The Promotion of Administrative Justice Act from a German Perspective

ABSTRACT

The Promotion of Administrative Justice Act 3 of 2000 is a milestone in the development of administrative law in South Africa. For the first time the general principles of administrative procedure and judicial review have been codified. One of the great challenges of the drafting process was to come up with legislation that ensures just administrative action and its judicial scrutiny but, on the other hand, does not hamper efficient public administration. Whether Parliament was ultimately successful in achieving this balance is discussed. South African legal academics have expressed concerns about whether the definition of administrative action in the Act is too narrow when read against the minimum requirements of the right to administrative justice in s 33 of the 1996 Constitution. The inclusion of the German concept of ‘direct external legal effect’ to define—and to limit—the scope of administrative action has, in particular, been criticised. The main purpose of this article is to provide an insight into how the German courts have interpreted this and other relevant concepts, and thus to contribute to an informed interpretation of the Act. The article goes further in identifying those areas of administrative law that the Act has not codified, but which are important features of German law in balancing the right to judicial review with the need for efficient public administration.