n Acta Juridica - To defer and then when? Administrative law and constitutional democracy : the constitutional context




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 . 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?' 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.


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