Writing over ten years ago Cameron Stewart compared the rule of law to Tinkerbell – the fairy whose very existence depended upon others’ belief in her and who, in the story of Peter Pan, was saved by the act of clapping as evidence of this belief. (Cameron Stewart ‘The rule of law and the Tinkerbelle… Read More »
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… Read More »
Nearly five decades ago, and in the wake of debate in legal circles, the Shifren principle found its way into our law pursuant to the Appellate Division decision in SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren. In terms of this principle, ‘contracting parties may validly agree in writing to an enumeration of their rights, duties and… Read More »
On 7 December 2011 the new Preferential Procurement Regulations, 2011 (‘the Regulations’) made under the Preferential Procurement Policy Framework Act, 2000 (‘the PPPFA’) came into effect. The Regulations have a broader scope of application than the 2001 Regulations: municipal entities, as well as schedule 2 and 3 public entities listed under the Public Finance Management… Read More »
The proverbial saying goes: two’s company; three’s a crowd. This about encapsulates the awkward relationship between the fundamental right to administrative justice (in section 33 of the Constitution), the Promotion of Administrative Justice Act, 2000, enacted to give legislative effect to the right, and the common-law principles of judicial review of administrative action. Following the… Read More »
This article presents an analysis of the recently published Draft Traditional Affairs Bill, 2013 and, in particular, clause 25 thereof. Clause 25 (‘[a]llocation of roles…’) contemplates something akin to the delegation of legislative power – in an unguided and unfettered manner – to ‘departments’ in the national and provincial spheres of government and the concomitant… Read More »
Section 24G of NEMA was introduced in 2004 to allow for the ‘[r]ectification of unlawful commencement or continuation of [a] listed activity’ conducted in the absence of the requisite environmental authorisation; typically pursuant to an environmental impact assessment (EIA). The section essentially permits the ex post facto legalising of an otherwise unlawful act. This controversial addition to NEMA has… Read More »
This article presents an analysis of three recent judgments of our apex courts which collectively illustrate a maximising of the ‘minimum threshold requirement’ of rationality through the seemingly inexhaustible principle of legality. The question sought to be addressed is whether, in extending this baseline requirement to cover procedural fairness, reason-giving and something akin to proportionality,… Read More »