The rights of the state, and the state of rights in State Information Technology Agency Soc Limited v Gijima Holdings (Pty) Limited

Abstract

In Gijima, the Constitutional Court held that organs of state cannot review their own administrative decisions by relying on either the right to just administrative action, or the Promotion of Administrative Justice Act (PAJA) This article explores the reasoning behind this finding, suggesting it is sourced in the Court's understanding of the application of the rights in the Bill of Rights, rather than in a misconstrual of the Constitution's standing provisions, or an interpretation of s 33 and PAJA It then considers the Court's substantive claims about the relationship between the state and private persons, and the nature of the state as a prospective rights-bearer It concludes by suggesting that thinking of the state as a collection of 'processes', rather than as a discrete entity, allows for a more flexible understanding of the application of rights This flexibility opens space for the state to rely on constitutional rights, even against itself