n South African Journal on Human Rights - Deference as respect and deference as sacrifice : a reading of

Volume 20, Issue 4
  • ISSN : 0258-7203



The Constitutional Court was recently asked to review an administrative decision to allocate fishing rights. The case raises the question of the proper role of the Court in review proceedings vis-a` -vis the administration in respect of the transformation of the fishing industry. The Court held that the allocation decision in question was lawful, reasonable and procedurally fair. The judgment is critically analysed in this article in respect of the findings of lawfulness and reasonableness. It is argued that the Court has still not succeeded in departing from the formalistic approach which has characterisedad ministrative law jurisprudence for most of the 20th century. It is contended that for the Court to show a concern with administrative justice, it not only has to abandon its formalistic approach, but it has to adopt a vocabulary of sacrifice. Such a vocabulary will register the ordeal of having to judge in accordance with the law whilst at the same time being calledupon to bring about administrative justice.

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