Subsidiarity in the context of administrative law

Abstract

In this dissertation I indicate the angle in which the principle of subsidiarity has developed the administrative law and the manner in which the Constitutional Court has in the State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd (SITA) able to lay down the important or fundamental basis of the principle of subsidiarity in the context of administrative law. In chapter 1, I deal with the origin of the principle of subsidiarity. I argue that this principle was first introduced in church by Pope Pius XI. In that time the principle did not have a legal meaning as it was only applied or taught in church. I further deal with the general meaning of the principle of subsidiarity and make reference to Melanie Murcott definition, in which she state that in South African law, subsidiarity means the notion that adjudication of substantive issues should be determined with reference to more particular indirect constitutional norms applicable rather than more general direct constitutional norms. In chapter 2, I deal with A J van der Walt two principles of subsidiarity with their provisos and how these principles with their provisos are applied. This is done with reference to case law which relate to the two principles and their provisos. I argue that the two principles and their provisos do not provide clarity on the question of which source of law apply when a state organ seek to review its own decision. In chapter 3, I answer the question which the two principles of subsidiarity and provisos have failed to answer being which source of law apply when a state organ seek to undo its own decision. I do so by first dealing with cases which lost the opportunity to answer the question, secondly analyse the SITA judgement in the Supreme Court of Appeal and lastly deal with the Constitutional Court Judgement, which at least provided a clarity on the question of source of when a state organ seek to review its own decision. In chapter 4, I deal with the threshold question and argue that it is important for litigants to outline their cause of action from the beginning of the case to enable the court to properly determine which source of law applies to particular facts or circumstances. In doing so I refer to the interpretative threshold question. The interpretative threshold question in SITA answered the threshold question by asking what is the purpose of the fundamental rights and who did they seek to protect? In chapter 5 I conclude by indicating that the failure by the courts or the avoidance by the courts in some cases to deal with the question which source of law applies when a state organ seek to review its own decision has led to wrong precedents of courts electing to avoid the question. I argue that it is the Constitutional Court judgement in SITA that has paved a new approach to the question of source of law in the administrative context of subsidiarity.