Comparing Administrative Justice across the Commonwealth: A First Scan

• Jurisdiction: South Africa
• Author: Hugh Corder
• Published date: 15 August 2019
• Citation: 2006 Acta Juridica 1
• Date: 15 August 2019
• Pages: 1-10

Comparing Administrative Justice across the

Commonwealth: A First Scan

HUGH CORDER*

University of Cape Town

In many continental countries, and notably in France, there exists a

scheme of administrative law . . . which rests on ideas foreign to the

fundamental assumptions of our English common law, and especially

what we have termed the rule of law .... It illustrates, by way of

contrast, the full meaning of that absolute supremacy of the ordinary law

of the land . . . which we have found to be a salient feature of English

institutions.

A V Dicey 1885

1

We believe that it is entirely consistent with best democratic practices for

the actions of governments to be scrutinised by the courts at the instance

of citizens, to ensure that decisions taken and administrative practices

followed comply in all respects with the Constitution, with relevant

statute law and other law, and with best administrative practices – namely

that administrative decisions be taken fairly, reasonably and according to

law....Administrative law . . . provides a f‌irm basis for the guidance of

ministers of government and civil servants in the discharge of their duties

....There is thus a creative tension between . . . the executive and the

judiciary which endures to the public benef‌it.

The Lusaka Statement on Government under the Law 1992

2

I BACKGROUND

Administrative law in England and its former colonies, which now form

the British Commonwealth, has undergone the most extraordinary

transformation over the past 40 years.

3

There are many reasons for this,

chief among them the need to regulate the substantial growth in

executive authority as the State has intervened increasingly in the

‘private’ sphere, ostensibly for the public benef‌it, and to give expression

to the idea of a participatory democracy that emphasises accountability

* Professor of Public Law and Dean, Faculty of Law, University of Cape Town.

1

Introduction to the Study of the Law of the Constitution 8 ed (1924) at 324–325.

2

Issued in Zambia on 15 October 1992, after a Commonwealth workshop to consider ‘the

relevance of administrative law to issues of governmental and political development’.

3

A standard text on the administrative law of any such country will testify to this. See, for

example, De Smith, Woolfand Jowell Principles of Judicial Review (1999) and Cora Hoexter The

New Constitutional and Administrative Law: Vol2 (2002).

1

2006 Acta Juridica 1

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