n South African Law Journal - The enforcement of an official promise : form, substance and the Constitutional Court : notes
|Article Title||The enforcement of an official promise : form, substance and the Constitutional Court : notes|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 University of theWitwatersrand|
|Publication Date||Jan 2015|
|Pages||207 - 229|
'How important is the legal label one attaches to a set of facts upon which a party relies for a remedy under the law?' Froneman J asked in KwaZulu-Natal Joint Liaison Committee v MEC, Department of Education, KwaZulu-Natal & others 2013 (4) SA 262 (CC) ('KZN Joint Liaison Committee'). The answers offered by Cameron J for a majority of the Constitutional Court, and by Froneman J himself in a separate opinion, might alarm sticklers for procedure, but will interest those who believe that substance is more important than form. The case is remarkable primarily because the majority was prepared to enforce an official promise on public-law principles even though the claim was apparently framed in contract. This note explores three aspects of the majority judgment of Cameron J in KZN Joint Liaison Committee. It is suggested, first, that it is remarkable for its 'anti-formalism' in the sense of its willingness to overcome procedural obstacles in the way of the applicant. A second and related feature is that the judgment countenances avoidance of the statute that governs administrative law review, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It has become commonplace for litigants to sidestep the PAJA by invoking a general constitutional principle instead, and the majority judgment in KZN Joint Liaison Committee may be regarded as facilitating avoidance of the statute in a not dissimilar manner.
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