STATE REGULATION OF SOUTH AFRICAN INSOLVENCY LAW – AN ADMINISTRATIVE LAW APPROACH

Juanitta Calitz Juanitta Calitz

doi:10.17159/obiter.v33i3.12147

Abstract

Although the Constitution must inform the way legislation is interpreted by the courts, there is currently no Constitutional Court decision or secondary source which deals directly with the application of the Constitution to state regulation in South African insolvency law. With regard to the role and function of the Master as well as any future state regulation in insolvency law, certainly the most significant development within the context of the Constitution is the enactment of the Promotion of Administrative Justice Act (PAJA) which gives effect to the principles envisaged in section 33 of the Constitution. The aim of this article is not to provide a detailedexposition or comprehensive overview of constitutional and administrative law, but rather to highlight the relevance and potential impact of certain administrative law aspects on the functioning and day-to-day operation of a regulatory institution in South African insolvency law.

Highlights

With the recognition of the Constitution as the supreme law of the land, the legal community in South Africa had to adapt from the old concept of parliamentary sovereignty to a new model of constitutional democracy.[12]
The Constitution must inform the way legislation is interpreted by the courts, there is currently no Constitutional Court decision or secondary source which deals directly with the application of the Constitution to state regulation in South African insolvency law
With regard to the role and function of the Master as well as any future state regulation in insolvency law, certainly the most significant development within the context of the Constitution is the enactment of the Promotion of Administrative Justice Act (PAJA) which gives effect to the principles envisaged in section 33 of the Constitution

Summary

SUMMARY

The Constitution must inform the way legislation is interpreted by the courts, there is currently no Constitutional Court decision or secondary source which deals directly with the application of the Constitution to state regulation in South African insolvency law. With regard to the role and function of the Master as well as any future state regulation in insolvency law, certainly the most significant development within the context of the Constitution is the enactment of the Promotion of Administrative Justice Act (PAJA) which gives effect to the principles envisaged in section 33 of the Constitution. The aim of this article is not to provide a detailed exposition or comprehensive overview of constitutional and administrative law, but rather to highlight the relevance and potential impact of certain administrative law aspects on the functioning and day-to-day operation of a regulatory institution in South African insolvency law

INTRODUCTION

Introduction

31 S 33 provides as follows

CONCLUSION