| Abstract: | In one area of South Africa's constitutional system, that of subordinate legislation, reform has been only partial. This is surprising as many of the most notorious apartheid laws were enacted by the executive rather than by the legislature. There are three important features to this issue: the breadth of the legislative delegation, the absence of any procedure prior to enactment such as consultation or notification, and the oppressiveness of the resulting laws. Two of these features have received attention. The Constitution now controls the extent to which the legislature can delegate its powers, and the substance of subordinate legislation must now satisfy the normative standards set out in the Bill of Rights. But the third feature, the process that precedes the promulgation of subordinate legislation, has been neglected. This article proposes that Parliament fill this gap in South Africa's administrative law by codifying a range of pre-adoption procedures for subordinate legislation. The impetus for the proposal is s 33(3) of the Constitution, which invites Parliament to give legislative effect to the rights that comprise just administrative action in s 33(1) and (2) - including a right to procedural fairness. Notes, ref. |
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