Is The Principle Of Legality Applicable In South Africa

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1. In the 1970s and 1980s there was a resurgence of interest in the Rule of Lawamongst South African liberals. It was felt that thedoctrine might be used tocompensate, at least to some extent, for the sovereignty of an unrepresentativeParliament and the absenceof a justiciable Bill of Rights in our legal system.Mathews, probablythe most prominent South African writer on the subject, rejected what he calledthe bare ‘law enforcement’ approachto the Rule ofLaw. LikeRaz, and for verymuch the same reasons, he also rejected the ‘material justiceapproach’ as expounded by the InternationalCommission ofJurists.However, his preferred version, whichhe termed the ‘protection of basic rights’ approach, was wider thanRaz’sprocedural formulation. It was in fact a reformulation ofDicey’s statement of the Rule of Law with the addition of a fewfundamentalrights such as freedom of conscience, speech, movement andassociation. Sadly, Mathews did not live to see very much of South Africa’smiraculous transit
2. A ‘Administrative Action’ in theConstitutional Court The Constitutional Court, which began functioning in 1995, was soon calledupon to decide what constituted ‘administrative action’.At once itbecame apparent that the Court saw no need for the concept to beall-encompassing; and this is understandable. Administrativelaw review had inthe bad old days been virtually the only tool for challenging governmentalaction, but South Africa had since acquireda full-scale Bill of Rights. Much ofthe work previously done by judicial review in administrative law wouldhenceforth be performedby constitutional rights such as the right toequality and the right of access tocourt. This meant that the administrativejustice right could now afford to have a narrower area of focus. Over the nineyears since thenthere have been several Constitutional Court cases involvingadministrative action.However, of moreimmediate interest, there has been a particular string of cases in which theConstitutional Court proved

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Primarily, the principle of legality is a convenient way of requiring all exercises of public power - including non-administrative action - to conform to certain accepted minimum standards. It is thus also a way of overcoming the all-or-nothing results that are dictated by the use of threshold concepts. What is a key assumption of rational consumer choice theory?

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The aforementioned principles are an indication that the South African Constitution favours the strict legality principle as both lean towards the favor reiprinciple which forms the basis of the strict legality doctrine that seeks to protect the accused against abuse of state power.

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Burgeoning principle of legality: SCA explains. “But the ‘burgeoning principle of legality’ is arguably a greater threat to PAJA than recourse to the common law because it regulates the exercise of all public power. This includes, in addition to administrative decisions covered by s 33 and PAJA, power exercised by the legislature and the

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To begin with, our courts have held that rationality is a central principle under the principle of legality which is an implicit term to the study of the rule of law. The rule of law itself has been held to be an implicit term to the Constitution of the Republic of South Africa and that all actions will only be valid if they comply with the rule of law as a constitutional value thereof

1. Author: Nkosinathi. Mzolo
2. Publish Year: 2016

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View Hoexter Cora --- The Principle of Legality In South African Administrative Law 2004 MqLawJl 8 2004 4 from LAW 2004 at University of the Free State. Hoexter, Cora - …

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LAW principles of legality are central values in conventional legal thinking from LJU 4801 at University of South Africa

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Score: 5/5 (45 votes) . The principle of legality, in criminal law, means that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege).It also embodies, that the criminal law must not be extensively interpreted to …

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study Free Essays, Law. The requirement that government be conducted according to the law (the principle of legality) is a necessary condition of the rule of law; but insistence on legality alone does not ensure that the state’s powers are consistent with values such as liberty and due process.” Bradley and Ewing Constitutional and Administrative Law (15th Edition) …

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common law principle of legality legislation is construed consistently with fundamental rights. The article finally compares the interpretive obligations placed on the courts by both the principle of legality and the current Australian human rights legislation to determine whether there is any weight to the proposition that the principle of legality is a common law bill of rights in …

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statutory interpretation - principle of legality principle of legality the principle of legality is presumption that parliament does not intend to abrogate

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The Principle of Legality in International Law and Comparative Criminal Law Kenneth S Gallant (Cambridge University Press, Cambridge, 2009, 603 pp + xxi pp) Professor Gallant‘s book is a comprehensive and scholarly examination of the principle of legality (non retroactivity of crimes and punishments) in international law and a wide range of national legal systems. His work …

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Taxation of Legal Costs in South Africa . By Rochelle Francis-Subbiah . Cape Town: Juta (2013) 1st edition . Price: R 550 (incl VAT) 442 pages (soft cover) Of all the books currently available on legal costs, this book provides clear and practical guidance on the taxation of costs. The author has gone to great lengths to assist and guide the reader in approaching and determining …

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With our strong community of legal professionals, we advance the practice of law. Through our corporate solutions, we advance compliance with the law. Finally, we partner closely with government to advance the upholding of the law. For over 85 years LexisNexis® South Africa has been at the forefront of legal content and technology. Today, we provide the most trusted …

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Constitutional Law of South Africa (2nd Edition, OS, June 2005) Chapter 36. interpretation of many, possibly all, other rights.'11 But also like dignity, the rule of law (or at least its included principle of legality12) has achieved OS 02-05, ch11-p3 a dual status in South African constitutional law, serving not just as a pervasive value informing the interpretation of various …

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The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.(b) Non-racialism and non-sexism. (c) Supremacy of the constitution and the rule of law. What are the 5 components of democracy?

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week 2 to 3 covering leality criminal law (zug 2005) tutorial questions (module legality learning objectives: explain the reason for the principle of legality

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Frequently Asked Questions

Is the principle of legality applicable in south africa?

In the light of international and South African law it was found that the principle of legality was applicable.

What is the legal system in south africa?

Law of South Africa. South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans (often termed African Customary Law, ...

Does south african administrative law still need the rule of law?

But it seems that South African administrative law does still need the Rule of Law. In what follows I hope to explain why this is so, and how our Constitutional Court’s timely recourse to a ‘principle of legality’ may be the saving of administrative law as it is applied in the courts.

What are the specific articles on specific south african legislation?

Articles on specific South African legislation 1 Constitution of South Africa – Supreme and fundamental law of South Africa 2 List of Acts of the Parliament of South Africa 3 South African Statutes and other Legislation 4 South African environmental law – The legal rules in South Africa relating to management of the environment More ...

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