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Flouting subsidiarity in COVID-19 litigation : administrative law perspective
Mini Dissertation (LLM (Constitutional and Administrative Law))--University of Pretoria 2022.
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2023
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| _version_ | 1867613565960060928 |
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| access_status_str | Open Access |
| author2 | Murcott, Melanie |
| author_browse | Murcott, Melanie |
| author_facet | Murcott, Melanie |
| collection | Thesis |
| dc_rights_str_mv | © 2022 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Mini Dissertation (LLM (Constitutional and Administrative Law))--University of Pretoria 2022. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/89596 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:38:10.802Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2023 |
| publishDateRange | 2023 |
| publishDateSort | 2023 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/89596 Flouting subsidiarity in COVID-19 litigation : administrative law perspective Murcott, Melanie mokwanast@gmail.com Hodgson, Tim Fish Mokwana, Sipho Tumishi UCTD Subsidiarity Administrative Law Legality COVID-19 litigation Flouting Mini Dissertation (LLM (Constitutional and Administrative Law))--University of Pretoria 2022. In 2020, a number of judicial review proceedings, premised on administrative law grounds, were instituted against the South African government’s response to COVID-19. These proceedings resulted in significant judgments, including One South Africa Movement v President of the Republic of South Africa, Esau v the Minister of Co-operative Governance and De Beer v the Minister of Co-Operative Governance. The application of the principle of subsidiarity in these judgments is the focus of this dissertation. The principle of subsidiarity requires that, where they are available, litigants and courts should invoke lower order norms specifically designed to address a legal problem. Resort to more general, higher order norms should only be had where more specific lower order norms are not available. The principle is particularly important in administrative law where there are various legal bases upon which to engage in judicial review of public power, including the Promotion of Administrative Justice Act 3 of 2000, the principle of legality, section 33 of the Constitution of the Republic of South Africa, 1996 and the common law. It is argued in this dissertation that in the abovementioned judgments, the courts flouted subsidiarity. The courts arguably failed to determine the proper basis for judicial review – i.e. they failed to determine whether PAJA or the principle of legality was the applicable basis for review. Importantly, it is illustrated that the courts’ failure to determine the proper basis for review resulted in the courts holding the exercise of public power to a lower standard of review and this potentially had significant consequences, including for accountability, the rule of law and separation of powers. Public Law LLM (Constitutional and Administrative Law) Unrestricted 2023-02-15T14:03:41Z 2023-02-15T14:03:41Z 2023-05 2022 Mini Dissertation * A2023 A2023 https://repository.up.ac.za/handle/2263/89596 en © 2022 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Subsidiarity Administrative Law Legality COVID-19 litigation Flouting Flouting subsidiarity in COVID-19 litigation : administrative law perspective |
| title | Flouting subsidiarity in COVID-19 litigation : administrative law perspective |
| title_full | Flouting subsidiarity in COVID-19 litigation : administrative law perspective |
| title_fullStr | Flouting subsidiarity in COVID-19 litigation : administrative law perspective |
| title_full_unstemmed | Flouting subsidiarity in COVID-19 litigation : administrative law perspective |
| title_short | Flouting subsidiarity in COVID-19 litigation : administrative law perspective |
| title_sort | flouting subsidiarity in covid 19 litigation administrative law perspective |
| topic | UCTD Subsidiarity Administrative Law Legality COVID-19 litigation Flouting |
| url | https://repository.up.ac.za/handle/2263/89596 |