11 research outputs found
Administrative Bias in South Africa
This article reviews the interpretation of section 6(2)(a)ii of the Promotion of Administrative Justice Act which makes an administrator âbiased or reasonably suspected of biasâ a ground of judicial review. In this regard, the paper reviews the determination of administrative bias in South Africa especially highlighting the concept of institutional bias. The paper notes that inspite of the formulation of the bias ground of review the test for administrative bias is the reasonable apprehension test laid down in the case of President of South Africa v South African Rugby Football Union(2) which on close examination is not the same thing. Accordingly the paper urges an alternative interpretation that is based on the reasonable suspicion test enunciated in BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers Union and R v Roberts. Within this context, the paper constructs a model for interpreting the bias ground of review that combines the reasonable suspicion test as interpreted in BTR Industries and R v Roberts, the possibility of the waiver of administrative bias, the curative mechanism of administrative appeal as well as some level of judicial review exemplified by the jurisprudence of article 6(1) of the European Convention of Human Rights, especially in the light of the contemplation of the South African Magistrate Court as a jurisdictional route of judicial review.
 
A return to the manifest justice principle: a critical examination of the "reasonable suspicion/apprehension of bias" and "real possibility of bias" tests for judicial bias in South Africa and England
The impartiality of judges often expressed in the Latin maxim nemo iudex in propria causa interpreted to mean that no man should be a judge in his own cause together with the right of fair hearing make up the right to natural justice. This principle is recognized by a number of provisions of the Constitution of the Republic of South Africa, 1996. Section 165 (4) provides that the organs of state shall through legislative and other measures assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Furthermore, section 34 of the same Constitution provides that everyone has the right to have any dispute resolved by the application of law by a court or, where appropriate another independent and impartial tribunal or forum. Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms 1950 as incorporated in the Human Rights Act 1988, applicable in England since 2000 provides that: "In the determination of his civil rights and obligations ⊠everyone is entitled to a fair hearing ⊠by an independent and impartial tribunal established by law." The independence of courts and impartiality of judges are closely related in that they operate to sustain public confidence in the administration of justice.
This article advocates a return to the use of the manifest justice principle enshrined as the proper context for the application of the tests of "reasonable apprehension of bias" adopted by South African courts and "real possibility of bias" adopted by English courts in the consideration of allegation of apparent bias. This paper argues that the tests are different and that while the English test is a move of English courts from the real danger/likelihood
test in consonance with an overwhelming global jurisprudence the South African test is a move away from this global jurisprudence and arguably back to the real danger/likelihood test. This paper also argues that the reasonable apprehension test as applied by the minority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing) is a more acceptable interpretation of the reasonable apprehension test than the test laid down in President of the Republic of South Africa v South Africa Rugby Football Union (2) and its interpretation by the majority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing). More importantly there is an examination of cases where the tests have been applied which hopefully shows that there are considerable problems and inconsistency in their application and argue that the manifest justice principle provides the proper context for the tests to be properly applied
Administrative bias in South Africa
This article reviews the interpretation of section 6(2)(a)ii of the Promotion of Administrative
Justice Act which makes an administrator âbiased or reasonably suspected of biasâ a ground
of judicial review. In this regard, the paper reviews the determination of administrative bias in
South Africa especially highlighting the concept of institutional bias. The paper notes that
inspite of the formulation of the bias ground of review the test for administrative bias is the
reasonable apprehension test laid down in the case of President of South Africa v South
African Rugby Football Union(2) which on close examination is not the same thing.
Accordingly the paper urges an alternative interpretation that is based on the reasonable
suspicion test enunciated in BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers
Union and R v Roberts. Within this context, the paper constructs a model for interpreting the
bias ground of review that combines the reasonable suspicion test as interpreted in BTR
Industries and R v Roberts, the possibility of the waiver of administrative bias, the curative
mechanism of administrative appeal as well as some level of judicial review exemplified by
the jurisprudence of article 6(1) of the European Convention of Human Rights, especially in
the light of the contemplation of the South African Magistrate Court as a jurisdictional route of
judicial review
Implementação do direito ao desenvolvimento
Publicado em portuguĂȘs, espanhol e inglĂȘs.TĂtulo em espanhol: ImplementaciĂłn del derecho al desarollo. -- TĂtulo em inglĂȘs: Implementing the right to development."A Declaração sobre o Direito ao Desenvolvimento, aprovada pela Organização das NaçÔes Unidas em 1986, em vez de resolver a questĂŁo da existĂȘncia de um direito ao desenvolvimento, criou uma polarização entre os paĂses-membros da ONU. Os governos do Sul reivindicam seu direito ao desenvolvimento, enquanto os paĂses ricos do Norte se opĂ”em Ă existĂȘncia desse direito. Para resolver esse impasse e implementar a Declaração, o professor Arjun Sengupta, Especialista Independente para o Direito ao Desenvolvimento da ONU, foi incumbido de encontrar uma forma de operacionalizar o relacionamento entre paĂses desenvolvidos e paĂses em desenvolvimento. Este artigo faz uma anĂĄlise comparativa entre o Pacto de Desenvolvimento proposto por Sengupta e o Acordo de Parceria de Cotonou, estabelecido entre a UniĂŁo EuropĂ©ia e paĂses da Ăfrica e do pacĂfico. Mostra como, embora ambos compartilhem alguns aspectos, tais como igualdade, nĂŁo-discriminação e participação, essa convergĂȘncia termina quando se trata do princĂpio de responsabilização.