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3 Const. Ct. Rev. 111 (2010)
Substantive Reasoning in Administrative-Law Adjudication

handle is hein.journals/conrev3 and id is 111 raw text is: SUBSTANTIVE REASONING IN ADMINISTRATIVE-LAW ADJUDICATION Geo Quinot* 1 Introduction One of the main characteristics of constitutional transformation in South Africa is what Etienne Mureinik called the shift towards a culture of justification, in which 'every exercise of power is expected to be justified'.' He argued that within such a culture, constitutional rights 'are standards of justification - standards against which to measure the justification of the decisions challenged under them'.2 The notion of justification as central to constitutional democracy in South Africa has been developed further by a number of scholars. Alfred Cockrell was one of the first to assess the 'value-based nature of constitutional adjudication' emerging from the Constitutional Court's early jurisprudence.3 Cockrell's basic argument is that 'the explicit intrusion of constitutional values into the adjudicative process signals a transition from a formal vision of law to a substantive vision of law in South Africa' in terms of which judges are 'required to engage with substantive reasons in the form of moral and political values' as opposed to the 'formal reasons' that characterised pre-constitutional adjudication.4 Subsequently, in his * Professor, Department of Public Law, Stellenbosch University. My thanks to Megan Alberts for research assistance and to Sandra Liebenberg, Petrus Maree, Jackie Dugard and the CCR's anonymous reviewers for helpful comments on aspects of the paper. E Mureinik 'A bridge to where? Introducing the Interim Bill of Rights' (1994) 10 South African Journal on Human Rights 31 32. 2 Mureinik (n 1 above) 33. A Cockrell 'Rainbow jurisprudence' (1996) 12 South African Journal on Human Rights 1 3. 4 n 3 above, 3, drawing on PS Atiyah Et RS Summers Form and substance in Anglo- American law: A comparative study of legal reasoning, legal theory, and legal institutions (1987). 111

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