Browsing by Author "Henrico, Radley"

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    The functus officio doctrine and invalid administrative acts in South African administrative law: the demand for a more flexible approach
    (Nelson R Mandela School of Law, 2020) Henrico, Radley
    In South African administrative law, the issue of invalid administrative action in relation to the application of the doctrine of functus officio has brooked a fair amount of debate. Whilst the courts have attempted to articulate an appropriate approach to be adopted regarding the variation or revocation of invalid administrative action, the issue remains one that is often fraught with a degree of uncertainty. A decision once made by an administrator, which is final, cannot be revisited in the absence of statutory authority.
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    Legislative administrative action and the limited extent of public participation
    (Juta Law, 2020) Henrico, Radley
    The preamble of our constitution acknowledges that government is based on the will of the people. Section 1(d) of the constitution states that the Republic of South Africa is one sovereign, democratic state founded on the value of universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. Whilst the constitution recognises a representative, participatory and direct democracy, the focus of this paper is on the participatory dimension of democracy as it relates to legislative administrative actions. Participatory democracy is given due recognition in our constitution through public involvement in parliament’s law-making process. Parliament is obliged to take adequate steps to ensure public involvement as a pre-condition to the enactment of its laws. This requirement is necessary if we are to maintain (and sustain) the democratic ethos underpinning our constitution. The legislative capacity of parliament has been extended by permitting the executive to make laws in accordance with statutory provisions or powers entrusted to them either in terms of specific acts or the constitution. Laws enacted by members of the executive (subordinate or delegated legislation) are referred to as executive rule-making or legislative administrative action. Such actions, emanating from the executive arm of government, take the form of regulations, proclamations and ministerial rules or notices.
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    The rule of law in Indian administrative law versus the principle of legality in south African administrative law: Some observations
    (ASSAF, 2021) Henrico, Radley
    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.
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    Unfair discrimination within the South African Department of Correctional services against inmates with ancestral calling (Ubizo)
    (University of the Western Cape, 2022) Zono, Nolusindiso Elizabeth; Henrico, Radley
    The dissertation examines unfair discrimination within the South African Department of Correctional Services against inmates with ancestral calling (ubizo). Inmates (like everyone) have fundamental rights as enshrined by the Bill of Right as contained in the Constitution of the Republic of South Africa, 1996. However, the aforesaid rights can be limited, to the extent that it is reasonable and justified in an open and democratic society based on human dignity, equality and freedom. Consequently, fundamental rights of any inmate – by virtue of their incarceration in a correctional facility - are automatically limited on grounds of it being reasonable and justifiable. Freedom of movement is just one example.