ARTICLE
13 March 2023

Mandamus And Accountability In South African Law

SA
Schoenherr Attorneys at Law

Contributor

We are a full-service law firm with a footprint in Central and Eastern Europe providing local and international companies stellar advice. As the go-to legal advisor for complex commercial matters in the region, Schoenherr aims to use its proximity to industry leaders, in developing practical solutions for future challenges. We keep a close eye on trends and developments, which enables us to provide high quality legal advice that is straight to the point.
Accountability is of utmost importance in South African law as it serves as a cornerstone of good governance and the protection of citizens' rights and freedoms.
South Africa Litigation, Mediation & Arbitration
To print this article, all you need is to be registered or login on Mondaq.com.

Accountability is of utmost importance in South African law as it serves as a cornerstone of good governance and the protection of citizens' rights and freedoms. The Constitution of the Republic of South Africa, 1996, recognizes the importance of accountability. It sets out various provisions aimed at ensuring that public authorities and corporations are held accountable for their actions or lack thereof. Accountability further refers to the obligation of individuals, organizations, and institutions to be answerable for their actions and decisions. However, this begs the question of what steps the people can take to enforce these rights. The mandamus is one remedy that has been available since its introduction through the common law and serves as a legal remedy to ensure accountability through the courts.

Definition Of A Mandamus

Judicial decisions have helped to define this specific legal remedy in South African law. A mandamus is a court order that compels a public authority or corporation to perform a public or statutory duty. The remedy derives from the common law and has been used successfully in South Africa since 1864. The requirements for granting a mandamus order are that it must be directed at a person or authority under a legal duty to perform a public or statutory duty and that no other legal remedy could achieve the desired outcome.

The Application of the Mandamus in Modern South Africa

Mandamus and accountability are intertwined in South African law, as the former is often used as a means of enforcing the latter. In cases where a government body, official, or corporation fails to perform its duties, a court may issue a mandamus order (writ) directing the entity to take specific actions. The order can be a powerful tool to hold these entities accountable and ensure they fulfil their obligations to the public. Although, one must keep in mind that such a remedy is only sometimes available as it has been regulated through legislation that was developed specifically to provide remedies that would achieve the same outcome as a mandamus order. The Promotion of Administrative Justice Act ("PAJA") is an example. In terms of PAJA, should an administrative action be taken, there are specific remedies available to have such a decision either reconsidered through an appeal process or reviewed in terms of a Rule 53 Application in terms of the Superior Courts Act.

In Thusi v Minister of Home Affairs and Another, the court held that like the mandamus Section 6(2)(g) of PAJA allows an aggrieved party to invoke a mandatory interdict where the party can show that an administrator failed to take a decision that it was the legal obligation to take. The use of the mandamus is thereby not available in circumstances where an alternative remedy is available, as in the above instance.

Conclusion

The mandamus is a powerful legal remedy available to South Africa to ensure that institutions are held accountable. The remedy, although still available, has a decreased applicability due to the introduction of regulation through the promulgation of new legislation. Although, with the increase in corruption and lack of service delivery in South Africa in recent times, the remedy might serve as a proverbial silver bullet in the fight for accountability. It is always essential to consult an attorney before seeking such a remedy due to the stringent requirement for its applicability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More