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4 Macquarie L.J. 165 (2004)
The Principle of Legality in South African Administrative Law

handle is hein.journals/macq4 and id is 169 raw text is: Macquarie Law Journal (2004) Vol 4 THE PRINCIPLE OF LEGALITY IN SOUTH AFRICAN ADMINISTRATIVE LAW CORA HOEXTER' I INTRODUCTION In the 1970s and 1980s there was a resurgence of interest in the Rule of Law amongst South African liberals. It was felt that the doctrine might be used to compensate, at least to some extent, for the sovereignty of an unrepresentative Parliament and the absence of a justiciable Bill of Rights in our legal system. Mathews,' probably the most prominent South African writer on the subject, rejected what he called the bare 'law enforcement' approach to the Rule of Law.2 Like Raz,3 and for very much the same reasons, he also rejected the 'material justice approach' as expounded by the International Commission of Jurists.4 However, his preferred version, which he termed the 'protection of basic rights' approach, was wider than Raz's procedural formulation. It was in fact a reformulation of Dicey's statement of the Rule of Law with the addition of a few fundamental rights such as freedom of conscience, speech, movement and association.5 Sadly, Mathews did not live to see very much of South Africa's miraculous transition from oppressive minority rule to constitutional democracy, a process that officially began ten years ago under the aegis of the Constitution of the Republic of South Africa Act 200 of 1993 ('interim Constitution')6 and continues today under Professor, University of the Witwatersrand, South Africa. See especially A S Mathews, 'The Rule of Law - A Reassessment' in Ellison Kahn (ed), Fiat lustitia: Essays in Memory of Oliver Deneys Schreiner (1983) 294; Anthony S Mathews, Freedom, State Security and the Rule of Law (1986) 1-30. See also John Dugard, Human Rights and the South African Legal Order (1978) ch 3. 2 Mathews, Freedom, State Security and the Rule of Law, above n 1, 1-3. 3 Joseph Raz, 'The Rule of Law and its Virtue' (1977) 93 Law Quarterly Review 195. 4 Mathews, Freedom, State Security and the Rule of Law, above n 1, 11-14. Mathews responds to the famous formulation of the International Commission of Jurists at Delhi in 1959. See also International Commission of Jurists, South Africa: Human Rights and the Rule ofLaw (1988). Mathews, Freedom, State Security and the Rule of Law, above n 1, 15-22. 6 The interim Constitution, which was deliberately temporary, was the product of constitutional negotiations that took place between the government and major parties and liberation movements from December 1991. These negotiations began at the Conference for a Democratic South Africa (CODESA) and ended in a multi-party negotiation process. The interim Constitution was adopted by the existing Parliament on 22 December 1993 and it

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