n South African Law Journal - The enforcement of an official promise : form, substance and the Constitutional Court : notes

Volume 132, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



'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 2013 (4) SA 262 (CC) (''). 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 . 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 may be regarded as facilitating avoidance of the statute in a not dissimilar manner.

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