Apples, Oranges and Comparative Administrative Law

• Jurisdiction: South Africa
• Pages: 423-449
• Citation: 2006 Acta Juridica 423
• Published date: 30 August 2019
• Date: 30 August 2019
• Author: Cheryl Saunders

Apples, Oranges and Comparative

Administrative Law

CHERYL SAUNDERS*

University of Melbourne, Australia

I INTRODUCTION

On 21 March 2005, Hugh Corder organised the f‌ifth in a series of

remarkable administrative law conferences that have been held over a

period of 12 years. Each of the f‌irst four conferences was deliberately

planned to inf‌luence the development of administrative law in South

Africa and succeeded admirably in doing so. The f‌irst Breakwater

conference, held in February 1993, following the fall of apartheid but

before the f‌inalisation of the interim Constitution, proposed a framework

of principle for a new administrative law for a new South Africa, to be

given a base in the coming Constitution.

1

A second Breakwater

conference, in 1996, took place just before the f‌inal Constitution was

settled, with its somewhat different, but nevertheless important, protec-

tion for administrative justice.

2

In 1999, participants in a third confer-

ence, in Leeds Castle in the United Kingdom, joined the project team of

the South African Law Commission to consider the form that legislation

to implement the constitutional requirements should take.

3

In February

2001, almost exactly eight years after the f‌irst Breakwater conference, a

fourth meeting, on Realising Administrative Justice, took stock of the

progress that had been made and of that which was still to be done.

4

All

four of these conferences involved administrative lawyers from a range of

other, mainly Commonwealth, countries, to assist South Africa to draw

on existing international experience to fashion its own, distinctive,

administrative law regime.

The f‌ifth conference also involved administrative lawyers from outside

South Africa, this time from an even wider range of Commonwealth

countries. But the purpose on this occasion was different. As the title

* Personal chair in law, University of Melbourne; Honorary Professor in Law, University

of Cape Town.

1

The proceedings were published in 1993 Acta Juridica; see also Hugh Corder and Fiona

McLennan (eds) Controlling Public Power (1995).

2

Hugh Corder and Tiyanjana Maluwa (eds) Administrative Justice in South Africa (1997).

3

This meeting was preceded by a preparatory workshop in London: see Hugh Corder and

Linda van de Vijver(eds) Realising Administrative Justice (2002) 6. The Law Commission’s Report

on Administrative Justice (Project 115, August 1999) was released shortly after the meeting in

Leeds Castle.

4

The proceedings were published in Hugh Corder and Linda van de Vijver (eds) Realising

Administrative Justice.

423

2006 Acta Juridica 423

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Comparative Administrative Justice implied, this conference was designed as

a forum in which public lawyers from throughout the Commonwealth

could examine trends in administrative law, compare problems and

solutions, learn from each other and develop a collaborative agenda for

the future. To that end, it involved participants from, or able to speak

authoritatively about administrative law in a wide range of Common-

wealth jurisdictions including Australia, Canada, Hong Kong, India,

Malawi, Malaysia, New Zealand, Pakistan, Sri Lanka, the United

Kingdom, and South Africa itself.

The revised essays from what was modestly described as a workshop

are drawn together in this volume. It falls to me to write the concluding

chapter, in which I seek to do three things. The f‌irst is to ref‌lect on the

successes, as well as the disappointments, of the new administrative law in

South Africa over the past ten years, thus continuing the story that began

at Breakwater in 1993. The second, consistently with the broader aim of

the volume, is to examine and explore the signif‌icance of four principal

themes that emerge from the chapters and the workshop presentations on

which they are based: the constitutionalisation and internationalisation of

administrative law in common law countries; the codif‌ication of

administrative law and its consequences; the relationship between courts

and other branches of government in judicial review; and the implica-

tions and signif‌icance of a range of other institutions and mechanisms that

complement or supplement judicial review of administrative action but

that typically have a lower prof‌ile.

For this second purpose, it is necessary to have regard to the

methodology of comparative law, to assist with the challenge of

identifying genuine similarities and distinguishing genuine differences:

the old problem of avoiding comparison of oranges and apples or, at least,

f‌inding a level at which they might usefully be compared. The third aim

of the chapter thus emerges: to examine the contribution that a project

comparing the administrative law systems in common-law countries can

make to the emerging discipline of comparative public law. To this end, I

begin with a brief survey of the challenges of comparison in public law,

both generally and with particular application to Commonwealth

jurisdictions.

5

5

See also, as far as the Commonwealth is concerned, Mike Taggart’sobservations on this

subject, in this volume.

424 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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