n Acta Juridica - Comparing administrative justice across the Commonwealth : a first scan

Volume 2006, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



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. 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 and justification. This has become a prominent ideal of good governance over the past 20 years or so, and has led frequently to talk of administrative justice rather than administrative law.

South African administrative law, like much of the public and commercial law in place in that country, is based in English administrative law. However, because of South Africa's expulsion from the Commonwealth in 1961 and the reluctance of its judiciary to develop the common law of judicial review of administrative action (the main form of administrative review) so as to regulate more closely the autocratic rule of the executive under apartheid, South African administrative law largely failed to develop in concert with progressive changes in the administrative law of other Commonwealth countries. This situation changed dramatically in the early 1990s as the demise of apartheid witnessed the introduction of a thoroughly modern model of a constitutional democracy, with a Bill of Rights which included, from 1994, a 'right to administrative justice'. A statute which attempts to provide greater detail about the process and substance of judicial review of administrative action followed in 2000, and the courts have been busily engaged in bringing the law in practice into line with the requirements of this legislative framework. Influences from other constitutional systems in the Commonwealth are to be seen in all forms of this current law.

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