Abstract
This case will reflect on some of the decisions made by senior civil servants in the discharge of important statutory powers, and will argue that improper decisions retard our growth as a democracy. The Kirkland case demonstrates that the failure to act in a just administrative manner will also hinder the progressive realization of socio-economic rights, such as the right of access to health care. We appear to be faring poorly on two of the three factors on Mureinik’s watch list and this must give cause for concern.
Highlights
It became apparent relatively soon after the advent of the democratic constitutional dispensation in South Africa that socio-economic rights are interrelated and interdependent
The interconnectedness between policy, law and effective implementation was emphasized in Government of the Republic of South Africa v Grootboom (2001 (1) SA 46 (CC))
The test is whether the goal the State is meant to attain – such as the realization of access to health care – can reasonably be achieved through the legislative and implementation framework chosen by the State (Government of the Republic of South Africa v Grootboom supra par 42)
Summary
It became apparent relatively soon after the advent of the democratic constitutional dispensation in South Africa that socio-economic rights are interrelated and interdependent. The Supreme Court of Appeal (SCA) confirmed that both the decision to institute criminal proceedings and the decision to terminate criminal proceedings were not reviewable under PAJA, but that these decisions could be reviewed under the principle of legality and the rule of law Those exercising public power must act in accordance with the Constitution, must act rationally, and must act in accordance with the powers conferred upon them by the enabling legislation (Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) par 49). The NPA cannot continue to make woeful decisions of this nature and lose cases on review as it did in this instance – without fundamentally undermining its constitutional importance and integrity
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