Doctoral Degrees (Office of the Dean: Law)
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Item Open Access 'n Kritiese analise van die begrip "Administratiewe Geregtigheid" in die grondwet, met besondere verwysing na die konkretisering daarvan in die Wet op die Bevordering van Administratiewe Geregtigheid, 3 van 2000(University of the Free State, 2008-05) Maré, Tjaart Jurgens; Raath, A. W. G.English: South Africa has an extensive heterogeneous population where drastic and far-reaching differences regarding community values and acceptability norms exist. These are emphasised by the serious imbalances regarding socio-economic circumstances. The late establishment of a democracy in South Africa was preceded by a traumatic period of intense suffering among a large section of the population. One great advantage of South Africa becoming a democracy at such a late stage is the fact that the country could learn from the political and constitutional successes and failures of other countries. This aided the establishment of a new order to ensure justice and stability for all South Africans. The final Constitution was developed after five years of intense negotiations. To address imbalances of the past, the Legislator deemed it necessary to write the concept administrative justice into Section 33 of the Constitution. This is currently a fundamental human right which is a right every citizen is entitled to. The concept administrative justice contained in Section 33 of the Constitution and its concretisation in the Promotion of Administrative Justice Act are certainly not perfect in all respects, but, in spite of this, is a significant effort on the part of the Legislator to create a basis for peace, justice, political tolerance and prosperity in South Africa. The foundation was built according to a concept of administrative justice which can develop further. In this thesis the constitutional embodiment of administrative justice is analysed through various approaches. A critical analysis is made with specific reference to case law as well as legislation. The emphasis is placed on the review aspects as mentioned in the Promotion of Administrative Justice Act, and developmental aspects of the concept will be investigated further. Attention is paid to the history preceding the current concept of justice. This will reveal both the essence and the problems surrounding this concept that has been around for years. A closer investigation of the practical application and influence of administrative justice on the private law fields, more specifically, the law of delict and contractual law will shed further light on the concept of justice. The concept administrative justice does not only belong to the state-subject relationship, i.e. vertical application of understanding, but also has an impact on the relationships of the private individual or institutions – the so-called horizontal application. The embodiment of the concept administrative justice in legislation caused a drastic change in the approach of the courts to the application of justice. The application of the courts of legislation, such as the "ouster clauses", and the disadvantage it has for the individual now belongs to the past. The focus of this thesis falls on key elements pertaining to the concept of justice, namely, lawfulness, reasonableness and procedural equity. However, there is much cause for concern of state institutions and different bodies being excluded in the definition of administrative action in the Promotion of Administrative Justice Act. It has the potential to become a powerful barrier in the future development of administrative justice. It is clear that all administrative action should firstly be tested to the definition before concentrating on its different review grounds. The definition of an administrative action is compiled from three different definitions and is, as such, interpreted with difficulty by the general civil servant in his/her daily action in the workplace. A further development of the above-mentioned act and the provision of a guideline, such as the Code of Good Conduct and the implementation of courts specialising in administrative law, will be welcomed to help further establish and develop the concept administrative justice. In essence, this thesis attempts to critically analyse the concept administrative justice in Section 33 of the Constitution with specific reference in its concretisation in the Promotion of Administrative Justice Act.