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حقوق::
تحلیل سیاست های عمومی (تحلیل نظم عمومی)
Below, I examine the following three issues relating to the public policy analysis which, in my view, exacerbate its already uncertain nature:
2. the failure to characterise properly the roles of the various considerations that shape the outcome of any public policy analysis - more specifically, the failure to define properly the distinctive role of constitutional values in the public policy analysis, relative to those policy considerations which have traditionally been deemed to be relevant to the analysis; and
As touched on above, the second issue that I deal with in this paper concerns the courts' failure to define the role of constitutional values in the public policy analysis.
This is well illustrated in Barkhuizen, where the court fails to go beyond the high-level rhetoric which marks the case law on public policy since the advent of the Constitution.18 Ngcobo J, at various stages of his judgment, repeats the now widely accepted fact that constitutional values are of crucial importance to the public policy analysis.
Traditionally, the principal consideration in the public policy analysis is that of pacta sunt servanda, which our courts have positioned as the 'cornerstone of our law of contract'.28 Whilst some may refer to this 'grand narrative'29 of contractual freedom and enforcement of contracts in derisive terms, it is nonetheless the starting point of any public policy analysis.30 The importance of pacta sunt servanda to the analysis is apparent from even a cursory examination of case law.
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