The influence of the Oudekraal and Kirland decisions on the legal status of an invalid administrative action
| dc.contributor.advisor | Du Plessis, Adri | |
| dc.contributor.author | Van Dyk, Obakeng Terence | |
| dc.date.accessioned | 2021-05-10T08:53:46Z | |
| dc.date.available | 2021-05-10T08:53:46Z | |
| dc.date.issued | 2020-11 | |
| dc.description.abstract | An administrative action that does not comply with the Constitution of the Republic of South Africa (the Constitution) and/or the Promotion of Administrative Justice Act (PAJA) is invalid. This position is in line with the rule of law. However, since administrative acts are performed by public functionaries who appear to have the necessary authority, it is usually in the domain of the courts to decide whether those acts are indeed invalid. The current legal position dealing with the legal nature and status of invalid administrative action is centred around two court decisions, namely Oudekraal Estates (Pty) Ltd v City of Cape (Oudekraal) and MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd (Kirland). The Courts in both decisions held that if an invalid administrative act is not set aside by a competent court, it will continue to be binding and give rise to legal consequences. The main objective of this study is to analyse the legal nature of invalid administrative action and how the Oudekraal and Kirland decisions influenced the status of invalid administrative decisions. This study will also investigate the anomaly that invalid administrative decisions can lead to legally binding consequences. In the Kirland decision, two different approaches to the treatment of invalid administrative action were proposed by the majority and minority judgments. Both these approaches were anchored in two different principles of the rule of law, one approach by Cameron J favouring the principle of legal certainty, and the other approach advanced by Jafta J favouring the principle legality. In the discussion of the Kirland decision, the merits and demerits of the two approaches were evaluated. The discussions of these two approaches by the majority and minority judgments reveal that more work still needs to be done to ensure that a balance is struck between the principles of legal certainty and legality. This study explored ways on how best to manage the collision between legality and legal certainty. In the analysis of the Oudekraal and Kirland decisions, it also became evident that the status and nature of invalid administrative action cannot be divorced from an enquiry on whether such decisions can be varied or revoked. For that reason, this study investigated whether the Oudekraal and Kirland decisions altered the common law position that enabled a public authority to vary or revoke its own invalid decisions, in certain instances, without approaching the courts. Furthermore, this study used the Life Esidimeni-matter to better understand some of the practical implications and influence of the Oudekraal and Kirland decisions on the treatment of invalid administrative action. Finally, the study explored the possible introduction of administrative tribunals into our law to enable more people to have access to an efficient forum that could ensure that injustice is limited. | en_ZA |
| dc.description.sponsorship | Open Society Foundation | en_ZA |
| dc.identifier.uri | http://hdl.handle.net/11660/11043 | |
| dc.language.iso | en | en_ZA |
| dc.publisher | University of the Free State | en_ZA |
| dc.rights.holder | University of the Free State | en_ZA |
| dc.subject | Dissertation (LL.M. (Constitutional Law and Philosophy of Law))--University of the Free State, 2020 | en_ZA |
| dc.subject | Invalid administrative action | en_ZA |
| dc.subject | Legal status of invalid administrative action | en_ZA |
| dc.subject | Presumption of validity | en_ZA |
| dc.subject | Rule of law | en_ZA |
| dc.subject | Legality | en_ZA |
| dc.subject | Legal certainty | en_ZA |
| dc.subject | Administrative tribunal | en_ZA |
| dc.subject | Collateral challenge | en_ZA |
| dc.subject | Second actor theory | en_ZA |
| dc.subject | Revocation and variation of administrative acts | en_ZA |
| dc.title | The influence of the Oudekraal and Kirland decisions on the legal status of an invalid administrative action | en_ZA |
| dc.type | Dissertation | en_ZA |