scholarly journals THE RULE OF LAW IN INDIAN ADMINISTRATIVE LAW VERSUS THE PRINCIPLE OF LEGALITY IN SOUTH AFRICAN ADMINISTRATIVE LAW: SOME OBSERVATIONS

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Radley Henrico
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Administrative Law ◽  
Indian Constitution ◽  
The Rule Of Law ◽  
Life Assurance ◽  
Equivalent Expression ◽  
The Republic ◽  
Principle Of Legality

The rule of law is expressly mentioned in the Constitution of the Republic of South Africa, 1996. The principle of legality has flourished in South African administrative law since its recognition and reception into our law in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). The Indian Constitution does not contain an equivalent expression of the rule of law. Notably, how persons and societies in India govern themselves is premised upon beliefs akin to the rule of law. Moreover, Indian administrative law has been strongly influenced by the theory of the rule of law as advocated by Dicey. Whilst Indian administrative law relies heavily upon the rule of law to judicially review conduct that is capricious, South African administrative law has come to rely on the incident of the rule of law, namely the principle of legality. This contribution inspects some of the reasons why the rule of law is heavily relied on in Indian administrative law – where it essentially mirrors the South African administrative law principle of legality. This contribution also suggests reasons as to why the principle of legality is so prevalent in South African administrative law as opposed to merely the rule of law as employed by the Indian courts in Indian administrative law.

scholarly journals The South African constitutional Court and the Rule of Law: The Masethla Judgment, A Cause for Concern

2017 ◽  
Vol 13 (3) ◽  
pp. 467
Author(s):  
Rósaan Krüger
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Procedural Fairness ◽  
Constitutional Court ◽  
The South ◽  
Public Power ◽  
The Rule Of Law ◽  
The Republic

The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa,[1] the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.[1]      2008 1 BCLR 1 (CC).

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

A PROPÓSITO DEL ORIGEN Y EVOLUCIÓN DEL RÉGIME ADMINISTRATIF

2010 ◽  
pp. 767-785
Author(s):  
JESÚS LEGUINA VILLA
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
The State ◽  
Point Of View ◽  
The Rule Of Law ◽  
Public Rights ◽  
Statutory Power ◽  
Administrative Courts ◽  
Ancien Régime ◽  
Principle Of Legality

El Derecho Administrativo es un producto propio y específico del constitucionalismo nacido tras la ruptura revolucionaria con el Antiguo Régimen, que resultará profundamente condicionado por las circunstancias sociopolíticas del país, Francia, donde nació. El Régimen Administrativo del Estado de Derecho se conforma a partir del principio de legalidad, de la potestad reglamentaria, de las libertades públicas y los derechos públicos subjetivos, de la responsabilidad de la Administración y del control a través de la jurisdicción contencioso-administrativa. Administrazio Zuzenbidea konstituzionalismoaren berezko produktua espezifikoa da, Frantziako Iraultzak Erregimen Zaharrarekin apurtu ostean sortua eta herrialde horren egoera soziopolitikoak sakon baldintzatua. Zuzenbide Estatuaren Administrazio Araubideak osatzeko hauek guztiak hartzen dira abiapuntu: legezkotasun-printzipioa, arauzko ahala, askatasun publikoak eta eskubide publiko subjektiboak, Administrazioaren erantzukizuna eta administrazio-auziarekiko jurisdikzioaren bidez egiten den kontrola. Administrative Law is a product typical and specific of the constitutionalism born after the revolutionary break-off with the Ancien Regime, which was deeply conditioned by the sociopolitical circumstances of the State, France, where it was born. The Administrative Regime of the Rule of Law was made up from the point of view of the principle of legality, the statutory power, public freedoms and subjective public rights, the liability by the Administration and the review by means of the contentious administrative courts.

scholarly journals Some Issues of the Relationship of the Judicial Systems of the Republic of Uzbekistan and the Republic of Karakalpakstan

2020 ◽  
Vol 6 (6) ◽  
pp. 244-251 ◽  
Author(s):  
G. Berdimuratova
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The Rule Of Law ◽  
The Republic ◽  
The Government ◽  
Relationship Of ◽  
Principle Of Legality ◽  
The Relationship ◽  
Mechanism Of Separation ◽  
Judicial Systems

This work is devoted to the consideration of the constitutional directions of interaction and interdependence of the judiciary of the Republic of Uzbekistan and the Republic of Karakalpakstan. As a result of studying the issues under consideration, the author concludes that the importance and significance of the role and place of the judicial branch of the government in the mechanism of separation of powers is precisely in ensuring the rule of law, avoiding violations of the principle of legality and the rule of law based on it.

The Dissolution of Municipal Councils due to Organized Crime Infiltration

2019 ◽  
Vol 5 (2) ◽  
pp. 45
Author(s):  
Filomena Occhiuzzi
Keyword(s):  
Rule Of Law ◽  
Organized Crime ◽  
Central Government ◽  
Administrative Law ◽  
Public Officials ◽  
Local Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
The Republic ◽  
Fundamental Values

: The paper proposal is focused on the evolution of a specific legal instrument, which consists of the Central government’s power to “dissolve” municipal councils in the case of infiltrations by organized crime. In Italian administrative legislation, local councils may be dissolved for several reasons such as the ongoing violation of the law and the neglect of duty, but one of the most debated causes is the interference and the pressure that organized crime may exercise on the members of municipal councils. This specific administrative law instrument is defined in art. 143 T.U.E.L. and is part of a series of public anti-mafia policies. It was introduced in 1991 as an emergency law to cope with the risk of maladministration due to local authorities’ subjugation to criminal power (Mete, 2009). The aim of the dissolution of local councils is to preserve constitutional and fundamental values such as democracy and the rule of law, but it is a very severe legal tool as it affects a democratically elected community. This instrument is also closely related to the prevention of corruption in the public sector, as often the infiltrations by organized crime in municipalities are due to the corruption of public officials. The institution in charge of applying this legal tool is the Prefect, which has the power to enforce the orders of the central government and oversees local authorities. The procedure for the adoption of this instrument involves the major constitutional bodies such as the Parliament, the Ministry of Interior and the President of the Republic.

scholarly journals IN LIGHT OF ‘NKANDLA’, WHAT IS THE ROLE OF THE PUBLIC PROTECTOR IN UPHOLDING THE RULE OF LAW IN SOUTH AFRICA?

2016 ◽  
Author(s):  
Aadelah Shaik Yakoob
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Economic Freedom ◽  
National Assembly ◽  
The Rule Of Law ◽  
The Public ◽  
Freedom Fighters

The focus of this article will be to ascertain what role, if any, the Public Protector plays in achieving and upholding the rule of law as envisaged in section 1(c) of the Constitution. In doing so, I will assess the powers of the Public Protector as envisaged by the Constitution and supporting legislation and analyse the effect of recommendations made by the Public Protector. I will then offer a discussion on certain shortfalls within the legislation that have become a hindrance to the Public Protector achieving her mandate in practice. I will, further, highlight the importance of the powers of the Public Protector as an avenue to achieving the rule of law, and, offer an analysis of the judgments in South African Broadcasting Commission v Democratic Alliance and Economic Freedom Fighters v Speaker of the National Assembly. I will, finally, conclude by discussing possible solutions to the challenges faced by the Public Protector in practice and offer a summary of my views.

POSEBNE (UPRAVNE) ORGANIZACIJE U MILjEU VLADAVINE PRAVA

2021 ◽  
Author(s):  
Milan Rapajić ◽  
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Anglo Saxon ◽  
The Rule Of Law ◽  
State Administration ◽  
The Law ◽  
The Republic ◽  
Principle Of Legality ◽  
Administrative Tasks ◽  
Positive Properties

The modern state administration and its bodies and special organizations should act in the field of the rule of law. It is a term that originates from the Anglo-Saxon legal world, but it is also a category and a principle of the Constitution of Serbia from 2006. The paper points out the different understandings of the rule of law and briefly looks at the position of the administration or the phase in its historical course until its subsumption under the principle of legality. In Serbia, state administration bodies consist of ministries, administrative bodies within the ministry and special organizations. Administrative or special organizations are formed by the state in order to perform professional and related administrative tasks. In order to permanently and unhinderedly perform the professional work of these organizations, they can act authoritatively. Special organizations have numerous and diverse administrative powers. The paper points out both the similarities and differences of special organizations in relation to administrative bodies. A review of the activities and organizational structure of all special organizations (secretariats, institutes, directorates and one center) established by the Law on Ministries from 2020 was performed. It was also pointed out that all institutes: the Republic Institute of Statistics, the Republic Hydrometeorological Institute, the Republic Geodetic Institute and the Intellectual Property Institute are special organizations that provide services to interested parties. In one part of the final considerations, the author states that for special organizations (as part of the state administration) it could be concluded that they really operate in the field of rule of law as an order with positive properties as characterized by the Constitution, it is necessary to strictly respect the principles organization of state administration prescribed by the Law on State Administration: independence and legality; expertise, impartiality and political neutrality, effectiveness in exercising the rights of the parties, proportionality and respect for the parties; publicity of work.

Cynicism and the Rule of Law: A Critical Analysis of President of the RSA V M&G Media Limited 2012 2 SA 50 (CC) and Associated Judgments

2017 ◽  
Vol 30 (2) ◽  
pp. 580-597
Author(s):  
Karthy Govender ◽  
Paul Swanepoel
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Current System ◽  
Criminal Court ◽  
The State ◽  
Access To Information ◽  
Discretionary Power ◽  
The Rule Of Law ◽  
The Government

In June 2015 the High Court granted an interim order prohibiting Sudanese President Omar al-Bashir from leaving South Africa. Although Al-Bashir is wanted by the International Criminal Court for war crimes and South Africa is a signatory to the Rome Statute and has passed the Implementation Act, the government failed to arrest him as required by an order of court. Short-term political considerations appear to have outweighed the need to respect the rule of law. Parallels can be drawn between this incident and the decision by the executive to refuse access to the Khampepe Report when requested to do so by the Mail and Guardian newspaper. The report was prepared at the request of former President Mbeki by two senior South African judges, after a visit to Zimbabwe shortly before the election held in that country in 2002. In an attempt to prevent disclosure, the executive approached various courts on six different occasions and drew out the process for more than six years. The main issue in this case is the use of section 80 of the Promotion of Access to Information Act by the courts, a discretionary power that is applied sparingly. In terms of PAIA, the state is prevented from making reference to the content of a record in order to support a claim of exemption. In such instances, section 80 provides courts with the power to inspect the record – a procedure known as a ‘judicial peek’ – in order to make a determination as to whether the exemption is justified. This case provides a clear example of how the state cynically used this provision as a dilatory tactic in refusing access to the report. The current system that relies solely on the courts to handle access to information matters undermines the main objectives of the Act and is inefficient and costly. It is recommended that PAIA be amended to provide for an information commissioner with powers to mediate and make binding decisions.

The Dissolution of Municipal Councils due to Organized Crime Infiltration

2019 ◽  
Vol 5 (2) ◽  
pp. 45
Author(s):  
Filomena Occhiuzzi
Keyword(s):  
Rule Of Law ◽  
Organized Crime ◽  
Central Government ◽  
Administrative Law ◽  
Public Officials ◽  
Local Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
The Republic ◽  
Fundamental Values

: The paper proposal is focused on the evolution of a specific legal instrument, which consists of the Central government’s power to “dissolve” municipal councils in the case of infiltrations by organized crime. In Italian administrative legislation, local councils may be dissolved for several reasons such as the ongoing violation of the law and the neglect of duty, but one of the most debated causes is the interference and the pressure that organized crime may exercise on the members of municipal councils. This specific administrative law instrument is defined in art. 143 T.U.E.L. and is part of a series of public anti-mafia policies. It was introduced in 1991 as an emergency law to cope with the risk of maladministration due to local authorities’ subjugation to criminal power (Mete, 2009). The aim of the dissolution of local councils is to preserve constitutional and fundamental values such as democracy and the rule of law, but it is a very severe legal tool as it affects a democratically elected community. This instrument is also closely related to the prevention of corruption in the public sector, as often the infiltrations by organized crime in municipalities are due to the corruption of public officials. The institution in charge of applying this legal tool is the Prefect, which has the power to enforce the orders of the central government and oversees local authorities. The procedure for the adoption of this instrument involves the major constitutional bodies such as the Parliament, the Ministry of Interior and the President of the Republic.

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