Judgment No. CCZ 3/2016 6
Const. Application No. CCZ 123/13
administrative conduct. Subsection (3) of s 68 of the Constitution provides that the Act of
Parliament must include remedies for effective judicial review of administrative conduct
complained of to ensure that it meets the standards set out in subs (1). The remedy would
include the right of access to a court with power to review administrative conduct.
Once an Act of Parliament which gives effect to all the rights to just
administrative conduct set out in subss (1), (2) and (3) is enacted, s 68 of the Constitution takes
a back seat.
The question whether any administrative conduct meets the requirements of
administrative justice must be determined in accordance with the provisions of the
Administrative Justice Act. Unless there is no Administrative Justice Act or the complaint is that
the provisions of the Act do not give effect to the fundamental rights guaranteed under s 68(1) of
the Constitution in the terms required by subs (3), s 68 cannot found a complaint of its violation
in terms of s 85 of the Constitution.
Where there is an Administrative Justice Act which gives full effect to all the
substantive and procedural requirements for effective protection of the fundamental rights
guaranteed under s 68, the Act must surely govern the process for the determination of the
question whether a specific administrative conduct is in accordance with the standards of
administrative justice. There cannot be an allegation in terms of s 85(1) of the Constitution of
administrative conduct violating the fundamental right to administrative justice enshrined in s 68
of the Constitution when there is an Act of Parliament which validly gives full effect to the
requirements for the protection of the fundamental right against the provision of which the
legality of the administrative conduct must be tested.