Judicial review of administrative action
Introduction
Both judicial review and administrative appeals allow for the reconsideration of administrative decisions by a
higher authority. Appeals specifically challenge the merits of a particular decision. The person or body to
whom the appeal is made steps into the shoes of the original decision-maker and decides the matter anew.
Judicial review by the courts on the other hand focuses on the way in which the decision was reached, and
not on the correctness of the decision itself. In theory, review tests the legality and not the merits of the
decision. Judicial review is a form of external safeguard against maladministration, whereas administrative
appeals constitute an internal or domestic check. The approach is in line with the separation of powers, a
doctrine that disapproves of courts of law exercising the political functions of the executive authority.
The types of administrative appeal bodies in South Africa vary considerably and differ markedly in their
independence from the executive. They range from officials to ordinary courts of law with several
possibilities in between. An example of an administrative appeal is that which lies to the Firearms Appeal
Board in terms of the Firearms Control Act 60 of 2000 against refusals of applications for firearm licences by
the South African Police Service. Some others are appeals to the Minster in charge of a particular
department, councils created by statutes such as professional bodies, licensing appeal boards and special
courts such as the Competition Appeal Court and the Tax Courts.
Administrative tribunals
Administrative tribunals straddle a wide spectrum in their form, characteristics and functions. As the
Constitutional Court held in Sidumo, at one end they implement or give effect to policy or to legislation. At
the other, some tribunals resemble courts of law. The old Industrial Court, for example, established in terms
of the Labour Relations Act 28 of 1956, although performing functions similar to that of a court of law, was
regarded as administrative in nature:
“An administrative body, although operating as such, may nevertheless in the discharge of its duties
function as if it were a court of law performing what may be described as judicial functions, without negating
its identity as an administrative body and becoming a court of law.”
The Amnesty Committee, established in terms of the Promotion of National Unity and Reconciliation Act 34
of 1995, was empowered to conduct hearings in relation to applications for amnesty. Its proceedings were
similar to those of a court of law but it was considered to be an administrative body.
Administrative appeal, review and separation of powers
Appeal and review are both ways of reconsidering a decision carried out by a higher authority. The function
of appeal, including administrative appeal, is to determine whether the decision is correct on the merits that
is, on the facts or the law. The purpose of review on the other hand is to determine whether the decision
was arrived at in the correct manner. The first is concerned with the merits whereas the second is
concerned with the procedure. This traditional distinction between the merits and the procedure is not
absolute. The distinction is sometimes blurred or the two may overlap. Where a challenge to the decision is
based on unreasonableness, it is frequently not possible to separate the merits from the procedure.
The courts continue to apply the distinction nevertheless. The distinction is to some extent based on the
doctrine of separation of powers. This entails that a court should not interfere with the exercise of powers by
the executive. The determination of the merits of the matter according to this approach should be left to the
executive. The court may only determine whether the decision was arrived at in accordance with a correct
procedure.
There are different types of review in South African law. Some of the ones relevant to this module are
judicial review in the constitutional sense, judicial review in the administrative law sense and special
statutory review. Constitutional review refers to the power of the court to declare any State conduct
unconstitutional or in breach of the Bill of Rights. Administrative law review refers to the inherent power of
the High Court to scrutinise administrative decisions or rules. Section 33 of the Constitution and PAJA
regulates such review. Where PAJA is not applicable, such review may be governed by other principles of
the Constitution or by common law. Special statutory review refers to a power conferred on a Court in terms
of a specific statute. In such a case the terms of the review will be governed by the specific statute. This is
the case, for example, when decisions of CCMA commissioners are reviewed by the Labour Court in terms
of the Labour Relations Act.
There are, according to Hoexter, five different pathways to administrative law review in the constitutional
era, namely PAJA, section 33, special statutory review, the principle of legality and the common law. The
question arises whether a litigant can treat these various pathways as free alternatives, that is whether the
litigant may pick and choose between them at will. The issue arose in Minister of Health v New Clicks South
Africa (Pty) Ltd 2006 (2) SA 311 (CC).This well-known case related to a review of controversial regulations
made by the Minister of Health relating to the pricing of medicines. Chief Justice Chaskalson in the
Constitutional Court confirmed that PAJA was a codification of the rights in section 33 and that a litigant
could not avoid the provisions of PAJA by going behind it and seeking to rely on section 33(1) of the
Constitution or the common law (legality).
The doctrine of separation of powers requires the courts not to stray into terrains reserved for the legislature
and the executive. The issue relates to the amount of freedom the executive ought to enjoy and the degree
of latitude that the decisions of a democratic legislature ought to be given without interference by the courts.
Since the advent of the 1996 Constitution, all exercise of public power is to some extent justiciable under
the Constitution.
As far as the constitutional competence of judges is concerned, it has been said that when judging the
administration, it is not for the courts to make their own evaluation of the public good or to substitute their
personal assessments of the social and economic advantage of a particular decision. In terms of this
approach one should not expect judges to make decisions such as whether a country should join a common
currency, or to set a certain level of taxation, these being matters of policy and the preserve of other
branches of government. This would include such questions as to whether a local authority‟s expenditure
was excessive.
Further the adjudicative process employed by a court is not suited to decide polycentric issues that are
questions that cannot be settled in isolation from other issues that are not before the court or questions with
multiple repercussions. In Du Plessis v De Klerk 1996 (3) SA 850 (CC) the Constitutional Court held that the
judicial function does not lend itself to factual enquiries such as cost benefit analyses, political
compromises, investigations of administrative/enforcement capacities, implementation strategies and
budgetary priority decisions. In Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 71 (CC) the
Constitutional Court held that courts are ill suited to adjudicate upon issues that could have multiple social
and economic consequences for the community. The Constitution contemplates a restrained and focused
rule for the courts, namely, to require the state to take measures to meet its constitutional obligations and to
subject the reasonableness of these measures to evaluation.
In this regard Chief Justice Chaskalson in the New Clicks case did not agree with the suggestion that a
court should refrain from examining the lawfulness of the dispensing fees simply because it involved
economic and political considerations. The court held that the exercise of all public power is subject to
constitutional control and that it is the duty of the courts if called upon to do so to determine whether or not
the power has been exercised consistently with the requirements of the Constitution and the law. In Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) Justice O‟Regan pointed out
that the doctrine of deference which requires a court to treat administrative decisions with respect, does not
suggest servility on the part of the court but simply the recognition of the proper role of the executive within
the Constitutional context. In this regard, the respect does not mean that courts will simply rubberstamp an
unreasonable decision due to the complexity of the decision or the identity of the decision maker.
Activity
The expertise in a specialised area on the part of an administrator is frequently presented as a justification
for the admonition that a court should exercise restraint in interfering with administrative decisions.
However, the expertise of administrators must not be overestimated. Read the cases of Lazarides v The
Chairman of the Firearms Appeal Board 2005 JDR 0584 (T), Lazarides v The Chairman of the
Firearms Appeal Board Case no 14963/04 TPD and Black v Minister of Safety and Security Case no
38397/2005 TPD for an illustration of the principle of deference and an examination by a court of the
reasoning adopted by an administrator.
The most common way of controlling administrative power is through “judicial review”. Other methods
include reliance on administrative or political processes, independent and impartial institutions such as an
ombudsman (chapter 9 institutions) and allowing for public participation and access to government
information.
Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative
action. A court or tribunal has the power, in terms of section 6 of PAJA, to judicially review an administrative
action if:
a) the administrator who took it –
i. was not authorised to do so by the empowering provision;
ii. acted under a delegation of power which was not authorised by the empowering provision; or
iii. was biased or reasonably suspected of bias;
b) a mandatory and material procedure or condition prescribed by an empowering provision was not
complied with;
c) the action was procedurally unfair;
d) the action was materially influenced by an error of law;
e) the action was taken –
i. for a reason not authorised by the empowering provision;
ii. for an ulterior purpose or motive;
iii. because irrelevant considerations were taken into account or relevant considerations were not
considered;
iv. because of the unauthorised or unwarranted dictates of another person or body;
v. in bad faith; or
vi. arbitrarily or capriciously;
f) the action itself –
i. contravenes a law or is not authorised by the empowering provision; or
ii. is not rationally connected to
aa. the purpose for which it was taken;
bb. the purpose of the empowering provision;
cc. the information before the administrator; or
dd. the reasons given for it by the administrator;
g) the action concerned consists of a failure to take a decision;
h) the exercise of the power or the performance of the function authorised by the
empowering provision, in pursuance of which the administrative action was
purportedly taken, is so unreasonable that no reasonable person could have so
exercised the power or performed the function; or
i) the action is otherwise unconstitutional or unlawful.
In terms of section 6(3):
“If any person relies on the ground ore review referred to in subsection (2)(g), he or she may in respect
of a failure to take a decision, where –
(a) (i) an administrator has a duty to take a decision;
(ii) there is no law that prescribes a period within which the administrator is required to take that
decision; and
(iii) the administrator has failed to take that decision,
institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the
ground that there has been unreasonable delay in taking the decision; or
(b) (i) an administrator has a duty to take a decision;
(ii) a law prescribes a period within which the administrator is required to take that decision; and
(iii) the administrator has failed to take that decision before the expiration of that period,
institute proceedings in a court or tribunal for judicial review of the failure to take the decision within that
period on the ground that the administrator has a duty to take the decision notwithstanding the
expiration of that period.”
In Bato Star, the Constitutional Court held that the provisions of section 6 divulge a clear purpose to codify
the grounds of judicial review of administrative action as defined in PAJA. The cause of action for the
judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the
past, and the authority of PAJA to ground such causes of action rests squarely on the Constitution. PAJA is
a codification of the common law grounds of review although it is apparent that it is not regarded as the
exclusive legislative basis of review.
Self-Assessment 1: Is the judicial review of administrative action still grounded in the common law? Discuss, with
reference to the judgment of the Constitutional Court in Bato Star.
Self-Assessment 2:
The residents of the city of East London have been experiencing long periods of time without water. As a result of this
situation, an NGO called the Water Justice Project embarks upon awareness programmes advising that the government
must provide minimal litres of water daily as the right of access to water is a basic human right. Some residents
complain further that the decision to disconnect the water supply has come directly from the Premier‟s Office which
office is authorized by legislation to deal with water and sanitation. When questioned, the Premier‟s Office states that
the Deputy Premier‟s Office was mandated to handle the water “situation.” Thus, a mandate on water supply was given
to the Deputy Premier‟s Office. The Water Justice Project comes to you seeking legal advice on the disconnected water
supply to the residents. Advise the WJP fully. In making use of the FIRAC approach, you are expected to provide a legal
opinion that includes reference to legislation, statutes, and case law. You are also expected to address relevant
provisions of the Constitution of the Republic of South Africa, if any. Also, any reference to sections of law must be
supported with an explanation of the relevant section. You are not expected to state the relevant sections verbatim.
Self-Assessment 3:
For a few years, the issue of candidate attorneys and pupil‟s remuneration has caused much confusion to the legal
profession. Candidate legal practitioners have expressed concern over the work they undertake. Candidate legal
practitioners have expressed their concern repeatedly for the past decade. The matter was brought to the attention of
the Legal Practice Council, who in turn, advised of the need to evaluate and assess candidate legal practitioner‟s
remuneration. The Legal Practice Council sought the assistance of the Minister of Justice. The Minister of Justice
appointed a Committee to address and make recommendations on candidate attorneys remuneration issues. The
Committee established a Commission to Investigate Legal Practitioners Remuneration. The Commission found that
there has been a grave injustice done to the candidate legal practitioners. The Commission‟s findings were as follows:
a. Candidate legal practitioners undertake work at a junior level to advocates and attorneys during their
learning period
b. The work undertaken is valuable.
c. The remuneration for candidate legal practitioners must be set at a minimum of R 8000,00 (eight
thousand Rand) per month. The Legal Practice Council is concerned and comes to you seeking legal
advice
2.1 The LPC states that the Minister does not have the authority to form or appoint a Commission. Advise the LPC on
the Ministerial powers. (You are expected to make use of the class notes, lectures and Hoexter as your primary sources)
10marks
2.2 The LPC also states that the findings made by the Commission are unreasonable and unjustifiable because the
Commission undertook their work on an administrative basis. They ask your advice on lawfulness of the Minister‟s
actions. (You are expected to make use of the class notes, Hoexter and the PAJA as your primary source) 10 marks
2.3 The LPC requests that you explain the common law position of administrative delegation of power. (You are
expected to make use of your class notes and Hoexter as your primary sources) 5 marks
Self-Assessment 4:
The South African Social Security Agency (SASSA) must administer social assistance in terms of the Social Assistance
Act 13 of 2004. It is legislation that seeks to give effect to the right of access to social security in terms of Section
27(1)(c) and (2) of the Constitution. SASSA may enter into an agreement with any person “to ensure effective payments
to beneficiaries” in terms of Section 4(2)(a) of the South African Social Security Agency Act 9 of 2004. In terms of the
agreement between SASSA and Cash Paymaster Services (Pty.) Ltd. (CPS), the latter administers the payment of
social grants on SASSA‟s behalf. Following a tender that was awarded to CPS, SASSA and CPS concluded a contract
in terms of which CPS had to provide services relating to the payment of social grants on behalf of SASSA for a fee. The
duration of the contract was five years. In light of the above facts and description of the role of CPS, write a
memorandum in which you critically discuss why actions of organisations in positions such as that of CPS are
considered „public functions‟ for purposes of the definition of „administrative action‟ in the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). In your discussion, refer to relevant factors considered by courts when determining such a
question as well as to the relevant case law
Readings: Hoexter 107 – 170; K McLean Constitutional deference, courts and socio-economic rights in
South Africa (2009) Pretoria: PULP 23 – 88; D Davis „To defer and when? Administrative law and
constitutional democracy‟ 2006 Acta Juridica 23; D Dyzenhaus “The Politics of Judicial Deference: Judicial
Review and Democracy” in M Taggart (ed) The Province of Administrative Law (1997) 279; TRS Allan
“Common Law Reason and the Limits of Judicial Deference” in D Dyzenhaus (ed) The Unity of Public Law
(2004) 289; J Jowell “Of Vires and Vacuums: The Constitutional Context of Judicial Review” 1999 Public Law
428; DJ Mullan “Deference: Is it Useful Outside Canada?” 2006 Acta Juridica 24; H Corder “Without
Deference, with Respect: A Response to Justice O‟Regan” (2004) 121 SALJ 438; D Brand 'Judicial
deference and democracy in socio-economic rights cases in South Africa' (2011) 22 Stellenbosch Law
Review 614; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC).
Summary of problem-type questions on judicial review
Define judicial review
Make sure you discuss JR under three sources:
JR UNDER THE CONSTITUTION
Sec 33(1)
Lawful ----- Elements: ♥Authority - Fedsure Life; New Clicks;Affordable Med Trust;Simelane
♥Jurisdiction -
♥Abuse of discretion – Minister of Correction service v Kwakwa; Kyalami‟s
Ridge; Rangani v Superintendent; Bullock‟s case
Reasonable ----- Elements: ♥Rationality –
♥Proportionality –
♥Unreasonableness –
Procedurally fair ---- Elements: ♥Audi altarem patem – Sarfu; Board of tarrifs v Brenco;Metro
Project CC v Klerksdorp Municiaplity; Heatherdale farms v
Deputy Minister of Agriculture;
♥Nemo iudex in sua causa – Earthlife‟s case;Dumbu v
Commissioner of Prison
♥Bias or suspected bias –
Sec 8 Application of BoR
Sec 38 Declaration/Enforcement of rights
Sec 168 (3) (a&b) – JR on appeals
JR UNDER COMMON LAW
Ultra Vires – Adm. Action outside the empowering provisions
The rule of law – ♥The principle of legality: Elements: Lawfulness, rationality, good faith and
consultative fairness; (procedural fairness NOT included in legality), the
component of giving reasons is receiving judicial support, but it has not been
fully incorporated into constitutional principle of legality.
Doctrine of natural justice
JR UNDER PAJA – SECTION 6
Sec 6 (2) of PAJA – Sasol Oil (pty) Ltd v Metcalfe
o not authorised by empowering provision
o under delegated authority but not authorised by empowering provision
o bias or suspected bias – BTR‟s case; Hamata‟s case;
o Procedure not complied with
o Error of law – Hira‟s case‟ Bosyen‟s case;
o Mistake of fact – Popcru v Financial service;
o Abuse of discretion –
o Bad of faith –
o irrational –
o unreasonable –
o failure to act – Vumanzonke v MEC
