Administrative laws need to be amended with the Constitution, and not rationality, as a guiding principle. Rationality is best described as how judges make decisions and how those decisions are weighed and reasoned about within legal discourse. This was Professor Thuli Madonsela's argument in her inaugural lecture at Stellenbosch University on Monday night.
Madonsela spoke of her own experiences as the public protector in trying to get these laws reviewed with their real-life consequences for ordinary people at the top of the agenda. In this lecture, she gave some ideas on how to practically do this.
After 28 months and three applications, Naomi Ngwenya was informed she did not qualify for funding from the National Empowerment Fund (NEF) for her small business. She was told that according to the broad-based Black Economic Empowerment Act she is not black and could therefore never get funding from them.
She was not born in South Africa, was not a South African descendent and had not received citizenship by naturalisation before 1994. She was from Zimbabwe and was naturalised to South Africa in 1999.
This criterion should have been noticed during the first application, says Professor Thuli Madonsela, who was the public protector at...