To Defer and then When? Administrative Law and Constitutional Democracy

• Jurisdiction: South Africa
• Author: Dennis M Davis
• Pages: 23-41
• Published date: 15 August 2019
• Date: 15 August 2019
• Citation: 2006 Acta Juridica 23

To Defer and then When? Administrative

Law and Constitutional Democracy

DENNIS M DAVIS*

High Court of South Africa

I INTRODUCTION

South African administrative law is now f‌irmly rooted within the

framework of the Constitution. If there was ever any doubt about this

proposition, certainty was achieved with the judgment of Chaskalson P

(as he then was) in Pharmaceutical Manufacturers Association SA: in re ex parte

President of the Republic of South Africa.

1

It follows that the overarching

purpose of South African administrative law is the promotion of a

deliberative, accountable democracy, the foundational principles of

which have their source in the Constitution. The argument of this paper

is that, in order to promote this constitutional vision, South African

administrative law is required to foster the principles of participation and

accountability which ensure that government justif‌ies its decisions to

those whom it governs. The development of the content of these

principles will promote the construction of a body of administrative law

which f‌its within the Constitution which is the source of all legal

development.

Although judicial review is not the only mechanism available to

promote the principles of participation and accountability in governance,

it is an important means to the attainment of transparent and accountable

government. Indeed, as Murray Hunt correctly claims, the central

question of a system of administrative law, particularly when located

within a constitutional dispensation, is ‘what are the proper boundaries to

the respective powers of different branches of government, and who

decides on where those boundaries are drawn?’

2

The answer to this

question is bedevilled by a conceptual framework of administrative law

which was sourced in a very different political and economic context.

That framework is encrusted with concepts that addressed a Diceyan

distrust of a state that played a signif‌icant role in the social and economic

foundations of society.

* Judge of the High Court of South Africa, Cape Provincial Division. The author thanks

Hugh Corder for his helpful suggestions.

1

2000 (2) SA 674 (CC) at paras 43–45.

2

Murray Hunt ‘Sovereignty’s Blight: Why contemporary public law needs the concept of

‘‘due deference’’ ’in Nicholas Bamforth and Peter Leyland (eds) Public Law in a multi-layered

constitution (2003) 337–370 at 338.

23

2006 Acta Juridica 23

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Viewed historically, the problem of shaping an adequate model for

administrative law which advances a deliberative democracy is that the

body of inherited administrative law is a product of distinct periods of

legal thought. In this connection the recent scholarship of Duncan

Kennedy holds considerable signif‌icance.

3

Brief‌ly stated, Kennedy

contends that in the f‌irst period between 1850 and 1914, that of classical

legal thought, the dominant legal philosophy was positivism, and the

core of law was to be found in private law with a particular emphasis on

individual rights and property rights. Private law was dominated by a will

theory which viewed the primary role of government as that of allowing

individual citizens to realise their wills which should only suffer restraint

to the extent necessary to permit others to do the same. In parts of

Europe, particularly France, a body of administrative law did emerge but

many of these developments began to escalate with the second wave

around the turn of the century. In England, the inf‌luence of Dicey

ensured a deep distrust for any supervisory role of the courts over the

administration. For Dicey, all exercise of public power was to be

channelled through Parliament. Executive action should be subject to

oversight by the House of Commons.

4

According to Dicey, Parliament

ref‌lected the will of the people and hence was the appropriate mechanism

within a democratic state to exercise such an oversight role.

During the second period of modern legal thought, commencing

around 1900 and continuing until at least 1968, group and social rights

replaced individual rights as the hegemonic construct, together with legal

pluralism rather than legal positivism, and the importance of social

welfare rather than individual rights. This was the period when a

combination of urbanization, industrialization and global markets pro-

moted a process of interdependence. As Duncan Kennedy notes, this was

the period of social legislation including the birth of modern labour law,

social insurance, anti-trust legislation, and the establishment of institu-

tions to police this legislation. In short, ‘social legislation meant

expanding the regulatory functions of the state, carving out and

redef‌ining as public law vast areas that had fallen safely within the domain

of right, will and fault.’

5

These fundamentals began to shape law in general and administrative

law in particular. Immediately after the Second World War, an interna-

tional set of mechanisms was created, including the International

Monetary Fund and the World Bank, accompanied by the vision of

Bretton Woods. At the same time, a further development took place: a

3

Duncan Kennedy ‘Two Globalisations of Law and Legal Thought 1850–1968’2003 (36)

Suffolk University Law Review 631.

4

AVDicey Law of the Constitution 8ed (1938) chapter 13.

5

Kennedy (n 3) at 654.

24 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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