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JOURNAL OF UWC FACULTY OF LAW | ISSN 2077-4907 | Short URL www.ldd.org.za

Beyond labels: Executive action and the duty to consult, pp 93-122

Volume: Volume 27 - 2023

Article type: Refereed article

Author/s: Nurina Ally and Melanie J Murcott

Whether executive action attracts a duty to consult has been contested judicial terrain. In this article, we aim to contribute to the development of a principled approach to requiring consultation in executive decision-making. We grapple with the distinction between procedural fairness as a requirement of just administrative action and procedural rationality as a requirement of the principle of legality. We then move beyond these labels by engaging with the values underlying the Constitution’s vision of participatory democracy. Despite contradictions in the case law, we suggest that the developing requirement of “procedural rationality” as a basis for a duty to consult offers fertile ground for advancing the values of accountability, responsiveness, and openness in executive decision-making. We therefore encourage recognition of participatory democracy as the normative framework within which the rationality of executive decision-making should be substantively assessed. Finally, we demonstrate that links between participatory democracy, a duty to consult, and executive decision-making have some grounding in existing case law, which, we argue, can be further developed.

About the author/s

Nurina Ally

Senior Lecturer, Department of Public Law, Faculty of Law, University of Cape Town. https://orcid.org/0000-0003-1587-7676

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Melanie J Murcott

Associate Professor, Department of Public Law, Faculty of Law, University of Pretoria. https://orcid.org/0000-0001-8311-2195

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