Masters Degrees (Centre for Human Rights Law)

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Browsing Masters Degrees (Centre for Human Rights Law) by Author "Brand, Danie"

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    The extent and scope of procedural fairness under legality review
    (University of the Free State, 2023) Sejaphala, Lehumo; Brand, Danie
    The prevailing view in administrative law scholarship concerning the relationship between the ๐˜—๐˜ณ๐˜ฐ๐˜ฎ๐˜ฐ๐˜ต๐˜ช๐˜ฐ๐˜ฏ ๐˜ฐ๐˜ง ๐˜ˆ๐˜ฅ๐˜ฎ๐˜ช๐˜ฏ๐˜ช๐˜ด๐˜ต๐˜ณ๐˜ข๐˜ต๐˜ช๐˜ท๐˜ฆ ๐˜‘๐˜ถ๐˜ด๐˜ต๐˜ช๐˜ค๐˜ฆ ๐˜ˆ๐˜ค๐˜ต (hereafter โ€˜PAJAโ€™)ยน and the principle of legality over the last decade has been that these two mechanisms for review of public conduct should not be used interchangeably and that instead, they should be applied separately, within each of their scopes of application. In other words, the prevailing view maintains that PAJA and its grounds of review must be exhausted first before resort can be had to the principle of legality โ€“ which serves as a safety net to catch all exercises of public power which fall outside the purview of PAJA.ยฒ Indeed, this is not just the prevailing view but a constitutional injunction occasioned by amongst others, the principle of subsidiarity which serves to give impetus to the doctrine of the separation of powers.ยณ This notwithstanding, a thorough reading of administrative law cases since the enactment of PAJA shows that the courts have not maintained this constitutionally ordained PAJA and legality review distinction consistently. There are indeed cases in which our courts have imported procedural fairness (a separate ground of review under PAJA) into the legality review. However, it is still not clear as to when and under what circumstances a reviewing court will subject public conduct (not administrative in nature, and therefore not subject to PAJA), to procedural fairness as seemingly subsumed into the principle of legality. Against this backdrop, I ask in this dissertation what the unintended consequences of this prevailing approach have been. Second to that, I ask whether the prevailing view has not resulted in the development/broadening of legality as a ground for the review of โ€˜non-administrativeโ€™ public conduct. And most significantly, whether our courts have managed to develop a cogent substantive approach to the question of whether or not in a given case of legality review, procedural fairness should apply.