaus also exemplifies why administrative law should not be ignored in cases which concern the exercise of public power. According to Dyzenhaus, deference requires courts to actively participate in the justification of administrative decisions by asking whether the administration's "reasoning did in fact and also could in principle justify the conclusion reached".
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    Narrowing the band : reasonableness review in administrative justice and socio-economic rights jurisprudence in South Africa
    (Juta Law, 2011) Quinot, G.; Liebenberg, Sandra
    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.
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    Die reg se oenskynlike onvermoe om korrupsie in staatskontraktering in Suid-Afrika hok te slaan
    (LitNet, 2013) Quinot, G.
    Ten spyte van ’n aansienlike aantal afdwingbare regsreëls wat staatsverkryging in Suid-Afrika reguleer, word hierdie aspek van staatsadministrasie gekenmerk deur hoë vlakke van ongerymdhede. Veral korrupsie blyk hoogty te vier as dit kom by staatskontrakte. Die vraag ontstaan dus hoekom die toepaslike reg oënskynlik nie daarin slaag om korrupsie in staatskontraktering effektief teen te werk nie. Die doel met hierdie artikel is om te fokus op die regsreëls wat spesifiek gemik is daarop om korrupsie in staatskontraktering te beveg en deur ’n ontleding van daardie reëls probleme te identifiseer wat sodanige oogmerk ondermyn. Vyf hoofprobleme in die regulering van staatsverkryging word geïdentifiseer wat bepaald die stryd teen korrupsie ondermyn, te wete die gefragmenteerde aard van die regulatoriese raamwerk, die steun op verkrygingsbeleid as die voertuig vir individuele verkrygingsreëls, die desentralisering van beide die verkrygingsfunksie en die skep van verkrygingsreëls, die inkonsekwente toepassing van gemeenregtelike reëls deur howe in verkrygingsdispute en die onsamehangende stelsel van remedies van toepassing op verkrygingstransaksies. Drie stappe word gevolglik voorgestel wat hierdie probleme kan help aanspreek. Dit is die sentralisering en konsolidering van die regulatoriese raamwerk, die skep van ’n sterk, sentrale oorsigstruktuur, en ’n herbesinning van die howe se rol in die regulering van staatsverkryging.
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    Substantive reasoning in administrative-law adjudication
    (Constitutional Court Review, 2010) Quinot, G.
    One of the main characteristics of constitutional transformation in South Africa is what Etienne Mureinik calls the shift towards a culture of justification in which 'every exercise of power is expected to be justified'.1 He argues that within such a culture, constitutional rights 'are standards of justification - standards against which to measure the justification of the decisions challenged under them'.
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    Worse than losing a government tender : winning it
    (Juta Law, 2008) Quinot, G.
    In Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) the Constitutional Court held that an organ of state was not liable in delict for a successful tenderer's out-of-pocket losses following the setting aside of the tender because of a bona fide error on the part of that organ of state in the tender process. The Court ruled that the organ of state's negligent but bona fide conduct in the public tender process was not wrongful since it owed no legal duty to tenderers, whether successful or unsuccessful, to avoid such losses and that there were no public policy considerations that justified the recognition of such a duty. From a public procurement perspective, this judgment is unfortunate. Moseneke DCJ's majority judgment is based on a number of highly contestable assumptions and holds implications for public procurement that may largely undermine the very public policy considerations upon which it is based. The dissenting minority judgment of Langa CJ and O'Regan J is to be preferred, because it is not only much more sensitive to the general realities of public procurement, but specifically the realities of South African public procurement. However, the problem raised by the Steenkamp matter, judged from a public procurement perspective, is not one of delictual liability but rather the hitherto fairly unsophisticated approach to remedies following the judicial review of public tender decisions in South Africa. In order to overcome the problems illustrated by the Steenkamp case, we should focus our attention on the development of appropriate judicial review remedies within the public procurement context. The recent judgment of the Supreme Court of Appeal in Millennium Waste Management v Chairperson Tender Board 2007 JOL 21170 (SCA) provides a solid point of departure for such a development.