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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The justifications for judicial review
Author:Breitenbach, Andrew
Year:1992
Periodical:South African Journal on Human Rights
Volume:8
Issue:4
Pages:512-535
Language:English
Geographic term:South Africa
Subject:judgments
External link:https://doi.org/10.1080/02587203.1992.11827878
Abstract:This article does not provide a comprehensive justification for judicial review. Rather, it evaluates the South African jurisprudence to determine whether an immanent set of justificatory principles can be identified. The first section covers the vicissitudes of the doctrine of ultra vires as a conceptual rationale for judicial intervention. It outlines the historical development of the doctrine in England and South Africa and explains the debate in South Africa between the exponents of its 'narrow' and 'wide' variants. Then it assesses its cogency as an explanation of the courts' functions on review. In the second section, the reasoning of the Appellate Division in several disputes on the nature and scope of the ultra vires doctrine is considered. The emphasis falls on the judgment of Hefer JA in the case Staatspresident v UDF. In particular, his conclusion that there is no need for South African courts to justify their practice of reviewing administrative behaviour is scrutinized. The final section provides 'hard evidence' of the consequences of the neglect by the courts of the rationale of judicial review. Notes, ref.
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