Browsing by Author "Burnell, Matthew Grant"

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    A principled approach to the computation of damages under Section 8 of the promotion of Administrative Justice Act 3 of 2000 for losses suffered as a result of the non-performance of social welfare administrators
    (2006) Burnell, Matthew Grant; Corder, Hugh
    Social Welfare Departments, particularly in the Eastern Cape, are in disarray. Welfare grant applications are taking many months to be processed and paid. Consequently, those most in need of support are bringing actions against the Department requesting that their applications be considered and where necessary paid out. Applicants have also asked for damages for the losses that they have suffered as a result of tardy administrative payments. Such actions can be brought in the law of delict. However, this paper suggests that actions for damages in the social welfare context may be better suited to administrative law because it is more far reaching than delictual damages. It is suggested, however, that the manner in which delictual damages are quantified forms the basis for administrative law damages. Constitutional and administrative law principles will expand upon these delictual foundations to fashion damages that are better suited to the public law context. An analysis of the relevant case law has crystallized certain principles that the courts have adopted. These principles can be used to formulate appropriate compensation in each contextual scenario that presents itself before the courts. It must be recognized, however, that damages or compensation is only an element of remedial actions that can be adopted by the court. Any award of damages must complement these other approaches with the ultimate goal of administrative efficiency, provision of services and fairness in the Social Welfare Department.
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    Developing and applying a constitutional framework for public participation in South Africa
    (2017) Burnell, Matthew Grant
    Online public participation platforms have resuscitated the debate globally about whether the Internet can be used to improve the reach of public participation and the quality of comments received during these processes or not. This thesis highlights that this debate is a ruse. Our focus should not be on the mode of participation adopted to engage with interested and affected parties but rather on the manner in which that mode (whether online platforms or more traditional methods) is implemented. Currently in South Africa there is not a standard set of guidelines to assist persons undertaking these modes of participation to ensure that they are adequate or acceptable. This thesis seeks to create such a framework. As all actions in South Africa must comply with the Constitution, it is the starting point for developing this baseline. The Constitution drafters introduced participatory democracy into the South African legal framework. In doing so, they intended that certain principles associated with this notion filter into the legal system. This thesis identifies these principles, drawn from the works of democratic theorists, Constitutional-era South African case law, legislation, practice and administrative process, and proposes a participatory framework ('the Constitutional Framework for Public Participation' or 'CFPP') which, if followed, will ensure that policymaking and administrative participatory processes comply with the Constitutional conception of participatory democracy. In addition, as online participation is most likely to become a prominent tool in engaging interested and affected parties, this thesis considers whether there are any principles relating specifically to online participation which should be included in the CFPP. Following an assessment of online public participation processes, additional principles have been identified but these principles apply equally to offline modes of participation as to online participation. Having incorporated these additional principles into the CFPP, they are applied to the public participation process required in terms of Environmental Impact Assessment ('EIA') to assess whether these processes are being conducted in a Constitutional manner. The findings reveal that the regulations governing the EIA public participation processes fall short of the CFPP. Although the regulations are inadequate, examples of actual EIA public participation processes are examined to determine whether, notwithstanding the inadequate regulations, the implemented public participation process meet the requirements of the CFPP. This also yields a negative outcome, highlighting that public participation processes are not being conducted in a manner required by the Constitution. This thesis suggests that the CFPP can be consulted to assist lawyers, administrators, legislatures, persons responsible for public participation processes, government and others in designing and implementing constitutionally acceptable public participation processes. It is acknowledged that the CFPP will need to be the subject of empirical investigation by subsequent researchers to assess its effectiveness in achieving this objective.
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    Principled approach to the computation of damages under section 8 of the promotion of administrative justice act 3 of 2000 for losses suffered as a result of the non-performance of social welfare administrators.
    (2006) Burnell, Matthew Grant; Corder, Hugh
    Social Welfare Departments, particularly in the Eastern Cape, are in disarray. Welfare grant applications are taking many months to be processed and paid. Consequently, those most in need of support are bringing actions against the Department requesting that their applications be considered and where necessary paid out. Applicants have also asked for damages for the losses that they have suffered as a result of tardy administrative payments. Such actions can be brought in the law of delict. However, this paper suggests that actions for damages in the social welfare context may be better suited to administrative law because it is more far reaching than delictual damages. It is suggested, however, that the manner in which delictual damages are quantified forms the basis for administrative law damages. Constitutional and administrative law principles will expand upon these delictual foundations to fashion damages that are better suited to the public law context. An analysis of the relevant case law has crystallized certain principles that the courts have adopted. These principles can be used to formulate appropriate compensation in each contextual scenario that presents itself before the courts. It must be recognized, however, that damages or compensation is only an element of remedial actions that can be adopted by the court. Any award of damages must complement these other approaches with the ultimate goal of administrative efficiency, provision of services and fairness in the Social Welfare Department.