Context matters and today’s system of South African administrative law is quite evidently a product of the socio-political background out of which it evolved. It is a curious hybrid of the old and the new: in part, due to its common-law roots, it bears the stamp of the country’s unfortunate apartheid heritage, yet at the same time it is a field of law that epitomises the negotiated constitutional ‘revolution’ that indelibly changed the South African legal landscape. Chaskalson P explained the implications of this transformation in the benchmark decision of Pharmaceutical Manufacturers:
[A]dministrative law occupies … a special place in our jurisprudence. … It is built on constitutional principles. … Prior to the coming into force of the interim Constitution, the common law was ‘the main crucible’ for the development of these principles of constitutional law. The interim Constitution … was a legal watershed. It shifted constitutionalism, and with it all aspects of public law, from the realm of the common law to the prescripts of a written constitution which is the supreme law.
Prior to this shift, South African administrative law was entirely common law based and bore all the hallmarks of its parent English system. In particular, thanks in large part to the influence of the English constitutional lawyer, Albert Venn Dicey, it rested upon the twin pillars of parliamentary sovereignty and the rule of law with its obverse facet, the ultra vires doctrine (which operated as the organizing rationale of administrative law). Along with the Westminster inheritance came a deep distrust of government and discretionary power, and a concomitantly heavy reliance on judicial review of administrative action as the principal means of checking such power.
Unfortunately, transplanted into the South African context, these two key organizing principles of English constitutional law failed to complement one another. Under apartheid, parliamentary sovereignty came to be associated with rule by law, rather than a substantive notion of the rule of law pursuant to which law is insulated from politics, and judges serve as impartial and independent guardians of human rights. The separation of powers did not exist as a practical reality and parliamentary sovereignty came to be coupled with judicial timidity as the hamstrung courts struggled to find ways of controlling public power, which was largely abused in pursuit of racist ends.
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Citation: ‘Judicial regulation of administrative action’ in the South African Monograph on Constitutional Law, Murray & Kirkby (eds) (2014) Suppl. 108 International Encyclopaedia of Laws (IEL)