Rights, administrative discretion and Dawood

Administrative law is considered to be the manner in which the state exercises public power. As such, one of its most vital areas of focus is discretion since the limits on discretion are simultaneously the limits on the exercise of power. With the rapid expansion of the powers and functions of the state and its growing influence on peoples private lives, set against the backdrop of human rights, an examination of discretion is both necessary and inevitable. This examination occurred most prominently and authoritatively in the Constitutional Court case Dawood and Another v Minister of Home Affairs and Others v Minister of Home Affairs and Others 2000 (3) SA 936. The purpose of this article is to critique the courts approach to discretion and the limits that the court sought to impose on what it regarded as unjustifiably wide discretion. In assessing the judgment, this article seeks to articulate the concerns associated with the instruments ordinarily relied on to limit discretion, being rules and legislative specificity. While rules do limit discretion, the difficulty of constructing rules that do so effectively make the reliance on them as a means of reducing the instances of human rights violations and enhancing the rule of law questionable.