The Importance of Process and Substance
Keywords:process and substance, procedural fairness, dispute resolution, public participation, reasonableness
AbstractThe Constitution of the Republic of South Africa, 1996 endeavours to reverse the legacy of apartheid. In the process, the judgments of the Constitutional Court have restored and extended many of the fundamentals of fairness and due process that had been trampled on by the apartheid state. This article highlights the important role that Justice Ngcoboâ€™s judgments have played (and continue to play) in our developing jurisprudence on procedural fairness. As it will be demonstrated, the Constitutional Court has begun to work out a home-grown account of due process that not only marks a stark break with our apartheid past, but which also highlights the contextual challenges and features of our new democratic orderâ€”and stresses the sometimesâ€”difficult balancing exercise required by our courts in protecting rights while respecting separation of powers. This article, therefore, pays tribute to Justice Ngcoboâ€™s careful thinking around due process, and his insistence through various important judgments on recognising three cardinal features of fairness, which have now come to resonate in the Constitutional Courtâ€™s jurisprudence.
Metrics Loading ...
How to Cite
Marcus, Gilbert, and Max du Plessis. 2018. “The Importance of Process and Substance”. Southern African Public Law 32 (1&2):33 pages. https://doi.org/10.25159/2522-6800/3567.
Ngcobo Special Issue