THE EBB AND FLOW OF THE APPLICATION OF THE PRINCIPLE OF SUBSIDIARITY – CRITICAL REFLECTIONS ON MOTAU AND MY VOTE COUNTS

Thursday, March 08, 2018
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Under the current constitutional dispensation the judiciary is not only constitutionally authorised, but also constitutionally obliged, to oversee exercises of public power; including the conduct of the executive. It does so through judicial review. In judicial review proceedings, courts must follow a principled and justified approach to choosing the appropriate standards on a possible ‘continuum of constitutional accountability’ against which impugned exercises of public power should be measured. This is what is demanded by the separation of- powers doctrine: courts ought not to invoke legal norms formalistically or arbitrarily when reviewing public power.

In determining where on the continuum of constitutional accountability an exercise of public power should lie, we argue that subsidiarity theory plays a valuable role – particularly in the context of administrative law, where several sources of law compete with one another for application. At one end of the continuum lie the most foundational norms of accountability, such as the rule of law, a founding value in the Constitution of the Republic of South Africa, 1996.3 These foundational norms are the more general legal norms that root and create the context in which the more detailed and indirect constitutional norms find their application.

Legality, a constitutional principle inherent in the rule of law, lies at this end of the continuum of accountability. Next on the continuum lie norms of accountability found in the Bill of Rights, such as those contained in the rights to just administrative action in s 33 of the Constitution. Section 33 is aimed at realising the rule of law in relation to exercises of public power that amount to administrative action. In the middle of the continuum lie the indirect constitutional norms aimed at achieving accountability, such as those contained in the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The statute gives effect to and fleshes out the content of the rights to just administrative action it is intended to provide the most immediate source and guidelines for judicial review of conduct that amounts to administrative action. Still further along the continuum lie even more specific empowering provisions in other statutes or in subordinate legislation. These empowering provisions are the most specific norms that set out standards of accountability demanded of a functionary in a particular situation, and that are appropriate to that specific exercise of power.

*This article was first published in Juta’s Quarterly Review of South African Law.

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