Substantive Reasoning and The Concept of ‘Administrative Action’

by | Aug 13, 2019 | V136 I1 2019

Substantive Reasoning and The Concept of ‘Administrative Action’

Author Glenn Penfold

ISSN: 1996-2177
Affiliations: Partner, Webber Wentzel; Visiting Senior Lecturer, University of the Witwatersrand
Source: South African Law Journal, Volume 136 Number 1, May 2019, p. 84 – 111

Abstract

In giving meaning to the threshold concept of ‘administrative action’ in the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), courts should adopt a substantive, non-formalistic approach. Such an approach is mandated by the value-laden Constitution and its injunctions to interpret both the Bill of Rights and legislation so as to promote constitutional values. Substantive reasoning is more than the avoidance of formalism. It also means that courts are constrained by the constitutional and legislative text — a constraint that flows from the separation of powers and the rule of law. The challenge is to give meaning to the concept of ‘administrative action’ in a manner which promotes fundamental principles such as accountability, transparency and administrative justice, whilst respecting the text of PAJA. While a number of judicial decisions as to whether or not conduct amounts to ‘administrative action’ are imbued with substantive reasoning and stay on the path mapped out in the Constitutional Court’s jurisprudence, some appear to stray into formalism, while others veer off past what PAJA’s language would seem to permit.

Notes: Disproportionality – The hidden ground of review: Medirite (Pty) Ltd v South African Pharmacy Council & Another

by | Aug 10, 2019 | V136 I1 2019

Notes: Disproportionality – The hidden ground of review: Medirite (Pty) Ltd v South African Pharmacy Council & Another

Author Clive Plasket

ISSN: 1996-2177
Affiliations: Judge of the High Court, Eastern Cape Division; Honorary Visiting Professor, Rhodes University
Source: South African Law Journal, Volume 136 Number 1, Mar 2019, p. 15 – 26

Abstract

None

Regulating Expression on Social Media

by | May 26, 2019 | V136 I1 2019

Regulating expression on social media

Author Daniel Sive and Alistair Price

ISSN: 1996-2177
Affiliations: 1 Constitutional Court and 2 University of Cape Town
Source: South African Law Journal, Volume 136 Number 1, Mar 2019, p. 51 – 83
Accreditation: Law Clerk, Constitutional Court; Associate Professor, Faculty of Law, University of Cape Town

Abstract

The growth of online communication, including social media, poses regulatory challenges for the state. There may be legitimate reasons to curb forms of online expression, such as hate speech, child pornography, incitement of imminent violence, defamation or copyright infringement. Yet censorship potentially infringes constitutional rights to freedom of expression, privacy, and just administrative action. This article explores the regulation of online expression in South Africa, focusing on the role of social media platforms in publishing or suppressing speech. We compare a range of direct and indirect strategies adopted by democratic states when enforcing their laws online, thereby demonstrating how South Africa combines ‘top-down state control’ with attempted case-by-case regulation of end-point users’ expression on social media. We argue that the legal framework in this context is underdeveloped, and draw on a model of ‘regulated self-regulation’ to propose a legal basis for judicial oversight over social media platforms’ decisions to censor or publish their users’ expression. Under existing law, our courts may review such decisions where they constitute exercises of discretionary contractual powers. This regulatory strategy accommodates the public role played by social media platforms, affording them sufficient scope to choose and implement their own policies, while setting a judicial safeguard for constitutional rights.