Three Waves of Administrative Justice in South Africa

• Jurisdiction: South Africa
• Author: Jonathan Klaaren
• Published date: 15 August 2019
• Pages: 370-386
• Date: 15 August 2019
• Citation: 2006 Acta Juridica 370

Three Waves of Administrative Justice in

South Africa

JONATHAN KLAAREN*

University of the Witwatersrand

I INTRODUCTION

Administrative justice is arguably a broader topic than that of administra-

tive law – encompassing as it might understandings of culture, organisa-

tional change, and bureaucracy, not to mention political philosophy.

Nonetheless, administrative law itself has become broader in South Africa

of late – now encompassing topics such as access to information and

whistle-blowing protection that could not have been taught at any length

previously.Adopting the viewpoint that administrative law and justice by

necessity overlap, this paper has two related aims. The f‌irst is to

investigate the current state of the South African access to information

regime. The second is to tentatively identify three waves of administra-

tive justice that have washed over South African shores. The paper

concludes by assessing the most signif‌icant set of drivers of change within

the information regime with particular attention to their transnational

character.

Beginning with the f‌irst aim, Part One brief‌ly explores the current

state of access to information in South Africa. It investigates the extent to

which three signif‌icant sets of organisations (the civil service, the security

services, and large private organisations) have changed the information

policies and practices that they implemented in the late years of the

apartheid regime. Addressing the latter aim, Part Two outlines three

waves of administrative justice. The f‌irst wave of administrative law is

more or less doctrinal and draws upon normative shifts; it can be thought

to include changes in the legal system in response to the new

Constitution. The second wave of administrative law would be those

specif‌ic institutions (apart from the judiciary) that attempt to ensure

compliance with administrative law within government, ie. institutions

such as the Public Protector, the Auditor General, and the legal drafting

off‌ices. The third wave of administrative justice is more diffuse. It

includes practices such as the institutionalisation of the Public Finance

Management Act 1 of 1999 (PFMA), the present Cabinet agenda item of

South Africa’spotential adoption of regulatory impact analysis (RIA), the

standardisation of public procurement in the form of supply chain

* Professor, School of Law, University of the Witwatersrand and Director, Mandela

Institute. Comments are welcome and may be sent to jonathan.klaaren@law.wits.ac.za.

370

2006 Acta Juridica 370

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management regulations,

1

and the spread of risk management techniques

such as public private partnerships (PPPs). At their most broad, the

practices in this third wave could be termed meta-regulatory practices.

Part Three returns to the subject matter of the current access to

information regime. It argues that the doctrinal and institutional waves of

administrative justice (the f‌irst and second waves) do not appear to be as

signif‌icant sources of change within this sector of South African

administrative law as the set of drivers within the third wave of

administrative justice.

PART I: SOUTH AFRICA’S ACCESS TO INFORMATION

REGIME AND ITS EXTENT OF TRANSFORMATION

This Part brief‌ly explores the current state of access to information in

South Africa by examining the changing practices within three sets of

organisations signif‌icant to South Africa.

2

In the transformation of the

civil service generally, there is genuine change, as well as pockets of

opposition, in addition to a perceived more recent general retreat from

public participation. For the security services, there has been real but

essentially superf‌icial change in operative practices. In part due to a

legislative process that lacks any sense of urgency, the private information

holding corporations lag behind global standards in respect of informa-

tion disclosure. With regard to each set of organisations, this section f‌irst

identif‌ies the apartheid context from which the right of access to

information has emerged, as well as the 1994 baseline state of the right of

access to information. It then assesses the developments in information

practice in these three sectors from 1994 to 2004.

(1) The Baseline State of Access to Information

(a) Civil Service

South Africa’s pre-1994 civil service was notorious for its secrecy.

3

The

Truth and Reconciliation Commission (TRC) has noted that ‘[i]n

apartheid South Africa, government secrecy was a way of life. . . . [Public

1

See Regulations in respect of Framework for Supply Chain Management (GNR 1734 of

5 December 2003) (enacted in terms of the PFMA).

2

The material in this Part draws upon research and writing conducted by the author for the

South African Human Rights Commission as part of the Commission’s assessment of rights

after ten years of democracy, a research initiative conducted during 2004, Ref‌lections on

Democracy and Human Rights (2006) 167–171. The funding of the SAHRC, the permission to

use this material, and the assistance of the participants and discussants in that research project

are gratefully acknowledged.

3

See generally I Currie & J Klaaren The Promotion of Access to Information Act Commentary

(2002) 2–3. See also A Mathews The Darker Reaches of Government: Access to Information About

Public Administration in Three Societies (1978) and C Merrett A Culture of Censorship: Secrecyand

Intellectual Repression in South Africa (1994).

371THREE WAVES OF ADMINISTRATIVE JUSTICE IN SOUTH AFRICA

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