scholarly journals The application of just administrative action in the South African environmental governance sphere: an analysis of some contemporary thoughts and recent jurisprudence

2017 ◽  
Vol 7 (2) ◽  
pp. 57 ◽  
Author(s):  
LJ Kotzé
Keyword(s):  
South African ◽  
Environmental Governance ◽  
Environmental Law ◽  
Case Law ◽  
Constitutional Rights ◽  
Development Activity ◽  
Administrative Action ◽  
The Right ◽  
The Relationship ◽  
Administrative Justice

Administrative law, and more specifically administrative justice, is becoming increasingly important in the context of environmental law. The enforcement of environmental law depends to a large extent on administrative decision-making by environmental authorities. A developer who whishes to undertake a development activity that may have a detrimental effect on the environment, will require an environmental authorization that must be granted by the relevant environmental authority. There may be certain instance where the application for such an authorization is unduly delayed, or where there are mala fides on the part of the relevant authority. This may inevitably infringe the right of the developer to, inter alia, administrative justice. It is argued in this article that the developer has certain constitutional rights which can be invoked when dealing with environmental authorities. Hence, the discussion in this article focuses on the relationship between administrative justice and environmental governance; the constitutional rights of the developer; and recent case law that supports the proposal that the developer has legal recourse when her right to administrative justice has been infringed. 

Administrative Justice in Kenya: Learning from South Africa's Mistakes

2018 ◽  
Vol 62 (1) ◽  
pp. 105-128
Author(s):  
Cora Hoexter
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Rights ◽  
The South ◽  
Administrative Action ◽  
African Experience ◽  
Administrative Justice

AbstractThe wording of article 47 of Kenya's Constitution of 2010 is almost identical to that of the section 33 rights to just administrative action in South Africa's 1996 Constitution. Like section 33, article 47 mandates the enactment of legislation to give effect to these constitutional rights, and Kenya's Fair Administrative Action Act 4 of 2015 was strongly influenced by the equivalent South African legislation, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). South Africa can thus be regarded as a sort of laboratory for Kenyan administrative justice. The aim of this article is to highlight some of the South African experience in relation to section 33 and the PAJA in the hope that Kenya will learn from some of South Africa's mistakes. It argues that the Kenyan courts should avoid following the example of their South African counterparts in allowing their mandated legislation to become almost redundant.

scholarly journals Globalisation, the Development of Constitutionalism and the Individual Employee

2017 ◽  
Vol 10 (2) ◽  
pp. 1
Author(s):  
K Calitz
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Constitutional Rights ◽  
Private International Law ◽  
Employment Contracts ◽  
Constitutional Protection ◽  
The Individual ◽  
The Right ◽  
The Relationship

Summary To establish which legal system will govern the relationship between parties involved in an international employment contract, the rules of private international law (or conflict of laws) must be applied. Each country has its own rules of private international law and each country’s courts will apply its own rules if the court is seized with a matter that involves foreign elements.  There may be conflict between the potentially applicable legal systems of countries in terms of the level of protection afforded to employees who are parties to international employment contracts. South Africa has constitutionalised the right to fair labour practices and the question is whether this right is applicable to South African employees working in other countries, or to foreigners working in South Africa who originate from countries where this right is not protected. The answer to this question is to be found in the influence of the Constitution on the rules of private international law as applied by South African courts. It is evident from recent judgments of the Labour Court that the Court will readily assume jurisdiction and will furthermore readily hold that the proper law of the contract is South African law in order to protect the constitutional rights of employees involved in international employment contracts. Had the Labour Court held that the place of performance was still the decisive connecting factor, (as previously decided in most South African cases on thisaspect) the law of the other countries involved in the international employment relationship could have left employees in a worse position than under South African law. This possibility seems to be one of the important underlying reasons for the Labour Court’s willingness to assume jurisdiction and to hold that the proper law was in fact South African law.  In the globalisation context the Labour Court has contributed to the advancement of constitutionalism by developing South Africa’s common law rules of private international law to afford constitutional protection to employees involved in international employment contracts. 

scholarly journals The Horizontal Effects of Charter Rights Given Expression to in EU Legislation, from Mangold to Bauer

2019 ◽  
Vol 12 (2) ◽  
pp. 185-215
Author(s):  
Elise Muir
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Special Issue ◽  
Max Planck ◽  
Eu Legislation ◽  
Scope Of Application ◽  
Effective Remedy ◽  
The Right ◽  
The Relationship ◽  
Eu Fundamental Rights

This paper investigates the relationship between legislative provisions and fundamental rights by analyzing the Egenberger, IR, Bauer, Max-Planck and Cresco cases. This paper understands these cases as an invitation to reflect on whether, and if so, to what extent, EU fundamental rights' legislation, read in conjunction with the Charter, could have an impact on the scope of application, substance and/or legal effects of the Charter. This paper argues that the Court of Justice's recent case law can be understood as allowing for EU legislative guidance on fundamental rights to interact in an upward process with the rights enshrined in norms with the same rank as EU primary law. This paper sheds light on the constitutional implications of the overlaps between legislation and constitutional norms on fundamental norms while other contributions in this special issue address effectiveness and the right to an effective remedy in a broader sense.

Social justice and administrative justice

2021 ◽  
Author(s):  
Jackie Gulland
Keyword(s):  
Social Justice ◽  
Health Education ◽  
Life Expectancy ◽  
United Nations ◽  
Material Wealth ◽  
Community Activists ◽  
The Social ◽  
The Right ◽  
The Relationship ◽  
Administrative Justice

Social justice is a popular concept, used by academic theorists, international bodies such as the United Nations, politicians on both the left and the right and by community activists. This chapter considers how the term ‘social justice’ may or may not be useful in the context of ‘administrative justice’ by looking at the relationship between administrative justice and structural inequalities. Administrative justice scholars usually focus on procedures. By contrast, social justice scholars are more concerned with substantive outcomes. They draw attention to the major rifts in society which lead to huge inequalities of outcome in terms of material wealth, health, education and life expectancy. Administrative justice, with its emphasis on rule following and fair procedures, can often seem divorced from these inequalities. This is where the concept of social justice can help administrative justice scholars. Administrative justice scholars, often dismiss outcomes as being beyond the reach of law, as being about politics. The emphasis on the ‘social’ in social justice compels us to look at this broader context and to show us how the great schisms in society create and enforce inequality.

From Autonomy to Integration? International Law, Free Trade and the Environment

2008 ◽  
Vol 77 (3) ◽  
pp. 253-273 ◽  
Author(s):  
Michael Mehling ◽  
Anja Lindroos
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Case Law ◽  
International Environmental Law ◽  
International Treaty ◽  
Trade Law ◽  
International Trade Law ◽  
Trade And The Environment ◽  
Relationship Of ◽  
The Relationship

AbstractOur current understanding of so-called “self-contained regimes” is based on an overly simplistic appreciation of how such regimes interact with each other and with the larger body of international law. Drawing on an analysis of WTO case law, this article highlights two distinct normative relations, addressing the relationship of international trade law vis-à-vis general international law and international environmental law. As the analysis reveals, further differentiation of normative relationships is needed to better understand how such seemingly independent regimes operate in a fragmented legal system. It also shows that a recently proposed interpretative tool, systemic integration, raises new questions and challenges traditional conceptions of international treaty law.

Australia

2019 ◽  
pp. 58-81
Author(s):  
Douglas Fisher
Keyword(s):  
Complex System ◽  
Environmental Governance ◽  
Environmental Law ◽  
Environmental Values ◽  
Implementation Framework ◽  
State Legislation ◽  
Credible Information ◽  
Ecologically Sustainable ◽  
The Relationship ◽  
Ecologically Sustainable Development

This chapter examines the structure and substance of environmental law in Australia. It begins with a discussion of how powers are distributed in environmental governance in Australia, taking into account the law’s constitutional basis, and more specifically the division of legislative capacity between the states and the Commonwealth, as well as the relationship between Commonwealth and state legislation in practice. It then considers environmental protection, with a focus on protection from pollution and harm, conservation of environmental values, and the emergence of a complex system to facilitate ecologically sustainable development. It also analyses the implementation framework for Australian environmental law, emphasizing the importance of credible information and analysis in making decisions about the future use of the environment and about past actions impacting on it. Finally, it explores the nature of sanctions and remedies, including compliance with liability rules and decision-making rules as well as the nature of environmental litigation.

Developing the Jurisprudence of Constitutional Remedies for Breach of Fundamental Rights in South Africa: An Analysis of Hoffman and Related Cases

2018 ◽  
Vol 32 (1&2) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Case Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The Novel ◽  
Labour Law

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.

Right of Residence

2019 ◽  
pp. 113-187
Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin
Keyword(s):  
Member State ◽  
Case Law ◽  
The Other ◽  
Free Movement ◽  
Equal Treatment ◽  
Social Benefits ◽  
The One ◽  
The Right ◽  
The Relationship

This chapter details the right of residence provided for in the citizens’ Directive. The citizens’ Directive regulates and gives detailed expression to the right of free movement and residence conferred by the Treaties on Union citizens. At its simplest, the Directive regulates residence on the basis of the intended duration of a stay in another Member State. The chapter then evaluates case law which concerns the relationship between the right to equal treatment, on the one hand, and the right of residence, on the other, and whether mobile Union citizens could rely on the principle of equality as a basis for claiming a right to access social benefits and maintaining a right to reside in a host Member State.

The Relationship Between Job Satisfaction And Life Satisfaction: Empirical Evidence From Logistics Practitioners In A South African Steel-Making Company

2014 ◽  
Vol 13 (3) ◽  
pp. 453 ◽  
Author(s):  
Chengedzai Mafini
Keyword(s):  
Job Satisfaction ◽  
Life Satisfaction ◽  
South African ◽  
Satisfaction With Life Scale ◽  
Workplace Flexibility ◽  
Steel Making ◽  
The Right ◽  
Nonparametric Correlation ◽  
The Relationship ◽  
Satisfaction Factors

There has been an explosion of research interests centered upon the job satisfaction-life satisfaction nexus within organizations. Be that as it may, there is a relative paucity of research on the job satisfaction of logistics practitioners in general and limited evidence of studies that specifically address the issue of job satisfaction in the steel-making industry in developing countries. The aim of this study was to investigate the structural relationships between job satisfaction and life satisfaction. The study followed a quantitative survey approach in which a three-section questionnaire was administered to 192 purposively selected logistics practitioners in a South African steel-making company. The Minnesota Job Satisfaction Scale and the Satisfaction with Life Scale were adapted for this study. Data were analysed through Principal Component Analysis using Varimax rotation, nonparametric correlation analysis, and descriptive statistics. Five job satisfaction factors, namely, skills utilisation, workplace flexibility, autonomy, teamwork, and remuneration were extracted. The five factors attained high Cronbach Alpha values above the recommended 0.70, which indicates high internal consistencies among the sub-scales. Positive, significant relationships were found between life satisfaction and two factors, namely, skills utilization and remuneration. Weak relationships were found between life satisfaction and three job satisfaction factors, namely, teamwork, workplace flexibility, and autonomy. Mean score rankings showed that among the job satisfaction factors, skills utilisation was more important to logistics practitioners. The study is important in that it provides further verification of the patterns in the relationship between job satisfaction and life satisfaction. By examining the structural interplay between job and life satisfaction variables among logistics practitioners, organizations may be better equipped to initiate strategies of meeting the needs of their logistics workforce, thereby facilitating improved organizational performance as measured through the ability to deliver the right product to the right place at the right time, which is the mission of logistics.

scholarly journals The Right to Just Administrative Action in the Context of Suspending the Payment of Disputed Tax

2017 ◽  
Vol 20 ◽  
pp. 1-26
Author(s):  
Silke De Lange ◽  
Danielle Van Wyk
Keyword(s):  
South Africa ◽  
Literature Review ◽  
South African ◽  
Tax Administration ◽  
Research Approach ◽  
Administrative Action ◽  
The Republic ◽  
The Right ◽  
Relevant Factors ◽  
Discretionary Powers

Section 164(3) of the Tax Administration Act 28 of 2011 (hereafter TAA) provides a senior South African Revenue Service official (hereafter, respectively, SARS and senior SARS official) with discretionary powers to suspend the payment of disputed tax or a portion thereof, having regard to relevant factors, if the taxpayer intends to dispute the liability to pay such tax. Exercising a discretion in terms of section 164(3) of the TAA constitutes administrative action. Section 33(1) of the Constitution of the Republic of South Africa, 1996 (hereafter Constitution) grants everyone the right to just administrative action that is lawful, reasonable and procedurally fair and the Promotion of Administrative Action Act 3 of 2000 (hereafter PAJA) was promulgated to give effect to this right. The objective of this article is to apply the right to just administrative action to the manner in which the discretion in terms of section 164(3) of the TAA is exercised. This is achieved by adopting an explanatory research approach and performing a literature review of the discretion process in terms of section 164(3) of the TAA and the constitutional obligations in terms of section 33 of the Constitution as given effect to in PAJA. As the discretion exercised by the senior SARS official is influenced directly by the right to just administrative action, it should be exercised in a lawful, reasonable and procedurally fair manner to ensure compliance with the Constitution and the PAJA. For the discretion to be exercised in a lawful manner, the senior SARS official must at least be authorised to exercise the discretion in terms of the TAA and comply with the procedures and conditions stated in section 164(3) of the TAA. For the decision to be considered reasonable, the decision must be, at the minimum, rational and proportional, and to ensure that the discretion is exercised in a procedurally fair manner, SARS should comply with at least the relevant compulsory elements in terms of section 3(2)(b) of PAJA. A decision in terms of section 164(3) of the TAA which fails to meet the requirements of lawfulness, reasonableness and/or procedural fairness will be subject to review on several grounds listed in section 6(2) of PAJA.     

Sign in / Sign up

Export Citation Format

Share Document