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INTRODUCTION TO THE SECOND SEMESTER

Case reading checklist:

When reading cases (a vital part of the second semester), consider each of the following issues (once you’ve

understood the facts):

1. What is the nature of the power at issue?

2. Is it administrative action?

3. Is it reviewable, and if so according to which standard or grounds?

4. How does the court approach its review authority (considering the separation of powers, deference,

etc.)?

5. Reasoning, i.e. why does the court set aside or uphold the exercise of power?

6. Sundry issues like jurisdiction, standing, procedure.

7. Minority judgments.

Whenever one considers the grounds of review of administrative action, one must look at each of the

following sources of law: firstly, s 33 of the Constitution, which lists very briefly the requirements for just

administrative action; secondly, s 6(2) of PAJA, which gives the much more detailed statutory encapsulation of

each ground of review; and, thirdly, the case law, which may be pre-constitutional, post-constitutional but pre-

PAJA, or post-PAJA.

The Constitution s 33(1) states that:

Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

Our main task in the second semester of the course is to look at these three grounds of review—lawfulness,

reasonableness, and procedural fairness—in detail. Clearly the Constitution does not give much guidance on

their content, so PAJA becomes very important. PAJA s 6(2) enables the constitutional right, is largely a

codification of pre-existing common-law grounds of review, and is interpreted in case law, and therefore it

must be read in harmony with the Constitution and the case law.

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LAWFULNESS

1 Introduction

We said above that PAJA is the most important source of law when looking at the grounds of review.

Unfortunately PAJA is really shit. But neither of its chief inadequacies—its prolix definition of administrative

action and its utterly unhelpful reasonableness test—is central to the lawfulness ground. In fact, PAJA is quite

useful on the issue of lawfulness.

There are three issues we need to consider in discussing lawfulness, three ways in which an exercise of public

power can be lawful (or unlawful). These are:

Authority: There must be some law which authorizes the exercise of public power by that person.

Jurisdiction: Assuming there is an authorizing law, the official exercising such power must have

jurisdiction in terms of that law to exercise it in the manner and circumstances that he did.

Abuse of discretion: Assuming there was an authorizing law and the official had jurisdiction, that

official must not have abused his discretion in exercising the power.

There is in truth some overlap between these, but it is useful to conceive of them distinctly. In what follows we

discuss each of these in more detail.

2 Authority

(a) The fundamental principle of legality

It is a fundamental principle of the rule of law that every exercise of public power must be lawfully

authorized.1 In other words, there must be some existing law which authorizes such exercise of power. This

was very clearly stated in the early constitutional era case of Fedsure Life Assurance Ltd v Greater

Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) at para 58:

It seems central to the conception of our constitutional order that the legislature and executive in every

sphere are constrained by the principle that they may exercise no power and perform no function beyond

that conferred upon them by law.

The logical concomitant of this is that an action performed without lawful authority is illegal or ultra vires.

(b) Two sub-requirements

There are two sub-requirements to the authority requirement:

1. The exercise of public power must be one which the law authorizes. This means both that there is a

law conferring power and that that law is not overstepped or contravened when the power is

exercised. This ground of review is codified in s 6(2)(f)(i) of PAJA.

2. The particular official exercising that power must be authorized to do so by that law. This ground of

review is codified in s 6(2)(a)(i) of PAJA.

1 In fact, we saw in first semester that the Constitutional Court has managed to construct an independent stream of judicial review of

administrative action on the basis of this principle.

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o Lack of authority

In Port Nolloth Municipality v Xhalisa 1991 (3) SA 98 (C) the Municipality had purported to eject about 150

squatters from a shanty town on the outskirts of Port Nolloth. There was no provision in any law which

authorized a mass eviction, so this exercise of public power was duly found to be unlawful and therefore

invalid.

In Maluleke v MEC for Health and Welfare, Northern Province 1999 (4) SA 367 (T) the Province had

discovered that many people were fraudulently getting social grants to which they were not qualified. To try

and stop this, the Province cancelled all existing grants and called for fresh applications, which could then be

properly screened to admit only deserving recipients. This action was challenged by one of the bona fide grant

recipients, inter alia on the ground that there was no lawful authority at all for such action. His application was

upheld, since the Social Pensions Act did not allow cancellation of grants for the particular purpose cited by

the government, namely curbing corruption (although the Act did allow cancellation for other purposes). Thus

there was a relevant empowering law, but not one which authorized this particular exercise of power.

o An unauthorized body

As to the second sub-requirement, an exercise of public power will be void for want of authority if the official

who took the action was not properly qualified (for example, he was not ‘the Minister’, which is who the law

empowers), or if the panel taking the decision was improperly constituted (for example, it had only four

members present at the taking of the decision, but the law requires five; or it requires the Premier to be sitting

on the panel, but she was not).

Thus in Awumey v Fort Cox Agricultural College 2003 (8) BCLR 861 (Ck) the applicant successfully challenged

his dismissal from the position of the principal of the College because certain members of the Board of

Governors (which had dismissed him) were not teachers, as required by the law.

In Seven-Eleven Corporation SA (Pty) Ltd v Simelane NO 2002 (1) SA 118 (T) the Competition Commission’s

decision to refer a matter concerning the appellant to the Competition Tribunal was challenged. The argument

was that the Commission had been improperly constituted: the Commissioner himself—who was required by

the Competition Act to be present at the meeting—had not in fact been involved. The High Court found for the

appellant (although the decision was reversed by the SCA on a different interpretation of the facts).

In Judicial Service Commission v Premier, Western Cape [2011] ZASCA 53 Helen Zille successfully challenged

the decision of the JSC not to impeach Hlophe JP for misconduct. The basis of the challenge was that the JSC

had been improperly constituted when taking the decision, in that the Premier of the province in which the

Judge President sat (i.e. Zille herself) had not been present. Another recent challenge to a decision taken by

the JSC—specifically, the decision not to appoint any judges to the available vacancies—was heard in Cape Bar

Council v Judicial Service Commission [2011] ZAWCHC 388. Again, the decision was invalidated inter alia

because the JSC was improperly constituted: the Judge President of the SCA, Lex Mpati, had not been present.

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(c) Sources of authority

Clearly, then, it is essential that there be an empowering provision giving authority to the official to exercise

the public power. This section looks at the kinds of law which can in principle confer such authority.

o Legislation

Quite obviously authority could be conferred by legislation. There are other, less obvious sources.2

o The Constitution and the common law

It is possible for the lawful authority to be the Constitution itself. This possibility was raised in Minister of

Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC). There was a flood in which

several people lost their homes, so the State decided to accommodate them temporarily on public land near

Kyalami. The residents of Kyalami were grossed out by the poor people so close to them, so they challenged

this action inter alia on the ground of lawfulness, specifically the fact that there was no law authorizing the

State to house them on this land. There was indeed no legislation which the State could rely upon in this

regard, and accordingly the High Court granted the interdict in favour of the applicants. But the Constitutional

Court overturned this decision, holding that in fact the State had acted lawfully. It held that the provision of

relief to victims of natural disasters was an essential role of government and that the government had acted

neither arbitrarily nor otherwise contrary to the rule of law. Moreover, the constitutional right to housing

imposed a duty upon the State to provide accommodation to the victims of the flood. So the Constitution and

its general duties can be creatively used to serve as an empowering provision.

In fact, in Kyalami the source of the State’s power was held to lie in part in the common law, in that any owner

of property has the common-law right to house on it whomever it wants. This reasoning was applied in Bullock

NO v Provincial Government of North West Province [2004] ZASCA 21: even though there was no legislation

authorizing the government to grant a servitude over its land, it was never in dispute that it was allowed to do

so by virtue of its common-law ownership rights (as we know from first semester, though, this did not mean

the government could assert such right in a totally unfettered manner).

So Kyalami is extremely important in practice. This is because the State often takes actions which are not

authorized in any specific legislative provision but nevertheless amount to a legitimate attempt to do its job.

Kyalami is very strong authority to use in showing that such actions are lawful.

o Authority not in fact relied upon

What about if the administrator purports to act under legislation A, which does not in fact authorize such

action, but legislation B would actually authorize his action? Is legislation B’s mere existence enough to render

the action lawful, even though the administrator did not rely upon it (but instead on some other, unhelpful

legislation)? The answer is ‘Yes, sometimes’, as the case law discussed below shows.

In Latib v The Administrator, Transvaal 1969 (3) SA 186 (T) the Administrator had issued a notice under s

5(3)(b) of the Roads Ordinance designating a road to be a ‘public main road’. The road passed through private

land and public land. Section 5(3)(b) was only capable of authorizing such action in respect of the private land.

2 We covered all the sources of administrative authority in first semester with Corder. Look there if you want more detail.

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Section 5(3)(c) was capable of authorizing such action in respect of the public land. The question, then, was

whether the Administrator’s failure to rely also on s 5(3)(c) rendered his actions invalid. The Court held that,

although it is desirable to rely on the correct section, failure to do so does not invalidate the exercise of public

power unless the authorizing section specifically requires that it be mentioned.

In subsequent cases, the rule laid down in Latib was narrowly interpreted so as to apply only where the

official’s failure to rely on the correct section was an oversight or administrative error. Thus in the important

recent case of Minister of Education v Harris 2001 (4) SA 1297 (CC) the Constitutional Court held that the

official’s reliance on the wrong provision was fatal because he had ‘consciously opted’ for it. In short, the rule

seems to be that the existence of the alternate provision will only suffice to authorize the action if the official’s

failure to rely thereon was inadvertent.3

This rule received some additional support in Pinnacle Point Casino (Pty) Ltd v Auret NO 1999 (4) SA 763 (C).4

The rule seeks to strike an appropriate balance between the interests at play: on the one hand, it is

undesirable to penalize administrators for making purely technical errors; on the other, the requirements of

lawfulness may never be evaded, and it erodes legal certainty if administrators can change the provision they

are relying on willy-nilly.

Obviously the requirements of the alternate provision must be fully satisfied, or otherwise it couldn’t render

the action lawful (even assuming the Harris rule comes to the official’s aid). The upshot is that legislation A and

B will usually have to be very similar—or otherwise action purportedly taken under the one would not be valid

under the other.

Where legislation A is more restrictive than B, the official may not swap over from A and rely for authorization

on B. This is surprising on the face of it (since if legislation A is more restrictive than B then any action

satisfying A should also satisfy B), but the rationale is that the official must not be allowed to swap over to

legislation B in order to avoid his obligations under legislation A. Suppose, for example, that there are two land

Acts. One allows for the expropriation of landowners provided that notice is given to them. Purportedly acting

under this Act, an official expropriates the land without giving notice. When his actions are challenged for non-

compliance with the Act, the official decides he is going to switch over to the other Act, which allows for

expropriation but does not require the giving of notice, in an attempt to escape the consequences of his failure

to provide notice. This naughty behaviour is not permitted. Thus it was stated in Sedgefield Ratepayers’ and

Voters’ Association v Government of the Republic of South Africa 1989 (2) 685 (C) that:

If … there were indeed two powers which could potentially have been invoked … but one of them was

restricted and the other was not, then if the functionary chose to exercise the restricted power but

purported to disregard the restriction … I fail to see how he can subsequently take refuge in the existence of

the unrestricted power when [by his own admission] he never purported to exercise it.

(d) Summary: five ways of lacking authority

We can see from the above that there are six ways that an exercise of public power can be unlawful for want

of authority:

1. There is no law at all authorizing such exercise of power.

3 Danwood simply said that Latib laid down this rule. It is clearly more complicated than that. Where I have changed what Danwood said it is based on Hoexter. 4 Danwood’s slide notes include a very long and boring discussion of this case. It doesn’t seem worth including.

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2. The law which does exist has been contravened.

3. The law which does exist has been overstepped.

4. The person (or one of the persons) taking the decision is improperly qualified.

5. The body taking the decision is improperly constituted.

6. There has been deliberate reliance by the official upon the wrong legislation.

(e) Delegation by Parliament to the administration

Now we turn to an important issue within the authority requirement: delegation. As we’ve said, it is crucial

that the particular official exercising the power is authorized to do so. The question, then, is how and to whom

can authority be delegated? Authority originates with Parliament, but it can delegate to others. That is what

we discuss in this subsection. In the next subsection we discuss sub-delegation, i.e. attempts by Parliament’s

delegates to further delegate their powers.

Parliament is generally allowed to delegate to anyone. This is a necessity of governance today; running a

country is simply too complicated to require Parliament to take every decision. The exceptions to this general

rule are that Parliament may not:

Oust the jurisdiction of the courts

One of the obvious limitations on Parliament’s power stems from the separation of powers. In Minister of

Interior v Harris 1952 (2) 428 (A) an Act was passed to create a High Court of Parliament, i.e. a court staffed

with MPs which was empowered to overrule the ordinary courts’ decisions. The constitution of that time did

not specifically provide for the separation of powers, but nevertheless it was read to be broadly implicit in the

constitution. On this basis it was held that the Act was invalid because it ousted the jurisdiction of the courts.

Now the 1996 Constitution does specifically deal with this issue: s 165(3) states that Parliament cannot oust

the jurisdiction of the courts.

Delegate powers to enact or amend primary legislation

In Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877

(CC) President Mandela sought to amend the Local Government Transition Act, acting in terms of s 16 of the

same Act, which authorized him to do so. The Court held that s 16 was unconstitutional because the

enactment and amendment of primary legislation are powers which only Parliament is authorized to exercise.

(This must not be confused with the enactment and amendment of subordinate or delegated legislation. Of

course Parliament is allowed to let others exercise those powers.) This case marked a strong departure from

the pre-apartheid position, where the State President and other prominent members of the executive were

given sweeping powers, including to amend legislation. So, once again, it is the Constitution which is

responsible for placing limitations on the extent of delegation by the legislature.

Delegate wide discretionary powers

Administrative discretion is important, because it allows the administrator to take account of the particular

facts or circumstances when making a decision. But it is unlawful for Parliament to confer overly wide

discretionary powers on administrators. This was at issue in Dawood v Minister of Home Affairs 2000 (3) SA

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936 (CC). This case concerned the Aliens Control Act, which required (at least in certain circumstances) that

spouses of South African citizens apply for residence permits while outside South Africa. Thus certain foreign

spouses had been deported while they were busy applying for their residence permits. This legislation was

challenged for being inconsistent with the Bill of Rights (for breaking up families and shit). The important

question for our purposes is whether the limitation of these rights was held to be justifiable in terms of s 36.

The applicants argued that it was not, because the discretion conferred on administrators was so wide; in the

absence of guidelines it was quite likely that administrators would take decisions which unjustifiably infringed

the Bill of Rights. The Court agreed, saying that although the administrators would in theory be bound to

exercise their discretion in line with the Bill of Rights, this was not enough. Firstly, broad discretionary powers

create conditions where unconstitutional conduct is likely: administrators are not trained in law and

constitutional interpretation, and are too busy to ensure in the absence of legislative guidelines that their

decisions are consistent with the Bill of Rights. Moreover, the rule of law requires clear and accessible rules to

be stated for all exercises of public power. Otherwise it is difficult for people to know whether they can or

should seek a remedy for an unfavourable administrative action.

Then in Janse van Rensburg NO v Minister of Trade and Industry NO 2001 (1) SA 29 (CC) the Court held,

similarly, that the ‘unfettered and unguided’ discretion conferred on the Minister by the relevant legislation

made it an unjustifiable limitation of the right to procedurally fair administrative action. The upshot of these

two cases seems to be that a discretionary power capable of limiting constitutional rights cannot be justified

simply by the assumption that the power will be exercised in accordance with the Bill of Rights. Rather, it is

necessary to provide guidance in the legislation itself. Hoexter points out that any exercise of public power

taken in terms of almost any legislative provision has the potential to violate fundamental rights (most

obviously the right to administrative justice), so these decisions have broad implications.

Finally, in Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) similar principles were

enunciated. Ngcobo J stated that delegations of power must not be ‘so broad or vague that the authority … is

unable to determine the nature and scope of the powers conferred’, for ‘this may well lead to the arbitrary

exercise of the delegated power’. On the facts, however, the Medicines and Related Substances Act was held

to be sufficiently clear and restrictive when read as a whole. This case has been criticised for circumscribing

the savoury principles laid down in Dawood. It should therefore be interpreted restrictively: it must be borne

in mind that the facts in this case were very strong, and that, ordinarily, legislation must state the constraints

on the administrator clearly and explicitly; it is not acceptable to say that the guidelines emerge from a holistic

reading of the Act together with other relevant legislation.

(f) Sub-delegation by the authorized administrator to another

As a general rule, only the person given authority to exercise a public power may lawfully do so. The rationale

is that Parliament is presumed to have given authority to a particular official for good reason. When the

person who Parliament has authorized allows another person to exercise it he is said to have ‘abdicated’ his

authority, and the other person to have ‘usurped’ it. That other person can be said to have exercised the

power because it has been straightforwardly delegated to him, or because the official exercising the power has

acted under dictation (i.e. just followed some other person’s instruction blindly, without applying his mind) or,

similarly, referred the matter to the other person. Delegation is by far the most important of these.

Section 238 of the Constitution reads as follows:

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An executive organ of state in any sphere of government may

(a) delegate any power or function that is to be exercised or performed in terms of legislation to any

other executive organ of state, provided the delegation is consistent with the legislation in terms

of which the power is exercised or the function is performed; or

(b) exercise any power or perform any function for any other executive organ of state on an agency or

delegation basis.

So there is a clear constitutional basis for delegation from one administrator to another. But PAJA s 6(2)(a)(ii)

states that an administrative action is reviewable ‘if the administrator who took it acted under a delegation of

power which was not authorized by the empowering provision’. The basic point is expressed in the maxim

delegatus non potest delegare (‘one to whom power is delegated cannot himself further delegate that

power’), the presumption against sub-delegation: if any purported sub-delegation is to be lawful, Parliament

must intend it to be so.

o Express authority to sub-delegate

Some statutes contain an express power to delegate. In G v Superintendent, Groote Schuur Hospital 1993 (2)

SA 255 (C) the superintendent was authorized by the Child Care Act to consent to the operation on a child

where the parent has withheld such consent. He had delegated this power to numerous members of the

medical staff at the hospital, and this was challenged. The Act expressly allowed sub-delegation and placed no

limit on the number of sub-delegates, so it was a simple matter of interpretation for the Court to reject this

argument.

o Implied authority to sub-delegate

Normally, however, the fact that sub-delegation is permitted will be implied rather than express. In such

circumstances it is presumed that sub-delegation is not intended (as stated above), but this presumption can

be rebutted by considering five factors:

1. The nature of the power

Some powers are mechanical (e.g. if an applicant passes his driver’s test, he must be given a driver’s license)

and others are discretionary. Courts will much more readily infer that mechanical powers are delegable.

Discretionary ones typically require the skills and expertise of the person directly authorized by Parliament,

and as such will not readily be taken to be delegable.

In the famous old case of Shidiack v Union Government (Minister of Interior) 1912 AD 642 the Immigration

Act of 1906 said that a foreign immigrant is prohibited from staying in South Africa if through deficient

education he cannot complete and sign the application form in a European language. The Act said that the

immigrant must complete the form ‘to the satisfaction of the Minister’. It had been decided by one of the

Minister’s delegates that Shidiack had not completed the form satisfactorily and must therefore be deported

from the country. Shidiack challenged this action inter alia on the ground that this sub-delegation was invalid,

i.e. that the Minister himself must make this call. Innes ACJ agreed with this argument, saying that the Act

required a careful, judicious decision and that

where the Legislature places upon any official the responsibility of exercising a discretion which the nature

of the subject matter and the language of the section show can only be properly exercised in a judicial

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spirit, then that responsibility cannot be vicariously discharged. The persons concerned have a right to

demand the judgment of the specially selected officer.

In short, this was a discretionary decision which required the special judgment of the Minister, and so could

not be delegated by him.

2. Whether the power has far-reaching consequences

The courts will be reluctant to infer that delegation is permissible in respect of a power with far-reaching

consequences. In Aluchem (Pty) Ltd v Minister of Mineral and Energy Affairs 1985 (3) SA 626 (T) the

government Price Controller had issued a notice withdrawing all permits to sell coal and calling on fresh

applications to the Director-General of the Department of Mineral and Energy Affairs to get new permits.

Aluchem challenged this notice inter alia on the grounds that the Price Controller was not authorized to sub-

delegate to the Director-General the power to decide on the issuing of new permits. The Court upheld this

challenge, saying:

The powers conferred on the third respondent are of a far-reaching nature … and the grant or refusal of the

right to sell coal is clearly a matter of considerable moment to applicants for the necessary authority. These

are factors militating against a delegation of powers

3. The extent of the sub-delegation

The courts will be more inclined to approve a sub-delegation where the discretionary power is only partly

transferred. This will be the case where the original delegee retains a measure of control over the exercise of

the discretion, or where the sub-delegee is provided with adequate guidelines for the exercise of the power. A

ministerial function is one performed in a mechanical manner in complete obedience to legal authority and

without using any personal judgment (e.g. the granting of a driver’s license following the successful

completion of a driver’s test). Such a power is easy to sub-delegate. In SA Freight Consolidators (Pty) Ltd v

Chairman, National Transport Commission 1987 (4) SA 155 (W) two further categories were acknowledged:

deconcentration, where the delegee retains control and may withdraw the sub-delegation at any time; and

decentralization, where the power is totally delegated, without the delegee retaining any oversight role.

Obviously courts will more readily accept deconcentration.

4. The importance of the delegee

Sub-delegation will be approved less readily where the delegee has been given power because of his special

skills or expertise. In other words, if Parliament has delegated its powers to someone who is uniquely well

qualified or positioned to take the decision in question, courts are likely to infer that Parliament specifically

wanted that person to take the decision, and so they will not permit sub-delegation. The most important case

here is Minister of Trade and Industry v Niewoudt 1985 (2) SA 1 (C). The Minister had in terms of the

Companies Act appointed a team of inspectors to investigate a certain company. The inspectors then brought

some advocates with them to interrogate the company employees. This was challenged on the grounds that

the inspectors could not lawfully delegate their investigative powers to the advocates. The Court upheld this

argument, saying that the inspectors have special skills to investigate companies.

5. Practical necessity

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Often it is simply impracticable to expect the person authorized by Parliament to do all the work. If so, courts

will more readily infer that sub-delegation is permitted. If Shidiack was heard today, for example, it would

almost certainly be held that sub-delegation by the Minister was permissible. This is because there are just too

many immigration applications today (but obviously not in 1912) for the Minister to adjudicate each. Similarly,

in the English case of In Re Golden Chemical Products Ltd [1976] Ch 300 it was held that the Inspector of

Companies had to decide personally whether to wind-up a company where it was expedient and in the public

interest to do so. But if this case were heard now sub-delegation would surely be approved, simply because

there are too many companies nowadays for the Inspector to handle them all by himself.

An important case in the area of sub-delegation is the tiresome Minister of Health v New Clicks South Africa

(Pty) Ltd 2006 (2) SA 311 (CC).5 For present purposes what is interesting is the argument that it was unlawful

for the Minister and the Pricing Committee to sub-delegate to the Director-General their power to formulate a

methodology to bring our medicinal pricing into line with international benchmarks. Chaskalson CJ said the

following:

The methodology is an essential part of the pricing system, and is the basis for the determination of the

maximum SEP [basically the wholesale price]. No objective criteria are set for establishing the methodology.

In effect, the regulations vest a broad subjective discretion in the Director-General to determine a crucial

part of the pricing system.

It may well be legitimate for the Minister and the Pricing Committee to make provision for a system which

will require the prices of medicines in South Africa to be brought into line with international benchmarks,

and to delegate to the Director-General the responsibility for making the calculations necessary to give

effect to that methodology. But the regulations go much further than that. They delegate to the Director-

General the power to determine the methodology itself. The Director-General has to decide what factors

that influence price are relevant and have to be taken into account, what medicines are deemed to be

equivalent for the purpose of the benchmarking, what countries are to be used for the purpose of the

benchmarking, and what methodology is to be applied in determining whether or not the SEP is in

conformity with ‘international benchmarks’.

The methodology will ultimately determine the SEP of every medicine or Scheduled substance. That was

pre-eminently a task for the Minister and the Pricing Committee. The Pricing Committee was appointed

because of its special expertise. Policy considerations require the Minister’s involvement as well. They must

determine the pricing system themselves, and not delegate this function to the Director-General.

On this basis the sub-delegation was held to be unlawful. The reason this quotation is important is because the

reasoning in it considers all of the first four factors mentioned above: the discretionary nature of the power,

the far-reaching consequences of the power, the extensiveness of the delegation, and the importance of the

delegee.

Another important Constitutional Court judgment here is AAA Investments (Pty) Ltd v Micro Finance

Regulatory Council 2007 (1) SA 343 (CC). This is another case we’ve briefly encountered before, when we

discussed in first semester the extent to which non-State actors are reviewable under s 33. Section 15A of the

5 Bizarrely, Danwood said in his last lecture that we can ignore this case for purposes of lawfulness. He mentioned it several times in his slides, though, and Corder has often stressed what an important case it is. So I think it would be a bad idea to take too seriously what Danwood said at that last lecture, and I’ve included what it says about delegation here. The case is discussed in way more detail (though not this delegation aspect) later on in the course.

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Usury Act allowed the Minister of Trade and Industry to exempt certain categories of money-lending from the

provisions of the Act on such conditions as he may deem fit. In terms of this section, the Minister had

exempted micro-lending transactions (i.e. those of a value less than R10 000) to be exempted from the

provisions of the Act, provided that they register with the Minister’s approved regulatory institution. The

nominated regulatory institution was the Council (the respondent), a private, non-profit company. The Council

had a set of Rules with which micro-lenders had to comply before they would be registered. AAA Investments

was one micro-lender whose registration had been rejected for non-compliance with the Rules. It took the

Council’s decision on judicial review.

The first question was whether the Council had any administrative law-related duties at all, given that it was a

private company. The SCA had held, applying a characteristically old-fashioned, ‘form over substance’

approach, that the Council was exercising private power in terms of the contracts between it and the micro-

lenders registered with it, and was as such not subject to review. The Constitutional Court, however, was

unanimous in holding that the Council exercised public power: it was performing a public function in the public

interest under the control of a public official, the Minister. This meant that the Council was clearly an ‘organ of

state’ even though it was nominally a private entity:

Our Constitution ensures … that government cannot be released from its human rights and rule of law

obligations simply because it employs the strategy of delegating its functions to another entity.

Our Constitution does not do this, however, by an expanded notion of the concept of government or the

executive or by relying on concepts of agency or instrumentality. It does so by a relatively broad definition

of an organ of state. This definition renders the legality principle and the Bill of Rights applicable to a wider

category of function ... An organ of state is, amongst other things, an entity that performs a public function

in terms of national legislation. If the Council performs its functions in terms of national legislation, and

these functions are public in character, it is subject to the legality principle and the privacy protection. In

our constitutional structure, the Council or any other entity does not have to be part of government or the

government itself to be bound by the Constitution as a whole.

It followed that the Council’s conduct amounted to the exercise of public power. But what kind of power? This

obviously affected the set of legal standards applicable. The Court had to decide, in particular, whether the

Rules made by the Council were legislation, as the High Court had held. The Court’s answer, per Yacoob J, is

‘No’:

The Rules are not and do not purport to be national, provincial or local government legislation. They are

binding Rules at what may be described as a secondary level. They derive their validity from the Exemption

Notice [promulgated by the Minister]. This judgment holds that the Council exercised public power in terms

of the Exemption Notice. This is a rule-making power aimed at fulfilling the duties imposed by the Minister.

They are legislative. But the Council does not, by making rules, or by exercising legislative power properly

delegated to it, usurp national, provincial or municipal legislative power. It makes binding rules authorised

by law and with the force of law in the fulfilment of a national legislative purpose …

So the Court draws a fine, but ultimately correct, distinction: the Council does not exercise legislative powers

but does indirectly create binding law, through the force bestowed on its Rules by the Minister.

The third question was whether the Minister was lawfully able to delegate to the Council the powers to make

those rules. Here the Court split. The Usury Act did not give express authority to delegate rule-making powers.

Thus one would’ve thought that Yacoob J, writing for the majority, would turn to the well-established factors

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for determining whether the power to delegate is implied by the legislation (the nature of the power, the

consequences thereof, the extent of the delegation, the importance of the delegee, and practical necessity).

But instead Yacoob J went straight to the question of whether the notice issued by the Minister under s 15A,

properly interpreted, had by necessary implication delegated the power to make rules to the Council. That is,

Yacoob J simply asked whether the notice had purported to delegate the power, and ignored the question of

whether such delegation would be lawful in terms of the empowering legislation. Danwood says that Yacoob

J’s judgment is therefore ‘dumbfounding’. But the reason Yacoob J ignores the delegation question is quite

clear: he says that counsel for AAA Investments expressly stated that they were not alleging that the notice

purporting to effect the delegation was invalid. It followed, according the Yacoob J, that they were accepting

that the delegation was lawful.

Langa CJ’s judgment does investigate the delegation issue in detail (see para 79ff). He systematically applies

the five well-known factors for discerning an implied power to delegate: Firstly, the power to regulate the

microfinance industry is highly complicated and not at all mechanical. Secondly, the power to regulate the

microfinance industry is a far-reaching power. Thirdly, although the Minister did retain some control over the

Council, this control was indirect, rather than involving oversight of particular decisions, and constrained, in

that the Minister could only with great difficulty remove the Council as a regulatory institution and replace it

with another. Fourthly, practical necessity was highly relevant but—crucially—only insofar as the

implementation of existing rules was concerned. In other words, it was practically necessary to delegate the

power to enforce the Minister’s rules, but not at all necessary to delegate the power to create new rules.

Finally, the delegee (the Minister) has unique knowledge and experience. But the main reason that it is

important that he personally exercise the power is accountability: the Minister is accountable to the

government and the electorate, but the Council is not. This is a useful new consideration which Langa CJ has

introduced into the sub-delegation enquiry. Anyway, on the facts Langa CJ said that the delegation of the

power, because it went beyond merely allowing the Council to enforce existing rules, was unlawful.

As for O’Regan J’s judgment, she adopts substantially Langa CJ’s approach to delegation. The only difference

was that she held that in fact the Council was not given the power to do more than was reasonably necessary

to enforce the Minister’s own rules. So, though she agreed with Langa CJ’s legal tests, she held that the powers

which were delegated did not fall foul of these.

(g) Assignment and transfer

Sections 97 and 98 of the Constitution allow for assignment and transfer of the powers of Cabinet members.

This basically means the President moving powers around between his different Ministers and their

departments. Section 99 allows for the assignment by Ministers of their powers to provincial or municipal

executive councils. Assignment means the reallocation of a power and the related duty; transfer means the

reallocation of the power only. The point is that these sections create exceptions to the general rule against

sub-delegation.

(h) Unlawful dictation and referral

We said previously that delegation is just one of the ways that an official can abdicate his power. The other

two are dictation and referral. Like delegation, both of these can render an exercise of public power unlawful

because they conflict with the presumption that Parliament confers authority on a particular official for good

reason. But dictation and referral are more subtle than delegation. They are also harder to discern and prove,

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because it is quite legitimate for an administrator to get advice from other persons when making decisions.

Thus we need to decide whether a particular process of consultation oversteps the mark by giving too much

power to an unauthorized person, thus rendering it unlawful.

An official acts under dictation when he allows another person to instruct him or unduly influence him on what

decision to take, although the official still purports to be exercising the power himself. In other words,

dictation is when an official simply ‘rubber-stamps’ the instruction of some other person (note the similarity

with a failure to apply one’s mind). Where an official has acted under dictation, the law regards the person

who instructed him to be the person exercising the power. Therefore if the instructor lacks authority, the

exercise of power will be unlawful.

Referral is ‘passing the buck’, passing one’s functions and duties over to another person. A referral can be

almost indistinguishable from acting under dictation, and Hoexter says there is often no utility at all in trying to

distinguish them. Danwood says that perhaps what is unique about referral is that it typically entails a belief by

the administrator that the person to whom the issue has been referred has legal authority. Acting under

dictation, by contrast, generally involves recognition by the administrator that he is the person ultimately

required to make the decision—although of course the law considers him not to have done so. Anyway, the

basic point (with both acting under dictation and referral) is that an administrator may get advice from

unauthorized persons, but he must still make the final decision himself.

In SARFU (which we dealt with in first semester), the applicants argued that the appointment of a commission

of inquiry into South African rugby was unlawful. One of the grounds they relied upon was that the President

had unlawfully delegated his powers to the Minister of Sport. This argument was based on the fact that the

President had, a few months before actually appointing the commission, intimated at a press conference that

the responsibility for the appointment of such a commission lay with the Minister. The Constitution states,

however, that the President himself must appoint such a commission. The Court helpfully explained the

distinction between the forms of abdication, referring to Baxter, and in the process indicated their agreement

that the President must exercise the power:

The first category of “abdication” referred to by Baxter occurs where a functionary in whom a power has

been vested delegates that power to someone else. Whether such delegation is valid depends upon

whether the recipient of the power is lawfully entitled to delegate that power to someone else. There can

be no doubt that when the Constitution vests the power to appoint commissions of inquiry in the President,

the President may not delegate that authority to a third party. The President himself must exercise the

power. Any delegation to a third party would be invalid. The second category referred to by Baxter deals

with cases where a functionary vested with a power does not of his or her own accord decide to exercise

the power, but does so on the instructions of another. The third category, “passing the buck”, contemplates

a situation in which the functionary may refer the decision to someone else. However, as Baxter points out,

if the final decision is taken by the properly empowered authority, there is no objection to taking the advice

of other officials.

The Court ultimately rejected the applicant’s argument, however (see below).

In Hofmeyr v Minister of Justice 1992 (3) SA 108 (C) the plaintiff, Willie Hofmeyr, had been detained in

Pollsmoor Prison for 156 days under certain emergency regulations. He sued for damages for unlawful arrest,

and one of the arguments was that his being placed in solitary confinement for most of those days was

unlawful. The Minister argued that it was lawful because the regulations specifically allowed the prison

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authorities to segregate prisoners if in his opinion it was practicable to do so. In fact, the prison authorities had

involved the security police in the decision whether to confine Hofmeyr. The question, therefore, was whether

this amounted to unlawful dictation or referral. In this regard, King J found that the prison officials had

exhibited an ‘attitude of subservience’ to the dictates of the security police, and concluded that:

The constant reference by the prison officials to the security police of requests that plaintiff's segregation

be alleviated went far beyond a mere search for guidance; it connotes a refusal to take a decision and a

referral for decision to the security police.

The Court came to this conclusion although the prison officials testified that they had applied their minds and

had personally reached the decision as to where the plaintiff should be held. The point is basically that it must

be determined on the facts whether the consultation involved such subservience that it amounts to dictation

or referral.

In Minister of Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd 2005 (6) SA 182 (SCA) the

Deputy Director-General was empowered to award fishing quotas. He had determined the criteria to be

considered and had in many cases overseen the application process. However, he had made use of an advisory

committee to assist with evaluating applications, awarding scores and drawing particular aspects of an

application to his attention. Arguing that this amounted to an unlawful referral to the committee, the

applicant sought to challenge the rejection of their application. Scott JA remarked as follows:

As to the reliance on the advice of another, … it does not follow that a functionary such as the Deputy

Director-General in the present case would have to read every word of every application and may not rely

on the assistance of others. Indeed, given the circumstances, Parliament could hardly have intended

otherwise. What the functionary may not do, of course, is adopt the role of a rubber stamp and so rely on

the advice of others that it cannot be said that it was he who exercised the power. If in making a decision he

were simply to rely on the advice of another without knowing the grounds on which that advice was given

the decision would clearly not be his. But, by the same token, merely because he was not acquainted with

every fact on which the advice was based would not mean that he would have failed properly to exercise

his discretion.

The Court concluded that the Deputy Director-General had made the decision himself (and therefore lawfully).

Dictation to an unauthorized official is already an implicit ground of review in PAJA s 6(2)(a)(i) (‘the

administrator who took [the decision] was not authorized to do so by the empowering provision’). But it is

explicitly recognised in s 6(2)(e)(iv) (‘the action was taken because of the unauthorized or unwarranted

dictates of another person or body’).

Referral is not explicitly mentioned in PAJA but could be read as implicit in either s 6(2)(a)(i) or s 6(2)(e)(iv).

Otherwise it would obviously be covered by the catch-all provision, s 6(2)(i).

(i) Authority to vary or revoke a decision: the functus officio doctrine

Suppose legislation allows an administrator to decide whether a person is eligible for a government grant. The

administrator decides that person A is eligible, and notifies him of this. Then five days later the administrator

changes his mind and tells A that actually he’s going to reconsider the matter. Is this lawful? In other words,

does the administrator have the authority to vary or revoke his decision?

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The answer is generally ‘No’: an administrator may only exercise his powers once in respect of any set of facts

or circumstances. That is, once an administrator has finally performed his statutory functions in relation to a

particular matter, he is deemed to have exhausted his authority in respect of that matter. Thus he will not

lawfully be able to take that decision again. This is known as the functus officio (‘having performed his office’)

doctrine.

The doctrine is comparable to the doctrine of res judicata in civil procedure (which prevents the same matter

being heard twice), the doctrine of autrefois in criminal procedure (which also prevents the same matter being

heard twice) and to estoppel in private law (which stops a person from denying a representation that he has

made, which could include a prior decision on a matter). But it is important to note that the functus officio

doctrine (unlike the others) relates specifically to the administrator’s authority.

The functus officio doctrine is also related to the doctrine of legitimate expectations, in the sense that a person

can often rely on either or both to invalidate a variation or revocation of an administrative decision. So, in our

above example, A could argue that the administrator has created an expectation by sending the first notice,

upon which A is legitimately entitled to rely and which therefore gives him a right to be heard prior to any

revocation. And in Kasiyamhuru v Minister of Home Affairs 1999 (1) SA 643 (W), where a Zimbabwean’s

entitlement to stay in South Africa was granted but then revoked, the Court invalidated this revocation even

though the administrator was broadly empowered to revoke such decisions. The reason was inter alia that the

applicant was not given a hearing. (See also Carlson, below.) The theoretical bases of the two doctrines are

quite different, however: the functus officio is a matter of lawfulness, but the doctrine of legitimate

expectations is a matter of procedural fairness (which is why the ultimate question when relying on the latter

doctrine is whether a hearing was given).

There are certain qualifications to the functus officio doctrine:

o Prescribed review or appeal procedure

Firstly, and perhaps most obviously, a decision can be varied or revoked if there is a prescribed review or

appeal procedure (of course, this procedure must then be complied with).

o Interim decisions

Secondly, the doctrine applies only to final decisions. An official may, therefore, revoke an interim decision.

This is exhibited in the SARFU case, which we’ve now encountered many times. We said above that the Court

agreed with the applicant that the President himself had to exercise the power to appoint the commission of

inquiry. Nevertheless, the Court did not ultimately uphold the applicant’s argument. It was found that the

President had not in fact delegated the authority to a third party: notwithstanding what he’d said at the press

conference some months prior, when the decision was ultimately made to appoint the commission this

decision was taken by the President himself. This reasoning raises the issue of revocation, since it presupposes

that the President was able to revoke his interim delegation to the Minister:

In law, the appointment of a commission only takes place when the President’s decision is translated into

an overt act, through public notification. … The President would have been entitled to change his mind at

any time prior to the promulgation of the notice.

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o Express authority to revoke or amend

Thirdly, the doctrine does not apply where the official is given express statutory authority to revoke his

decision. The most common examples of this come from tax statutes, like in Carlson Investments Share Block

(Pty) Ltd v Commissioner, SARS 2001 (3) SA 210 (W) (a case which also exhibits the close relationship between

the doctrine and some other grounds of review). Taxes had been levied on Carlson, but then three years later

further taxes were demanded by SARS following a reassessment. The tax legislation specifically said that SARS

was allowed to revise the tax assessments within a ‘reasonable time’. Carlson argued nevertheless that the

reassessment was contrary to the functus officio doctrine, contrary to the doctrine of legitimate expectations

and contrary to the requirements of certainty and finality (basically, aspects of the rule of law). The Court

rejected all these grounds. The argument based on the functus officio doctrine was rejected simply because

the legislation explicitly permitted variation. The argument based on the doctrine of legitimate expectations

was rejected because it was not legitimate for Carlson to expect to be levied less than the full extent of the

taxes lawfully required of it. The argument based on the rule of law was rejected because the reassessments

were allowed for the sake of the public interest and the need to treat all taxpayers equally.

o Implied authority to revoke or amend

Fourthly, the doctrine does not apply where the official is given implied statutory authority to revoke or amend

his decision. Needless to say, it is harder to discern implied authority than express authority. Courts will read

such authority restrictively, only inferring an implied power to revoke or amend if it is necessary to the

efficacious operation of the statute. In Private Security Industry Regulatory Authority v Anglo Platinum

Management Services Ltd [2006] ZASCA 129, the Minister purported to amend, relying on the wide powers to

make regulations under the Private Security Industry Regulation Act of 2001, certain exemptions to the

registration requirements under the Act which had been given in favour of the respondents. The exemptions

had initially been granted for an indefinite period, but now the Minister wanted to limit their period of

operation to one year. The amendment was declared invalid by the SCA because it was not necessary to the

efficacious operation of the statute:

The question whether or not legislation impliedly provides authority (for revocation in this case) ultimately

depends upon an interpretation of the statute concerned. As mentioned earlier, the Act confers no express

power of this kind. Does it do so impliedly? A provision can only be read into a statute when it is a necessary

implication. The test for implying the provision, therefore, is whether it is necessary for the efficacious

operation of the statute. In my view, there is no reason why the Act cannot operate efficaciously without

implying the power to revoke the exemptions in issue.

This was so because the Act already gave the Minister powers to impose conditions on exemptions or to limit

their duration. Thus there was no need for further regulations whose effect was to limit the exemptions which

had already been granted.

Courts may have regard to the following factors in determining whether there is an implied power to revoke or

amend:

1. Whether the original decision (now purportedly being revoked) is favourable to the citizen

An unfavourable decision (e.g. the denial of a permit or license) will be more readily revoked, for obvious

reasons: if no-one is harmed by the revocation, then there is no good reason to prevent it. Favourable

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decisions are more difficult to revoke because they amount to taking away a right or benefit that was already

granted. In Holden v Minister of the Interior 1952 (1) SA 98 (T), the Immigrants Regulation Act of 1913

provided that a prohibited immigrant was ‘any person or class of persons deemed by the Minister on

economic grounds or on account of standard or habits of life to be unsuited to the requirements of the Union

or any particular province thereof’. Based on this Act, a British subject was declared a prohibited immigrant.

Five months later, a new Minister revoked the decision of the former Minister. Four months after that,

another Minister reversed the latter decision. The Court held that the first cancellation was valid as it was a

revocation of an unfavourable decision. But the second one was not, as it reversed a favorable decision. In

other words, the Minister was functus officio at that point and so could not lawfully reverse the decision.

Whether the decision is favourable to the individual concerned only takes one so far, however. One also needs

to know:

2. Whether the decision affects third parties

Some government decisions have effects on the public in general, beyond the individual directly concerned.

Where this is so, a court may find that there is no implied power to revoke the decision even if such revocation

would benefit the particular individual.

o Invalid acts

Fifthly, the doctrine does not apply to invalid acts. This stands to reason because it would be against public

policy to prevent an administrator withdrawing a decision which is in any case unlawful. In practice this means

that if a revocation is challenged in judicial review proceedings a court will not invalidate that revocation if the

initial decision was itself invalid (indeed it would be absurd and unnecessary for the court to do so).

Although an administrator is strictly speaking permitted to revoke any decision which is unlawful, it is

undesirable for him to summarily revoke any decision which he personally thinks is unlawful. It is preferable

that the administrator bring an application for judicial review, so that the initial decision can be declared

invalid by a court. This raises the question of whether an administrator has locus standi to apply for the review

of his own decision. In Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA) there had

been a transfer of funds to the appellant under approval by the Registrar of Pension Funds (the second

respondent). It was argued that this approval was unauthorized, in that the Registrar had been misled by the

actuarial report submitted to him and as a result he had made a material error of fact. Importantly, the party

seeking to invalidate this decision was the Registrar himself. The question was therefore whether an

administrator can apply to have his own decision set side. It was noted firstly that:

This court has already held that if an administrative act has been performed irregularly – be it as a result of

an administrative error, fraud or other circumstance – then, depending upon the legislation involved and

the nature and functions of the public body, it may not only be entitled but also bound to raise the matter

in a court of law, if prejudiced.

It was argued by the appellant, however, that the Registrar was not actually ‘prejudiced’ here. The Court said

this argument was without merit: the Registrar had a statutory function to regulate pension funds in the public

interest, and so his office was compromised by any decision it had taken on the basis of a material error of

fact. It was therefore held that the Registrar was ‘entitled and even obliged’ to seek judicial review of his own

erroneous decision.

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o Small technical errors?

There is a paucity of judicial authority on the topic of small technical errors and mere slips. It seems sensible

and desirable for administrators freely to be able to correct these and clear up ambiguities in their decisions—

provided of course that the amendment or clarification does not amount to variation or revocation in

substance.

3 Jurisdiction

(a) Introduction

Assuming that there is some law which authorizes an exercise of power, it remains to be asked whether the

particular administrator who exercised the power had jurisdiction to decide the particular matter in issue. This

relates to the conditions which must be met or the procedures which must be complied with before the

administrator is lawfully able to exercise the public power in the given circumstances. For example, it might be

required in law that to be given a driving license the applicant has to pay R100 and pass his driving test. The

licensing authority will, in granting a license, have acted lawfully only if the applicant has complied with the

payment and test procedures. If those procedures weren’t complied with, the licensing authority will have

acted without jurisdiction notwithstanding the existence of a law authorizing its granting of licenses. Or a

police officer might be authorized in law to arrest anyone whom he reasonably suspects of having committed

an offence. He has jurisdiction to arrest a person only if he reasonably suspects that person of having

committed an offence.

(b) Jurisdictional and non-jurisdictional errors

On the one hand, an official’s decision should be invalidated if by reason of his error of fact or law he lacked

jurisdiction in the matter. On the other, such invalidation raises tricky separation of powers issues: if

Parliament has given the official the authority to make a decision, and thus to determine whether the required

procedures and conditions are met, then courts must be wary of declaring the official to have erred in doing

so. In other words, courts must be wary of enquiring into the merits of the administrator’s decision. In order to

limit courts’ powers in this regard, the common law developed a distinction between jurisdictional and non-

jurisdictional errors of fact and law. Jurisdictional errors are errors which actually deprive the official of

jurisdiction and thus justify the invalidation of the decision by a court. Non-jurisdictional errors are errors

which do not; they are non-reviewable ‘errors’ lying within the legitimate sphere of the administrator’s

discretion, i.e. within his jurisdiction. Unsurprisingly, it is difficult to discern crisp rules from the conflicting case

law for distinguishing jurisdictional and non-jurisdictional errors.

(c) Errors of fact

Looking now specifically at errors of fact, there is a distinction between procedural and substantive errors.

Procedural facts relate to errors involving the procedures to be followed before a given power can be

exercised. Substantive facts are the preconditions or circumstances which must exist before the stipulated

powers can be exercised. PAJA maintains these categories in s 6(2)(b) by providing for the review of an

administrative action ‘if a mandatory and material procedure or condition prescribed by an empowering

provision is not complied with’.

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o Procedural errors of fact

Common examples of procedural facts are the submission of an application, the signing of a form, or the

payment of a fee. Looking again at PAJA s 6(2)(b), we can see that the requirements for the review of a

decision on the ground of a procedural error of fact—in other words, the criteria for making a procedural error

of fact jurisdictional as opposed to non-jurisdictional—are that the procedure is:

1. material, i.e. not trivial; and

2. mandatory.

It is the latter of these which is by far the more complicated. What it basically means is that the formalities

prescribed by the Act of Parliament are peremptory rather than directory. In other words, the formalities are

not just helpful guidelines; they are such that failure to comply with them renders the pursuant decision

altogether invalid. To determine whether a procedure is mandatory, courts (in the pre-PAJA era) developed

certain criteria, stated definitively in the classic case of Sutters v Scheepers 1932 AD 165:6

1. Use of peremptory language. The use of peremptory language like ‘shall’ or ‘must’ obviously suggests

that compliance with the procedures is mandatory.

2. Use of the negative formulation. The use of the negative formulation (e.g. ‘No-one may receive a

license unless …’) suggests that compliance with the procedures is mandatory. Conversely, use of the

positive formulation (e.g. ‘One may receive a license if…’) suggests compliance is merely directory.

3. The presence or absence of a sanction (‘the penalty rule’). If no sanction is prescribed for non-

compliance, this suggests that compliance with the procedures is merely directory.

4. Requiring strict compliance will cause fraud or injustice.

5. The history of the legislation. Considering the history of the legislation, and the mischief at which it

was aimed at remedying, may indicate whether the formalities are peremptory or directory.

In general, the fact that the legislature penalises an act may mean that the act is prohibited and its effect

would lead to invalidity (see criterion 3). But this is not an inflexible rule. As always, the ultimate determinant

is the intention of the legislature. It may be that the presence of a sanction shows that the legislature thought

non-compliance is so serious that nullity must follow; but, conversely, it may be that the sanction is in itself

adequate punishment for non-compliance, so that it would be unreasonable to in addition nullify the pursuant

decision. It may also be that declaring the act invalid for non-compliance would be unduly inconvenient and

thus would not have been intended by the legislature. All of the principles just described were enunciated in

Standard Bank v Estate Van Rhyn 1925 AD 266. There is a close similarity here with the rules laid down in

deciding whether an unlawful contract is actually invalid.

The peremptory language rule (criterion 1) is also not as straightforward as it appears: some cases have

interpreted ‘shall’ as a mandatory requirement, others have not. In Maharaj v Rampersad 1964 (4) SA 638 (A),

for example, which dealt with an application for a motor carrier certificate (basically a license to drive a

passenger bus on a given route), the relevant provision required the applicant to provide a written description

of the route and to attach a map tracing that route. The respondent had provided the written description but

had failed to attach the map. It was held that the part of a provision dealing with the submission of a route

description was mandatory, while that dealing with the plan or map tracing was not. The Court emphasized

the object sought by the procedure, and the question of whether that object has been achieved. In other

words, it was reasoned that the map didn’t convey any information not already provided by the route

6 I have rearranged the criteria a bit because the case’s arrangement is dumb.

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description, so it was not necessary to require mandatorily the attachment of the map. Note also that this

judgment shows that the same provision might include both directory and peremptory procedures.

In Feinberg v Pietermaritzburg Liquor Licensing Board 1953 (4) SA 415 (A) the appellant in applying for the

renewal of his liquor licence was required to annex a plan of his premises, drawn to scale, and to file an

affidavit. All these requirements were preceded by the word ‘shall’. Both the failure to annex a plan and the

failure to file an affidavit were held to be fatal, i.e. both these procedures were regarded as peremptory. The

Court held obiter, however, that the scale requirement was merely directory. Thus the peremptory language

rule (and the use of the word ‘shall’) was not decisive of the matter. The Court stressed the primacy of

legislative intention.

Another complicating factor when considering whether compliance with the procedures laid down by a statute

is mandatory or not is whether there has been ‘substantial compliance’ with the procedures. In African

Christian Democratic Party v Electoral Commission 2006 (3) SA 305 (CC) the Electoral Commission had refused

to certify the applicant and its candidates, thereby excluding them from participating in a local government

election, for their having failed to pay the prescribed deposit in accordance with the Local Government:

Municipal Elections Act. The Party had, however, given notice of their intention to contest the election and

had submitted the required list of candidates. Moreover, the Commission actually had in their possession

enough of the Party’s funds to cover the deposit. The Constitutional Court held that in deciding whether there

has been compliance with a statutory requirement it is important to consider the object sought to be achieved

by the statutory requirement and whether that objective has been achieved. The Court held that, in light of

the Party’s notification to the Commission and the fact that the latter had enough of the former’s funds in its

possession, there had been substantial compliance with the provisions in question. It considered that the

purpose of these provisions was to promote multi-party democracy and to ensure that parties declare their

intention to contest the election by a certain date. The deposit was intended to ensure that participation of

parties and candidates is not frivolous. These purposes were held to be sufficiently satisfied in the

circumstances.

Although it is the ‘mandatory’ requirement which has the richer case law, now that PAJA has introduced the

materiality requirement many of the same issues could surely be dealt with there. In other words, in all three

of these cases one could say—even assuming that there was failure to comply with a mandatory provision—

that these requirements were too immaterial (or, equivalently, that the failure of compliance was too trivial)

to justify the invalidation of the decision.

o Substantive errors of fact

Substantive facts are the preconditions which must be met or must exist before the stipulated powers can be

exercised. Substantive jurisdictional facts fall into two groups: subjective and objective. The nature and

consequences of this distinction are our primary concern in this section. Subjective jurisdictional facts

traditionally do not provide a basis for a judge to intervene in the decision taken by the administrator.

Examples of phrases creating subjective facts include ‘in the opinion of’ and ‘is satisfied’. Objective

jurisdictional facts must exist in an objective sense before the exercise of power can be justified, and thus will

provide a basis for judicial intervention. Examples include the phrase ‘has reason to believe’ or ‘has reasonable

cause to believe’.

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The distinction was dealt with in South African Defence and Aid Fund v Minister of Justice 1967 (1) SA 263 (A).

The Suppression of Communism Act empowered the State President to declare that an organisation was

unlawful if he was ‘satisfied’ that it, among other things, professed by its name or otherwise or engaged in any

activities propagating or furthering the principles or the spread of communism. The Minister declared the

appellant to be such an unlawful organisation. Corbett JA held:

[A] jurisdictional fact may fall into one or other of two broad categories. It may consist of a fact, or state of

affairs, which, objectively speaking, must have existed before the statutory power could validly be

exercised. In such a case, the objective existence of the jurisdictional fact as a prelude to the exercise of

that power in a particular case is justiciable in a Court of law. If the Court finds that objectively the fact did

not exist, it may then declare invalid the purported exercise of the power … On the other hand, it may fall

into the category comprised by instances where the statute itself has entrusted to the repository of the

power the sole and exclusive function of determining whether in its opinion the pre-requisite fact, or state

of affairs, existed prior to the exercise of the power. In that event, the jurisdictional fact is, in truth, not

whether the prescribed fact, or state of affairs, existed in an objective sense but whether, subjectively

speaking, the repository of the power had decided that it did … The Court can interfere and declare the

exercise of the power invalid on the ground of a non-observance of the jurisdictional fact only where it is

shown that the repository of the power, in deciding that the pre-requisite fact or state of affairs existed,

acted mala fide or from ulterior motive or failed to apply his mind to the matter.

It was therefore held that the President’s decision in this case (taken in terms of legislation using subjective

language) could not be declared invalid merely on the ground that his decision was wrong or founded upon

incorrect facts regarding the activities of the applicant and their relation to communism. As Corbett J said (in

the last line quoted), one would have to go much further and prove one of three things: that the administrator

acted mala fides, from ulterior motive, or failed to apply his mind. These three factors were initially laid down

by Innes CJ in the classic case of Shidiack v Union Government (Minister of Interior) 1912 AD 642.

Subjective clauses confer wide powers on administrators. They resemble ouster clauses in that their effect is

to limit greatly the judicial review of those decisions. In Lucky Horseshoe (Pty) Ltd v Minister of Mineral and

Energy Affairs 1992 (3) SA 838 (T) the Petroleum Products Act provided that the Minister may prohibit ‘any

business practice, method of trading, agreement or arrangement or understanding, which, in the opinion of

the Minister, is calculated to influence, or which may have the effect of influencing, directly or indirectly, the

purchase or selling price of petroleum fuel at any outlet’. The applicant supplied to participating retail outlets

of various kinds, including petrol filling-stations, competition tickets which entitled shoppers, after answering a

simple question, to participate in a monthly draw for various prizes. The Minister prohibited this arrangement

for contravening the regulations. When this decision was challenged, it was held that the jurisdictional facts

for the exercise of the power conferred on the Minister by the Act were as follows. Firstly, the existence of a

business practice, method of trading, agreement or arrangement or understanding. This was an objective fact

and as such justiciable. Secondly, that the Minister must form the opinion that it was calculated to influence or

that it might have had the effect of influencing directly or indirectly the price of petroleum fuel at any outlet.

The Court held that the Minister’s holding this opinion was an objective fact: in the absence of such an opinion,

a vital jurisdictional fact was lacking and the Minister had no power to regulate. However, the content of the

opinion was subjective, and as such can be attested to only by the Minister himself and cannot be reviewed by

a court. Nevertheless the judge noted that a subjective opinion is not ‘unfettered’.

In Kabinet van die Tussentydse Regering vir Suidwes-Afrika v Katofa 1987 (1) 695 (A) the respondent's

brother was arrested and detained on instruction of the Administrator-General, acting in terms of s 2 of a

certain Ordinance. The Administrator-General did not give reasons for the detention other than that he was

22

‘satisfied’ that the detainee was a person described in the provision. It was held, quashing the decision of the

lower court, that the use of the words ‘if the Administrator-General is satisfied’ meant that the facts on which

the Administrator-General had based his decision were to be determined subjectively by him. Thus, by simply

stating that he was satisfied that the detainee was a person as intended by the provision, the Administrator-

General had discharged the onus resting on him of justifying the detention of the detainee. The ultra-

deferential Appellate Division thus sanctioned the exercise of totally arbitrary State powers.

In Minister of Law and Order v Hurley [1986] ZASCA 53 (another late-1980s case heard by the extremely

executive-minded Appellate Division) the Internal Security Act provided that any commissioned officer may

arrest without warrant any person if he ‘has reason to believe’ that that person has committed certain

specified offences. The first applicant, the Archbishop of Durban, alleged that no person acting reasonably

could have come to the conclusion that the detainee, who had been arrested in terms of this Act, had

committed any offence. He stated that the detainee was well known to him, that he was a Christian with

deeply-held convictions, who, although opposed to the policies of the apartheid government, was opposed to

violence as a means of attaining any purpose whatsoever. He therefore argued that the detention was

unlawful. It was held that that the ordinary grammatical meaning of the phrase ‘reason to believe’ (or,

similarly, ‘has reasonable cause to believe’) was a belief based upon reason and did not mean ‘thinks he has

reason to believe’: there had to be a factual basis for the reason. The jurisdictional fact in the present case

consisted of a fact which, objectively speaking, had to exist before the statutory power could validly be

exercised, and the objective existence of such jurisdictional fact was justiciable in a Court of law. This case

ended a long period of contradictory decisions as to whether the phrase ‘has reason to believe’ engendered an

objective judgment of the existence of the conditions which trigger the administrator’s jurisdiction. So there

was at least some resistance by the courts where Parliament chose to use objective phrases.

As noted earlier, subjective clauses have the effect of limiting judicial review, and give administrators wide

powers. The problem with such broad powers is that they are not conducive to accountability, transparency

and openness, and can lead to violations of human rights. The new Constitution has ushered in a new era of

administrative justice based on responsiveness, participation, transparency and justification. Lawfulness in the

Constitution means that administrators must ensure that their decisions and the factual assumptions on which

they are based are consistent with the law, while reasonableness requires that they should justify their

decisions. The cases of Dawood v Minister of Home Affairs and Janse van Rensburg v Minister of Trade and

Industry (both mentioned previously) show that courts are not in favour of Parliament granting broad,

unguided, discretionary powers. Constitutional values and principles must be reconciled with the doctrine of

separation of powers, which underpins the South African Constitution. Thus deference will still have to be

observed in cases where Parliament clearly intends the administrators to have discretionary powers. But the

restrictions placed on wide and unguided discretionary powers affecting human rights will most likely limit the

extent to which administrators may be given exclusive powers regarding the interpretation of facts. But it is

unlikely that subjective clauses will be interpreted as conferring wide powers, as was the case under the

common law, mainly because the Constitution now demands that reasons be given for administrative action

and that all powers must be exercised reasonably. This brings to the fore the requirements of rationality and

proportionality. Also note that administrators can be required to give reasons in most circumstances, which

exposes them to reasonableness review even if the standard is subjective.

In Derby-Lewis v Chairman, Amnesty Committee of the TRC 2001 (3) SA 1033 (C) the TRC Act provided that

the Committee shall grant amnesty if it is ‘satisfied’ inter alia that the applicant ‘has made a full disclosure of

all relevant facts’. The High Court held that full disclosure was a condition precedent to the granting of

23

amnesty, which had to be objectively determined. The Court applied the rationality test, in which it asked

whether there was a rational connection between the decision and the facts on which the decision was based.

The refusal of the application for amnesty by the Committee on the ground that the applicants had not made a

full disclosure was upheld on the facts.

In Camps Bay Ratepayers and Residents Association v Minister of Planning, Culture and Administration,

Western Cape 2001 (4) SA 294 (C) the Removal of Restrictions Act provided that the Minister may, on

application, remove restrictive conditions if he or she is ‘satisfied’ that it is desirable to do so in the interest of

the establishment or development of any township, or in the interest of the area or in the public interest.

Griesel J held that:

Unless the Minister is as a fact satisfied as to the presence of one or more of these circumstances, a

jurisdictional fact for the exercise of his powers to remove a condition is absent. And if he is subjectively

satisfied, this view is one which is susceptible to review if his conclusion was, objectively speaking,

unreasonable.

These last two cases show that in the constitutional era the distinction between subjective and objective

jurisdictional facts is effectively abrogated.

Hoexter discusses at length7 the aforementioned case of Pepcor Retirement Fund v Financial Services Board

2003 (6) SA 38 (SCA) under this heading, describing it as ‘something of a revolution in our administrative law’.

The gist of the judgment is that, even though PAJA had not been enacted when the dispute arose, the

Constitution itself demands the recognition of mistake of fact as a ground of review whenever the mistake is

material. Thus the Court here overturned what had been well-established law—as evidenced in Shidiack, SA

Defence and Aid Fund and certain High Court decisions post-1994—in terms of which courts could review

decisions for errors of fact only where the legislation allowed them to do so (most pertinently, by using

objective phrases). The Court also in effect abandons the notion of non-jurisdictional error: essentially, no

error can now be said to be in principle sheltered from review. Pepcor is therefore a strong endorsement by

the SCA of the spirit of the High Court judgments in Derby-Lewis and Camps Bay Ratepayers. It also matches

the reform in Hira v Booysen (see below) of the approach to errors of law.

The facts of Pepcor were described above, and it was noted that the Registrar of Pension Funds was seeking to

have his own decision set aside. The ground he relied on was that he had made a material mistake of fact, in

that he had made the transfer to the appellant on the basis of what turned out to be incorrect actuarial

information. Cloete JA wrote, having considered the English law position:

In my view a material mistake of fact should be a basis upon which a court can review an administrative

decision. If legislation has empowered a functionary to make a decision, in the public interest, the decision

should be made on the material facts which should have been available for the decision properly to be

made. And if a decision has been made in ignorance of facts material to the decision and which therefore

should have been before the functionary, the decision should … be reviewable … The doctrine of legality

which was the basis of the decisions in Fedsure, Sarfu and Pharmaceutical Manufacturers requires that the

power conferred on a functionary to make decisions in the public interest, should be exercised properly, i.e.

on the basis of the true facts; it should not be confined to cases where the common law would categorize

the decision as ultra vires … Whether a review should succeed in a matter such as the present will depend

on a consideration of the public interest in having the decision corrected and other factors, and in

7 Danwood did not mention Pepcor but Corder (and Hoexter) quite clearly think it is a milestone.

24

particular, the interests of the person in whose favour a decision has been made. Ultimately, a value

judgment, balancing all the relevant factors, will be required.

On this basis the decision was invalidated. The Court noted, however, the dangers created by this bold new

approach: with the category of non-jurisdictional mistakes of fact now effectively abandoned, courts must

show restraint and not blur, far less eliminate, the fundamental distinction between appeal and review.

Corder says he has always disliked the distinction between jurisdictional and non-jurisdictional errors. But

courts have desperately clung to the distinction because, by saying that an error goes to jurisdiction, they

make it a matter of lawfulness (rather than owning up to the fact that they essentially judging the decision to

be a bad one): if the error robs the administrator of jurisdiction, then he has overstepped the authority

conferred on him by law. In England, where the ultra vires doctrine remains the basis for all judicial review, the

need to stress the jurisdictional aspect is particularly obvious: every judicial intervention must be construed as

somehow rendering the exercise of public power in question as ultra vires. Since we have a clear constitutional

basis for judicial review of administrative action, there is no need for our courts to seek legitimacy by means of

the common-law ultra vires doctrine.

Although the Pepcor decision is described as ‘revolutionary’, the ‘failure to apply the mind’ ground of review

had historically been expanded by courts so as to allow them to achieve something rather similar. This was in

fact the basis upon which the court a quo in Pepcor had managed to reach the same result as the SCA. One

should also note the serious overlap between material mistake of fact (as applied in Pepcor) and review for the

consideration of irrelevant factors (or the failure to consider relevant factors), which we will discuss below.

Finally we return to the SARFU case. We have already discussed the one aspect of lawfulness that was raised

by the applicants, namely unlawful delegation. The applicants had raised another lawfulness-based argument:

SARFU argued that the Commissions Act, which lays down requirements for the creation of commissions of

inquiry, requires the subject matter of such commissions to be ‘of public concern’. It was argued that, since

the activities of SARFU did not raise matters of public concern, the President had, in appointing the

commission, committed a jurisdictional error of fact. In response to this argument the Court said the following:

In determining whether the subject matter of the commission's investigation is indeed a ‘matter of public

concern’, the test to be applied is an objective one. The legally relevant question is not whether the

President thought that the subject matter of the inquiry was a matter of public concern, but whether it was

objectively so at the time the decision was taken. Whether or not the matter is one of public concern is a

question for the courts to determine and not a matter to be decided by the President within his own

discretion. In this context, the Constitution requires that the notion of ‘public concern’ be interpreted so as

to promote the spirit, purport and objects of the Bill of Rights and to underscore the democratic values of

human dignity, equality and freedom.

On the facts, it was held that SARFU did regulate matters in the public interest and so no jurisdictional error of

fact had been made by the President. What is really crucial is that the Court was emphatic (as we would

expect, since this is a transparently objective standard) that the test is objective, and that it considered (again,

as we would expect from the Constitutional Court) the spirit, purport and object of the Bill of Rights in applying

the ‘public concern’ criterion.

25

(d) Errors of law

When do errors by administrators in interpreting the law lead to an invalidation of the pursuant decision?

Again there is a separation of powers problem, in that courts are reluctant to overstep their mandate and

pronounce on the merits of decisions. Moreover, interpreting the law is a difficult, subjective business and

thus, even though courts are the final authority on interpreting the law, administrators must at times be given

leeway in making their own interpretations. That is, not all errors of law should be corrected by courts. The

common law used a variety of different tests over the years to try and achieve the correct balance. These are

discussed in what follows—but note that the position is now governed by s 6(2)(d) of PAJA which specifically

allows for judicial review of administrative action which were ‘materially influenced by an error of law’.

The courts took the view for years that they could review an error of law if the error had prevented the

administrator from appreciating the nature of its discretion. Thus in Union Government (Minister of Mines

and Industries) v Union Steel Corporation (SA) Ltd 1928 AD 220 Stratford JA stated:

If a discretion is conferred by statute upon an individual and he fails to appreciate the nature of that

discretion through misreading of the Act which confers it, he cannot and does not properly exercise that

discretion. In such a case a court of law will correct him and order him to direct his mind to the true

question that has been left to his discretion.

Of course, the difficulty is that any error of law which the administrator makes in relation to his powers seems

to prevent his appreciating the nature thereof. If this is so, this test doesn’t provide any guidance in

determining which errors of law are reviewable and which are not.

To try and improve on this test, the courts began, following the English approach, to distinguish between

jurisdictional and non-jurisdictional errors of law. The question was thus whether the error was made by the

administrator in determining the limits or extent of its powers or whether instead it was merely an error made

in the course of deciding a matter which it had jurisdiction to decide. Only the former robbed the

administrator of jurisdiction and were reviewable. The latter were made in the course of the lawful exercise of

the administrator’s jurisdiction and as such the administrator was legitimately entitled to get them ‘wrong’. A

simpler way to put it is to say simply that such errors relate to the merits of decisions and are thus

unreviewable.

In Johannesburg City Council v Chesterfield House (Pty) Ltd 1952 (3) SA 809 (A) a compensation court was

empowered to determine ‘whether any person is entitled to compensation’ under the relevant legislation. The

applicant, who had been found to lack such entitlement, challenged the decision, arguing that the court had

wrongly interpreted the law. Centlivres CJ held, however, drawing on previous decisions of the Appellate

Division, that:

[The compensation court] was entitled to and bound to decide the legal issues involved and even if it came

to a wrong decision in law we cannot in review proceedings set its decision aside on that ground alone … I

must not be taken to suggest that the decision of the compensation court was wrong in law.

On the other hand, in Local Road Transportation Board v Durban City Council 1965 (1) SA 586 (A) the Board

had, as a result of mistakenly interpreting a directory provision as mandatory, declared certain certificates

void. This error caused the Board to dismiss an application for the renewal of the certificates. The error of law

26

therefore resulted in a failure to consider an issue which the Board was duty-bound to consider. The Court

held here that the error of law went to jurisdiction and was therefore reviewable.

Again, this distinction doesn’t really tell us much: When is an error of law jurisdictional or non-jurisdictional?

This is a very difficult question to answer and has led to inconsistent decisions. Our courts therefore

abandoned this test, as England had done in Re Racal Communications Ltd [1981] AC 374.

The new approach is best exhibited by Hira v Booysen 1992 (4) SA 69 (A). Two teachers had been convicted of

misconduct by an administrative tribunal for ‘publicly criticizing’ the Department of Education in a teachers’

association newsletter, i.e. a publication which was not in general circulation. The argument on review was

that this did not amount to ‘public criticism’ as required by the relevant legislation. Corbett CJ had to decide

whether, if the tribunal had indeed interpreted the legislation wrongly, this error was such as to render the

decision reviewable. The four guiding principles to be applied in this enquiry, held Corbett CJ, were the

following (the first two of these he took from the minority judgment of Jansen JA in the earlier case of Theron

v Ring van Wellington van die NG Sendingkerk in Suid-Afrika 1976 (2) SA 1 (A)):

(1) Where the complaint is that the tribunal has committed a material error of law, then the reviewability

of the decision will depend, basically, upon whether or not the Legislature intended the tribunal to

have exclusive authority to decide the question of law concerned. This is a matter of construction of

the statute conferring the power of decision.

(2) Where the tribunal exercises powers or functions of a purely judicial nature, as for example where it is

merely required to decide whether or not a person's conduct falls within a defined and objectively

ascertainable statutory criterion, then the Court will be slow to conclude that the tribunal is intended

to have exclusive jurisdiction to decide all questions, including the meaning to be attached to the

statutory criterion, and that a misinterpretation of the statutory criterion will not render the decision

assailable by way of common-law review. In a particular case it may appear that the tribunal was

intended to have such exclusive jurisdiction, but then the legislative intent must be clear.

(3) In cases where the decision of the tribunal is of a discretionary (rather than purely judicial) nature, as

for example where it is required to take into account considerations of policy or desirability in the

general interest or where opinion or estimation plays an important role, the general approach to

ascertaining the legislative intent may be somewhat different, but it is not necessary in this case to

expand on this or to express a decisive view.

(4) Whether or not an erroneous interpretation of a statutory criterion, such as is referred to in the

previous paragraph (i.e. where the question of interpretation is not left to the exclusive jurisdiction of

the tribunal concerned), renders the decision invalid depends upon its materiality. If, for instance, the

facts found by the tribunal are such as to justify its decision even on a correct interpretation of the

statutory criterion, then normally (i.e. in the absence of some other review ground) there would be no

ground for interference. [Otherwise], if applying the correct criterion, there are no facts upon which

the decision can reasonably be justified. In this latter type of case it may justifiably be said that, by

reason of its error of law, the tribunal ‘asked itself the wrong question’, or ‘applied the wrong test’, or

‘based its decision on some matter not prescribed for its decision’, or ‘failed to apply its mind to the

relevant issues in accordance with the behests of the statute’; and that as a result its decision should be

set aside on review.

So the fundamental enquiry is whether the legislature intended the decision to be reviewable for that error of

law. When the power is purely judicial in nature, there is a presumption that the decision will be reviewable

(and the presumption is probably different where the power is discretionary). It is this factor which makes

error of law a particularly important ground of review for administrative tribunals like the CCMA. And another

crucial factor is the materiality of the error to the nature and exercise of the power.

27

Interpreting the specific provision before the Court, Corbett CJ held that the offence created by the provision

impeded freedom of expression and as such must be interpreted restrictively. On such an interpretation, the

word ‘public’ could not be read to include articles written in newsletters with limited circulation. It followed

that the tribunal had made an error of law.

The next question was whether, applying the principles set out above, such an error rendered the tribunal’s

decision reviewable. The tribunal’s functions were of course purely judicial in nature (see 2 above), and

misinterpreting the offence they were applying was obviously highly material to their function as adjudicators

(see 4 above). Moreover, as regards the intention of the legislature (see 1 above), the tribunal did not have the

expert staff and rigorous procedures of an ordinary criminal court, but the consequences of their decisions

were very serious. Therefore the legislature could not have intended any errors of law by the tribunal to be

unreviewable.

Now that we’ve abandoned the Westminster system in favour of constitutional supremacy, how relevant is the

Hira v Booysen approach, which puts legislative intention in a preeminent position? There should surely be

some higher, constitutional standard that is applied nowadays. PAJA s 6(2)(d) says that a decision is

reviewable if it was ‘materially influenced by an error of law’, suggesting that the key standard is the

materiality or the error.

Nevertheless, Corbett CJ’s outstanding judgment remains highly influential and continues to set the tone for

our courts’ attitude to the review of mistakes of law. Many writers say that Hira v Booysen still has a role to

play in interpreting this provision. Currie argues that even though we don’t have parliamentary sovereignty we

do still have the separation of powers as a fundamental principle; and therefore courts must, as before, show

restraint and accept that other branches of State have some role to play in interpreting the law. De Ville also

argues for judicial restraint, adding that there is no single ‘right answer’ to statutory interpretation and that a

suitably qualified administrator may be able to interpret the law as well as a judge. In essence, he says that the

Hira v Booysen factors should be used to decide which level of scrutiny to apply: rationality, reasonableness, or

correctness. So, for example, if the administrator is very well qualified and is interpreting discretionary powers

then a court should only set aside the decision if the mistake of law is irrational. Danwood says, however, that

this approach is overly complicated and confuses lawfulness with rationality and reasonableness. Ultimately

what is important is to remember that post-1994 the approach to errors of law must not be a simple matter of

legislative intention, but judges must nevertheless have a suitably deferential attitude.

In Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province 2008 (2)

SA 481 (SCA)8 we see PAJA s 6(2)(d) being applied. There was a tender offered in Limpopo for the removal and

disposal of hazardous medical waste. A complicated web of statutory requirements governed the tender

process. MWM had filled in all the necessary documents necessary to apply for the tender, but then they

forgot to append their signature before submitting. The Tender Board therefore threw out their application for

non-compliance with the formalities. Ultimately the tender was awarded to another consortium, which began

performing under the tender contract. MWM then applied for the judicial review of the Board’s decision,

saying it was procedurally unfair to disqualify it summarily for such a trivial mistake. The Court (somewhat

strangely) ends up deciding the matter by using lawfulness arguments (in particular, mistake of law) and does

much more than simply require the giving of a hearing. That is why the case is discussed under lawfulness.

8 Danwood did not discuss this case at all. It was discussed (in some detail) by Corder when he took over in the fourth term. It is a

prescribed case and Corder clearly thinks it is important (though more for remedies than for this lawfulness aspect).

28

The first question was whether the Board’s representatives who had screened the applications had even had

lawful authority to condone non-compliance with the formalities. If not, the argument that it was procedurally

unfair of them not to do so would have been hopeless: the Board would not lawfully have been able to do

what MWM was asking them to do. There was indeed case law suggesting that the representatives had had no

lawful authority to condone non-compliance with the formalities, but Jafta JA distinguished these precedents

and held that the Board had been lawfully entitled to condone non-compliance.

The next question was the following: Did MWM’s tender, absent a signature, ‘comply with the specifications

and conditions of tender as set out in the tender document’, as required by the applicable legislation on public

procurement? On a literal reading of the provision, it did not seem to comply. But Jafta JA held that if the

legislation was construed in light of the Constitution, especially the requirement in s 217 that our system of

tendering be fair, equitable, transparent, competitive and cost-effective, the provision ‘cannot be given its

wide literal meaning. It certainly cannot mean that a tender must comply with conditions which are

immaterial, unreasonable or unconstitutional’. On this basis, it was held that MWM’s tender was compliant

with the legislation notwithstanding the absence of the signature. It followed, according to Jafta JA, that the

decision to reject the tender was ‘materially influenced by an error of law’, a failure to construe the applicable

legislation correctly. In other words, the Board had mistakenly thought that the legislation prohibited the

acceptance of unsigned tender applications; in fact, the legislation did not do so. The decision was therefore

reviewable under s 6(2)(d) of PAJA.

The remaining difficulty was how to provide relief for this unlawful decision. The first problem was that the

other consortium had been performing under their tender contract for several months by the time judgment

was given. The second was that the public needed the waste-removal services to continue uninterrupted. As a

result, the Court had to be quite creative and gave a complicated set of instructions to the Board. This aspect

of the decision is discussed below (in the remedies section).

4 Abuse of discretion

Now we discuss cases where, even though the administrator was lawfully authorized to exercise his power and

had jurisdiction to do so in the manner and circumstances that he did, he is nevertheless abusing those

powers. There are a number of ways in which he may do this:

(a) advancing an ulterior purpose

(b) acting in bad faith

(c) taking into account an irrelevant consideration or not taking into account a relevant one

(d) failing to act

(e) fettering his discretion

(f) acting arbitrarily

(g) failing to apply his mind

(a) Ulterior purpose

This ground of review is explicitly recognised by PAJA ss 6(2)(e)(i) and (ii): An administrative action may be

reviewed if the action was taken ‘for a reason not authorized by the empowering provision’ or ‘for an ulterior

purpose or motive’.

29

The purpose advanced needn’t be sinister or hidden. It could even be a noble one. The point is simply that it

must be one that is not authorized by the empowering provision. This point was made by Corbett JA in

Goldberg v Minister of Prisons 1979 (1) SA 14 (A):

In this context ‘ulterior motive’ does not necessarily connote a sinister motivation: it can relate simply to

the case where, for instance, a person or body vested by statute with the discretionary power uses it for a

purpose not expressly or impliedly authorised by the statutory enactment.

The rule is intended to ensure that parliamentary intention is fulfilled: powers must be exercised for the

purposes set out by Parliament.

In Van Eck NO v Etna Stores 1947 (2) SA 984 (A) the Director was empowered to seize foodstuffs to ensure

compliance with wartime regulations. One of the Director’s sub-delegates then seized some rice from the

applicant in order to use it in a food redistribution program. The Court held that this was a good motive (to

help the needy) but not one authorised by the law (which only allowed the seizure of foodstuffs to check

whether the wartime regulations were being complied with).

In University of Cape Town v Minister of Education and Culture 1988 (3) SA 203 (C) UCT challenged the

Minister’s decision to impose certain conditions upon the granting of subsidies to it. In terms of these

conditions UCT had to prevent, punish, and notify the Minister of any incidents of unrest or disruption on its

campuses. UCT argued that these conditions were ultra vires s 25 of the Universities Act, which conferred

regulatory powers on the Minister ‘with regard to the general requirements of higher education’. The full

bench of the High Court agreed, saying that the conditions did not relate to the welfare of higher education

but were instead matters of law and order.

In Highstead Entertainment (Pty) Ltd t/a 'The Club' v Minister of Law and Order 1994 (1) SA 387 (C), the

applicant was accused of having contravened the Gambling Act by carrying on a business as an entertainment

club where a game of chance was played. An interdict was sought by the applicant to prevent the State, acting

under the search warrant it had obtained, from seizing any of its equipment or arresting its employees. In

granting the interdict, the Court stated that the purpose of a search warrant was the procurement of articles

which it was reasonably believed might be of use in proving a criminal case. As the State had already seized

such articles, there was no need for it to procure any further articles. In other words, it was held that, although

the sheriff was authorised by the search warrant to procure articles, this could only be done in furtherance of

a particular purpose.

Clearly this ground overlaps with bad faith and the consideration of irrelevant factors.

(b) Bad faith

This ground of review is explicitly recognised in PAJA s 6(2)(e)(v). It allows for the invalidation of an

administrative action taken fraudulently or dishonestly, for a purpose other than the one the administrator

claimed to be serving, or out of spite or personal vendetta.

Again, note the clear overlap between it and ulterior purpose and the consideration of irrelevant factors.

30

This was a disputed ground of review pre-1994; some writers thought that it was superfluous and that cases

supposedly decided on the basis of bad faith were actually relying on some other ground. It certainly was true

that courts would prefer to rely on other, ‘objective’ grounds of review rather than impugn the integrity of the

administrator by deciding that he had acted in bad faith. It is also true that where the administrator has acted

in bad faith his decision will almost invariably be assailable on other grounds too. And, finally, it is true that

bad faith, because it is subjective, is hard to prove and therefore difficult to rely on. Hoexter argues in any

event that it is useful as a separate ground of review to punish fully the most severe cases of administrative

conduct. Anyway, any remaining doubt about whether it is a standalone ground of review is removed by PAJA

s 6(2)(e)(v).

There isn’t any recent case law to show how the section applies, but we can consider Waks v Jacobs 1990 (1)

SA 913 (T). In this case, the second respondent had relied on the Reservation of Separate Amenities Act to

declare the parks in certain white areas to be whites-only parks. The reason given for this declaration was the

‘black nuisance’ in the parks. The applicant argued however that this declaration was in fact politically

motivated and unrelated to any attempt to deal with any risks posed by black people. The Court agreed,

holding inter alia that the administrator’s decision was so unreasonable that no reasonable person could have

made it and that therefore it must have been made in bad faith. (As previously noted, bad faith and

reasonableness review used to be intertwined, with the latter treated as a symptom of the former.)

(c) (Not) considering a(n) (ir)relevant consideration

This ground of review is explicitly recognised in PAJA s 6(2)(e)(iii). The idea is that the law in terms of which the

action was taken requires consideration of certain factors (and only of those factors), and if those factors are

not considered (or other factors are considered) the administrator will have acted unlawfully.

The problem with this ground of review is that it can be very hard to discern the factors of which the law

allows or requires consideration. It often overlaps with errors of law, because an administrator might consider

the wrong factors because he has misinterpreted the empowering legislation, i.e. he wrongly thinks that the

law requires consideration of those factors. There is also considerable overlap with ulterior purpose, because if

an administrator’s decision is based on an inappropriate factor then it is quite likely that it will also have been

motivated by an ulterior purpose.

A further problem is the familiar separation of powers problem: the administrator will frequently have a

legitimate role to play in deciding which factors ought to be considered and what weight should be attached to

each. Under the common law, judges were reluctant to correct administrator’s decisions in this regard, or even

denied that this was a ground of review. See for example Hefer JA in Minister of Law and Order v Dempsey

[1988] 2 All SA 278 (A):

In order not to substitute its own view for that of the functionary, a court is, accordingly, not entitled to

interfere with the latter's decision merely because a factor which the court considers relevant was not

taken into account, or because insufficient or undue weight was, according to the court's objective

assessment, accorded to a relevant factor. A functionary's decision cannot be impeached on such a ground

unless the court is satisfied, in all the circumstances of the case, that he did not properly apply his mind to

the matter.

Such enquiry is more legitimate now because PAJA recognises this ground of review. Nevertheless judges will

surely tend to show deference, depending on the administrator’s skills, the nature of the power, and so on.

31

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC), for

example, the relevant Act had about twelve factors to be considered in the allocation by the Minister of fishing

quotas, including nebulous ones like the transformation of the fishing industry and highly technical ones like

the sustainability of fish stocks. The applicants, who were denied a quota, challenged the decision on the basis

of the alleged failure to consider transformation sufficiently. The Constitutional Court was unwilling to set the

decision aside, though, saying that the decision was extremely policy-laden and complicated, and that the

Minister accordingly has a legitimate discretion to choose which factors to emphasize and so on. As we know,

the Court’s deferential attitude (and indeed other aspects of the case) has been heavily criticised.

One must look at the relevant legislation to see the factors which must be considered, but one must look also

at the Constitution. This is what emerged from the case of Patel v Minister of Home Affairs 2000 (2) SA 343

(D). The applicant was an Indian man with a South African wife. He had been living in South Africa on a visitors

permit, and when that expired he applied for a work permit, which was refused. He was deported so he snuck

back into South Africa on a stolen visa. When he was arrested and again made liable for deportation he

challenged the initial refusal to grant the work permit, saying that his wife and two children were in South

Africa, that his right to family was infringed, that his children’s constitutional rights under s 28(1)(b) needed to

be considered, and some other boring wank. The Court held that he had made out a prima facie case that

certain relevant considerations—sourced in the Constitution—had not been considered, so his deportation

was interdicted.

In Logbro Properties CC v Bedderson NO [2002] ZASCA 135 (which we’ve encountered before, in first

semester)9 the KwaZulu-Natal provincial government had awarded a tender for the sale of a valuable piece of

property in Richards Bay. Logbro, one of the rejected tenderers, successfully had the award invalidated by a

court on the grounds that the accepted offer did not comply with the tender conditions. When the tender

committee reconvened to award the tender anew, Logbro’s bid for the property was now the highest. But,

because of the increase in the value of property in the Richards Bay area since it had last convened, the

committee decided to call for completely new tenders (rather than simply award it to Logbro). As far as

lawfulness is concerned, the case raises the issue of review for the administrator’s having considered an

irrelevant factor. The case was not actually argued in these terms, but that is what it amounts to: the question

was whether the Board had acted legitimately in having considered the increase in property prices. It was held

that the increase in prices was indeed relevant and so the Board had acted lawfully; it had not considered

anything irrelevant.

(d) Failure to act

This was not a ground of review under the common law but it is now expressly recognised in PAJA s 6(2)(g).

The details of relying on this ground are provided in s 6(3). Essentially the applicant must prove that:

1. the administrator had a duty to take a decision (not merely a power); and

2. he failed to take the decision within the required time, that is:

a. if a time period is stipulated in the law during which a decision must be taken, the decision

was not taken within that time period, or

b. if no time period is stipulated, the decision was not taken within a reasonable time.

9 In his lectures on the prescribed cases for second semester, Corder went into great detail on Logbro. He basically repeated everything

he’d said about the case in first semester. I’ve not repeated it all here, but pay special attention to that part of the first semester notes.

32

In Mahambehlala v MEC for Welfare, Eastern Cape 2002 (1) SA 342 (E) the applicant waited for seven months

without response for a social grant application. Leach J held that this was an unreasonable delay in processing

such an application and the respondent had therefore acted unlawfully. The determination of whether the

delay is unreasonable must obviously depend on the facts of each case, considering the nature of the decision,

resource constraints, and so on.

In Noupoort Christian Care Centre v Minister of National Department of Social Development 2005 (10) BCLR

1034 (T) the applicants had applied for a license to run a drug treatment centre, and argued that there had

been an unreasonable delay in getting a response. The Court agreed that the administrator’s allowing the

matter to ‘drag on indefinitely’ was unlawful, and found for the applicant.

In such cases the court will normally order the administrator to make a decision.

(e) Fettering discretion

This ground of review is not expressly included in PAJA but it could obviously be included in the catch-all s

6(2)(i).

o Fettering by rigidity

The general rule is that an administrator may not fetter his own future discretion. The reason is that he will

then be unable to exercise that discretion judiciously, in light of all the circumstances. The whole point of

giving administrators discretion, after all, is to ensure that they do not apply the law rigidly. But, on the other

hand, certainty and consistency are fundamental virtues of the rule of law. Moreover, administrators do need

to take steps to increase efficiency. It therefore may be desirable for an administrator to formulate rules or

guidelines in terms of which he will take decisions. The challenge is to strike the correct balance between

arbitrariness and rigidity. This point was made in Richardson v Administrator, Transvaal 1957 (1) SA 521 (T):

A person who has a statutory duty to exercise his discretion in matters affecting the interests of others, may

use as a guide principles of policy which assist him in attaining uniformity where uniformity is desirable …

And it may evolve general, guiding principles to assist it in speedily, fairly and wisely deciding each conflict.

But, of course, those guides must not develop into hard and fast rules which preclude the person exercising

the discretion from bringing his mind to bear in a real sense on the particular circumstances of each and

every individual case coming up for decision … As it is usually put, he must not fetter his discretion with

inflexible, preconceived ideas.

Because of the difficulty in clearly distinguishing these situations, this is a difficult ground of review to rely

upon.

In Britten v Pope 1916 AD 150 the applicant had been refused official consent to sell his wholesale liquor

license. The reason was that he had wanted to sell it to another wholesaler, who already had such a license.

The licensing court had ruled against such sales, because it feared that this was anticompetitive. The

administrator in charge of issuing the licenses had adopted this precedent as a rule in its own decision-making.

The applicant argued that this amounted to an unlawful fettering of its discretion. Innes CJ recognised that

reference to some sort of general principle or policy is sometimes inevitable, and indeed ‘some such reference

would seem to be necessary to the intelligent exercise of the administrative discretion’. However, he added,

the decision-maker must be alert to any features of the case which might justify a departure from a policy or a

33

precedent. In this case Innes CJ found that this had been done; the administrator had applied the precedent of

the licensing court but had not done so blindly.

In Kemp NO v Van Wyk 2005 (6) SA 519 (SCA) Nugent JA reasserted these principles:

A public official who is vested with a discretion must exercise it with an open mind but not necessarily a

mind that is untrammelled by existing principles or policy. In some cases the enabling statute may require

that to be done, either expressly or by implication from the nature of the particular discretion, but generally

there can be no objection to an official exercising a discretion in accordance with an existing policy if he or

she is independently satisfied that the policy is appropriate to the circumstances of the particular case.

What is required is only that he or she does not elevate principles or policies into rules that are considered

to be binding with the result that no discretion is exercised at all. Those principles emerge from the decision

of this court in Britten v Pope 1916 AD 150 and remain applicable today.

The idea is that the administrator must apply his mind to each decision. He is not entitled to apply rules

mechanically; he must consider individual cases afresh, albeit possibly with some rules or guidelines in mind

when he does so. There is nothing wrong with a predetermined policy, provided its application to each case is

properly considered. Thus in Ynuico Ltd v Minister of Trade and Industry 1995 (11) BCLR 1453 (T) Van

Dijkhorst J stated:

Our law requires that an official to whom a discretion has been granted must apply his mind to the matter…

[But it does not follow] that he is not entitled after due deliberation to lay down a general policy that

certain categories of applicants or certain cases will or will not qualify and pass the initial sifting process.

Obviously where there are exceptional circumstances individual cases have to be considered afresh, but as

a general proposition I cannot fault the application of a predetermined policy, provided it has been properly

considered.

In the allocation of fishing quotas, with so many different, wide-ranging factors, some of which are in tension

with one another, and numerous applications to be processed, courts have been sympathetic to the use of

predetermined criteria to ensure consistency. In Bato Star (see above) O’Regan J commented as follows:

In cases such as the present [where the decision-maker is seeking to evaluate a large number of

applications] it will be permissible, and indeed will often be desirable, for administrative decision-makers to

adopt and apply general criteria evenly to each application to ensure that the decision subsequently made

is fair and consistent.

In Minister of Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd 2005 (6) SA 182 (SCA)10

Scott JA said that reliance on a system of scoring applicants against certain criteria was ‘objective, rational and

practical in the circumstances’. The Court reasoned that consistency was imperative in this type of case, and

noted that provision had been made for adjustment whenever the criteria and weighting were inappropriate

for any reason.

o Fettering by contract

An administrator might also fetter his discretion by contracting with another person and thus binding himself

to comply with that contract even if it means constraining his future decisions.

10 Mentioned in Hoexter but not by Danwood.

34

The general rule is that contracts which fetter an administrator’s discretion are unenforceable. The problem

with having a strict rule against fettering by contract, though, is that it leads to uncertainty which is

detrimental to anyone who contracts with the State. More to the point, in modern governance the State

contracts thousands of times a year, and every contract has the potential to constrain its future decision-

making in some way.

In SARFU it was held:

Although there is some uncertainty as to the precise ambit of the principle that a public authority cannot,

by contract, fetter the exercise of its own discretion, there is little doubt that a public authority cannot

enter into a contract which is wholly incompatible with the discretion conferred upon it.

There was a contract between SARFU and the Minister of Sport in terms of which the Minister promised that

there would be no commission of inquiry until the government task team had investigated the matter. But, in

light of the fact that there was a constitutional power to appoint commissions of inquiry, this contract was

held to be ‘wholly incompatible’ with that discretion and therefore invalid and incapable of binding the State.

The upshot is that this is the test our courts now use: Is the contract wholly incompatible with the conferred

discretion? However, some writers say that in truth the enquiry is simply a matter of weighing up the

respective interests involved (rather than looking at the compatibility of the contract and the power as such).

One of the difficulties with this rule is how to compensate the person whose contract has now been annulled.

Where the legislation which renders the contract unenforceable was enacted after the contract was

concluded, the private contracting party can get compensation in accordance with the rules on expropriation.

Generally, courts must make an order that is ‘just and equitable’ as per PAJA s 8(1).

o Fettering by promise

It is also possible that the administrator makes a promise or assurance (falling short of a contract, obviously)

that he will decide a matter in a particular way. If he complies with this assurance he will obviously be fettering

his discretion. But the assurance potentially gives rise to a defence of estoppel: the person who received the

assurance might argue that the administrator is estopped from acting contrary to that assurance. So, on the

one, hand it is naughty for an administrator to fetter his discretion by complying with the assurance; on the

other, it is naughty for him to not comply with it. The law needs to somehow mediate this tension.

In Collector of Customs v Cape Central Railways Ltd (1889) 6 SC 402 it was held that in fact a person cannot

rely on estoppel where doing so would fetter administrative discretion. The Premier had assured the

respondent that it could import cement without paying a customs duty, but then the Collector of Customs

sued to claim such duties. The respondent raised estoppel based on the assurance it was given. The Court held

that such a defence could not operate because it would fetter the administrator’s discretion. Put in different

terms, the administrator’s purported abandonment of his power to levy the duties was unlawful.

In Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd 2001 (4) SA 661 (W) Burochowitz J

suggested that estoppel may be inconsistent with a culture of justification and the value of reasonable public

administration. However, the doctrine may still be constitutionally justified: as it seeks to protect the principle

of certainty, it is rooted in the rule of law doctrine, which is a fundamental constitutional principle.

35

The general rule is that a party cannot raise estoppel against the State where doing so will inhibit it from

exercising its lawful powers. An assurance will not have this effect where:

the law at issue is directory, not mandatory;

the assurance was made intra vires, i.e. it does not contravene the empowering provision; or

the assurance merely contravenes an internal procedure, rather than a legal procedure.

An assurance by an administrator may also—in addition to the question of estoppel—create a legitimate

expectation which may then give rise to an action (based on procedural fairness) if the administrator does not

comply with the assurance. This creates the same tensions as estoppel.

(f) Arbitrariness

This ground of review is explicitly recognised in PAJA s 6(2)(e)(vi). It means taking a decision without any

reason at all. In Johannesburg Liquor Licensing Board v Kuhn 1963 (4) SA 666 (A), it was held that arbitrariness

‘connoted caprice, or the exercise of the will instead of reason or principle, without consideration of the

merits’. In Woolworths Pty Ltd v Whitehead [2000] ZALAC 4, it was held that arbitrariness denotes ‘the

absence of reason, or at the very least, the absence of a justifiable reason’.

Obviously there is overlap with rationality and reasonableness: acting arbitrarily is the very definition of

unreasonableness. It also overlaps with ulterior purpose and bad faith.

(g) Failure to apply the mind

‘Failure to apply the mind’ used to be a blanket term for all abuses of discretion, and that is how Hoexter uses

the term in her textbook. It is not mentioned in PAJA, which reflects a similar attitude. In Johannesburg Stock

Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132 (A) Corbett JA noted the overlap between this ground of

review and arbitrariness: he said that where an official decides a matter arbitrarily he can be said to have

failed to apply his mind to the matter. In fact, failure to apply the mind overlaps with several other grounds of

review.

But some writers have argued for its independent recognition because of its elasticity. A recent application of

this principle is to be found in Littlewood v Minister of Home Affairs [2005] ZASCA 10, where the SCA set

aside the decision of the Minister of Home Affairs rejecting Littlewood’s application to be exempted from

deportation. Littlewood’s residence permit was discovered to be false, and as such he stood to be deported.

But he applied for the exemption because he hadn’t known that his permit was false. In refusing the

applications, the Minister based his decision on the fact that possession of a fraudulent residence permit was a

serious offence. Thus he failed to consider and apply his mind to the real question before him, that is, whether

the exemptions could have been granted in the unique circumstances of the case.

36

PROCEDURAL FAIRNESS11

1 Introduction

The next broad basis upon which an administrative action can be challenged is that it was procedurally unfair.

As our courts constantly point out (and PAJA states), what procedural fairness requires is highly variable and

always depends on the context. Generally, procedural fairness tries to ensure that people get an opportunity

to participate in decisions which affect them, thus promoting participation and democratic values, increasing

the legitimacy of those decisions, and hopefully improving their quality. At the same time, courts must not

burden administrators with unduly onerous procedural requirements and thus open the floodgates of judicial

review litigation.

There are two distinct questions which we need to consider when we study procedural fairness: Firstly, when

does procedural fairness apply? Secondly, if it does apply, what is its content? We must be careful not to

conflate these distinct questions. Hoexter argues that its application should be expanded, i.e. it should be

relevant in more instances, but its content limited, i.e. it should impose less onerous requirements on

administrators when it does apply.

We also need to bear in mind that our administrative law has gone through different phases: the common law

phase, where procedural fairness was dealt with under the principles of natural justice; the Interim

Constitution phase, with s 24 regulating administrative justice; the final Constitution phase, with s 33

regulating administrative justice and PAJA not yet enacted; and finally the post-PAJA phase. Again, we must be

careful to differentiate these—again, doing so in terms of both the application and the content of procedural

fairness—and bear in mind the phase to which any given case relates.

It is important to note that, as we said in first semester, the principle of legality does not (yet) cover

procedural fairness. This means that, where procedural fairness is at issue, the question of whether or not

PAJA applies is even more significant than normal: if it does not, one is probably not going to be able to get

any procedural fairness protections at all. For the same reason, PAJA is—despite all the rude things we’ve said

about it previously—a very helpful ally in this particular area.

The rule against bias is an aspect of procedural fairness, but it is not mentioned in the detailed procedural

fairness sections of PAJA.12 We must therefore be guided by the case law here, including pre-PAJA case law.

2 The common law

(a) Introduction

Under the common law, natural justice was sometimes required. The idea was that some very fundamental

principles of justice are part of the ‘natural law’ and must thus be read as entailed by any legal system. The

two principles of natural justice were:

11 My team and I felt that Kerry’s organisation of this topic was unhelpful, so I’ve substantially reworked it. There is now just one section on each of the three eras (rather than first an overview of each and then a detailed account of each), and I have taken all the stuff on bias out of each era’s section and put it into one standalone section at the end. I also added subheadings to try and signpost the discussion better and indicate the significance of each case. 12 Bias is mentioned to be a ground of review (see s 6(2)(a)(iii)), but no further guidance is provided.

37

audi alteram partem (‘hear both sides’), i.e. the right to a hearing; and

nemo iudex in sua causa (‘no one may be judge in his own cause’), i.e. the rule against bias.

Of course, under the common-law system of parliamentary sovereignty there was no possibility for

constitutional review. Therefore judges could not regard these principles as coming from some source superior

to legislation. To give effect to them, therefore, judges had to read them in as presumptions of statutory

interpretation. Thus it was presumed that any legislation tacitly included the principles of natural justice,

unless the legislation expressly or impliedly excluded them.

Having this relatively open-ended, judge-made approach actually had some benefits (even if the classification

of functions approach and ultra-conservative apartheid legal culture prevented these benefits from being

realized in practice). Firstly, it allowed judges to be flexible in applying procedural fairness; they were able to

consider what was required in the circumstances of each case. Secondly, there was the possibility that the

principles of natural justice could be developed into a general duty to act fairly. This is exactly what happened

in the UK and Canada. Judges in those jurisdictions could theorize freely about what fairness required in each

case, allowing them to build societies with procedural fairness as a fundamental value. If our common law had

been left to its own devices, this is very likely what would have happened here.

When did the principles of natural justice apply at common law? The brief summary, before we go through the

cases in detail, is:

Before Traub, natural justice applied where liberty, property or existing rights were affected by a

quasi-judicial decision.

After Traub, natural justice applied where liberty, property, existing rights, or legitimate expectations

were affected by a quasi-judicial decision.

After SA Roads Board, natural justice applied where liberty, property, existing rights, or legitimate

expectations were affected by a quasi-judicial decision or a legislative decision.

Quite obviously, there is a trend towards wider application of procedural fairness. Indeed, towards the end of

the common-law period there was the emergence of a general duty to act fairly (as described above). The

reference to ‘quasi-judicial’ and ‘legislative’ decisions is based on the classification of functions approach.13

Before considering these progressive cases which emerged just before 1994, it is worth reflecting briefly on

how fucking kak apartheid was. In first semester, we saw that in Sachs v Minister of Justice; Diamond v

Minister of Justice 1934 AD 11 Stratford ACJ gleefully held, while struggling to conceal his rock-hard apartheid-

boner: ‘Sacred though the maxim [audi alteram partem] is held to be, Parliament is free to violate it’. This

obscenely deferential attitude to Parliament largely persisted until 1994, although at least in time there came

to be a presumption against the exclusion of the maxim. As can be seen in the summary above, the

classification of functions approach restricted the application of procedural fairness to quasi-judicial decisions.

The apartheid government cynically exploited this, sometimes deliberately constructing their decision as a

legislative-type action so as to evade the requirements of procedural fairness.

13 Both Traub and SA Roads Board rejected the classification of functions approach, so the references there to ‘quasi-judicial’ and ‘legislative’ decisions seem misplaced. However, Kerry says that the classification of functions approach has since been revived and is sometimes used by courts.

38

(b) Traub and Roads Board

Now we cover in detail some of the seminal cases which broke out of this conservative, executive-minded

mold. Administrator, Transvaal v Traub 1989 (4) SA 731 (A) was a landmark in our pre-constitutional

administrative law. The respondents were doctors at Baragwanath Hospital. Concerned about the

discriminatory funding of black hospitals (such as Baragwanath), the respondents signed a public letter

criticizing the responsible authorities and describing the conditions at the hospital as inhumane. When the

respondents later applied for a seemingly-routine promotion, their applications were rejected by the Director

of Hospital Services, even though they had been approved by their respective heads of department. It later

emerged that the reason they were rejected was because they had signed the letter. After he’d made the

decision, the Director did discuss the matter with the Administrator and spoke to some representatives of the

hospital staff—not the respondents themselves—but he did not change his decision. The respondents

challenged the Director’s decision on the grounds of procedural fairness, in that they were not given a hearing.

They were successful in the High Court before Goldstone J, who set aside the decision having found that the

doctors’ rights (!) were affected.

Corbett CJ, writing for the Appellate Division, held that it could not be said that the respondents had a right to

be promoted. This meant that in terms of the existing law, i.e. the rule that procedural fairness is required only

where liberty, property or existing rights were affected, the respondents had no case. However, Corbett CJ

turned to the concept of legitimate expectations. Following a lengthy discussion of English administrative law,

where the concept was developed, Corbett CJ describes legitimate expectations as follows:

It is clear from these cases that in this context ‘legitimate expectations’ are capable of including

expectations which go beyond enforceable legal rights, provided they have some reasonable basis.

Quoting an English case, Corbett CJ notes two recognised circumstances in which legitimate expectations may

arise:

Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public

authority or from the existence of a regular practice which the claimant can reasonably expect to continue.

Corbett CJ later on explains the inconsistency in using the term:

[T]he legitimate expectation doctrine is sometimes expressed in terms of some substantive benefit or

advantage or privilege which the person concerned could reasonably expect to acquire or retain and which

it would be unfair to deny such person without prior consultation or a prior hearing; and at other times in

terms of a legitimate expectation to be accorded a hearing before some decision adverse to the interests of

the person concerned is taken.

Corbett CJ decides the crucial issue in the case thus:

The question which remains is whether or not our law should move in the direction taken by English law

and give recognition to the doctrine of legitimate expectation, or some similar principle. The first footsteps

in this direction have already been taken in certain Provincial Divisions … Should this Court give

its imprimatur to this movement; or should it stop the movement in its tracks?

…

There are many cases where one can visualise in this sphere – and for reasons which I shall later elaborate I

think that the present is one of them – where an adherence to the formula of ‘liberty, property and existing

39

rights’ would fail to provide a legal remedy, when the facts cry out for one; and would result in a decision

which appeared to have been arrived at by a procedure which was clearly unfair being immune from

review. The law should in such cases be made to reach out and come to the aid of persons prejudicially

affected.

Having accepted the doctrine of legitimate expectations, however, Corbett CJ immediately warns of its

difficulties:

Like public policy, unless carefully handled it could become an unruly horse. And, in working out,

incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it

does not, the Courts will, no doubt, bear in mind the need from time to time to apply the curb. A

reasonable balance must be maintained between the need to protect the individual from decisions unfairly

arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding

undue judicial interference in their administration.

The question was then whether the respondents had any legitimate expectation in this case. In answering this

question, the appellants argued that regard must be had to the classification of functions approach. Having

previously noted that English law had abandoned this approach, and that various criticisms had been

expressed by South African judges and legal academics, Corbett CJ said:

In short, I do not think that the quasi-judicial/purely administrative classification, relied upon by counsel, is

of any material assistance in solving the problem presently before the Court.

Looking at the matter without the strictures of the classification of functions approach, Corbett CJ described

‘certain distinctive features’ of the present case which meant that the respondents did have a right to be

heard. Firstly, the promotion is an ‘essential rung’ in a doctor’s career, so being refused it has very serious

consequences. Secondly, and more importantly, is that there was a ‘practice which existed for decades’ in

terms of which the Director would always grant the promotion, as a mere formality, where the doctor had

been recommended by his immediate superior. It was held that these circumstances were sufficient to create

a legitimate expectation and thus a right to be heard.

The only remaining argument that Corbett CJ had to deal with was the appellants’ claim that in fact a hearing

had been given—albeit after the decision to refuse the promotion was made—and that this was sufficient to

realise the right to procedural fairness. It is true that our courts had previously accepted that a hearing after

the decision could be sufficient. But Corbett CJ was not sympathetic to the appellants’ argument:

Generally speaking, in my view, the audi principle requires the hearing to be given before the decision is

taken by the official or body concerned, that is, while he or it still has an open mind on the matter. In this

way one avoids the natural human inclination to adhere to a decision once taken … Exceptionally, however,

the dictates of natural justice may be satisfied by affording the individual concerned a hearing after the

prejudicial decision has been taken … This may be so, for instance, in cases where the party making the

decision is necessarily required to act with expedition, or where for some other reason it is not feasible to

give a hearing before the decision is taken.

This was clearly not such an exceptional or urgent decision. But Corbett JA makes clear that he would have

found against the Director even if it had been, because the ‘hearing’ which occurred after the decision was not

acceptable: none of the respondents was personally present, those who were present were not authorized to

act on the respondents behalf, and it had not even been disclosed by then why the respondents had been

40

denied the promotion. Being told of the reason for the decision, says Corbett JA, is a requirement of a fair

hearing.

So with these last points we get a sense of the contents of procedural fairness, as opposed to when it applies

(which is what the preceding part of the judgment deals with). Of particular interest are, firstly, the rules on

giving a hearing after the decision, and, secondly, the implication that one can’t give meaningful

representations until one knows the reasons for the decision. Hoexter goes wild for the judgment because,

instead of concerning himself with formalistic tests, Corbett CJ asks the obvious, important and open-ended

question: Does fairness require the giving of a hearing in this case?

In South African Roads Board v City Council of Johannesburg 1991 (4) SA 1 (A) the Roads Board had erected a

tollgate on a highway in the Johannesburg area, but without consulting the City Council, in whose jurisdiction

the road fell. The toll discouraged drivers from using that road, forcing them to instead use other roads in the

area. This meant the Council had to do extra maintenance of and patrols on these other roads. Moreover, the

Council had recently spent R10m upgrading the interchange on the road which was now being tolled. The

Council argued that they had a legitimate expectation and a right to be heard before the toll was initiated. The

Board argued however that their decision did not affect the Council’s rights, liberty or property, and that in

any event this was a legislative decision and so the Council could have no such right to be heard. The Council

succeeded in the High Court, prompting the Roads Board to appeal.

Before the Appellate Division, Milne JA began by ‘emphasizing certain developments’ which had recently

occurred in this area of law. Both developments occurred in Traub and both relate to the broadening of the

circumstances in which the principles of natural justice apply. Firstly, the doctrine of legitimate expectations

was introduced, adding a significant new trigger for the applicability of the principles of natural justice.

Secondly, the Court has rejected the classification of functions approach, which had previously been used to

seal off altogether certain categories of administrative decision from the reach of the principles of natural

justice. So our law’s ultra-conservative approach has been replaced with a much more flexible and

accommodating one.

This was bad news for the Roads Board, which had invoked the classification of functions approach in reliance

on one of the Appellate Division’s most widely criticized, executive-minded decisions of the apartheid years,

Pretoria City Council v Modimola 1966 (3) SA 250 (A). Here the applicant had challenged the expropriation of

his property under the Group Areas Act. In rejecting the applicant’s challenge, Botha JA had said the following:

In those statutes, for example, where a public authority is authorised to take a decision prejudicially

affecting the property or liberty of the members of a whole community, e.g. to levy taxation on them or

their property, or to restrict their movements, no principle of natural justice is violated by a decision taken

under the statute without affording an opportunity to every individual member of the community to be

heard before the decision, which obviously prejudicially affects his property or liberty, is taken. In exercising

its powers under such an enactment, the public authority is guided solely by what is best for the community

as a whole, and the peculiar conduct or circumstances of any individual member of the community is a

completely irrelevant consideration.

So it was essentially this reasoning—in terms of which procedural fairness has no application whatsoever to

legislative administrative action—that the Roads Board was relying on here. But of course Milne JA did not

look favorably on the classification of functions approach as a way of deciding whether or not the principles of

natural justice applied. Instead, he proposed a ‘more rational foundation’ for this decision: a distinction must

be drawn between (a) statutory powers which affect equally the members of the community at large, and (b)

41

statutory powers which, while possibly also having a general impact, are likely to cause particular prejudice to

an individual or group of individuals. In exercising powers of type (a), administrators would not be required to

give hearings to those affected. In exercising powers of type (b), administrators must give a hearing to

prejudicially-effected parties unless the statute indicates otherwise. Milne JA suggests that his distinction does

to a significant extent coincide with the distinction between legislative and judicial administrative actions, but,

crucially, the coincidence is not total. So the Court replaced the classification of functions approach with a

more subtle distinction relating to the range of persons affected by the decision. This distinction anticipates

the one later created in PAJA (see below)—although where Milne JA adopts a non-interventionist attitude in

cases of type (a), PAJA s 4 lays down significant procedural fairness requirements.

On the facts, the Appellate Division held that the decision to impose the toll was of type (b): an individual legal

persona, namely the Council, had its rights and property affected: the toll was being imposed in its jurisdiction

and it had now wasted its money upgrading the interchange. (This is a slightly strange understanding of rights.

We nowadays treat rights more technically and would probably say the Council had a mere interest here.) This

meant it had a right to be heard, unless the legislation excluded the principles of natural justice—which, it was

held, it did not.

(c) The implications for our administrative law14

Now we discuss certain cases which show how Traub and Roads Board were harnessed to develop a more

accommodating and flexible approach to procedural fairness just prior to our administrative law’s being

revolutionized by the Constitution and PAJA.

The next case is Claude Neon Ltd v Germiston City Council 1995 (3) SA 710 (W).15 When this case was decided

there was a lot of enthusiasm for Traub and the developments in natural justice that it had prompted. Claude

Neon had been supplying the Council with streetlights for ten years, but in terms of new-era legislation the

Council said that it now had to go to tender to decide who would supply it in the future. Claude Neon begged

for a continuation of the existing deal, but the Council refused. One of their officials did say, however, that he

would be sure to notify the company when the tender documents were ready so that it could collect them. But

Claude Neon was in fact never contacted (the Council claimed the notification was sent to the wrong fax

number), and so it missed the opportunity to submit a tender bid. The tender was eventually awarded to

another company. Claude Neon challenged the Council’s actions by saying that it had a legitimate expectation,

created by the official’s assurance, to be informed of the release of the tender documents.16 The argument

was ultimately upheld, meaning the tender was revoked and the whole process begun anew.

Zulman J’s reasoning is fucking stupid: he says there was a contract between the parties, created by the

promise, which was administrative action. This conflates contract and legitimate expectations. It is also very

artificial to say that the official who made the assurance was engaged in administrative action: for one, he was

definitely not implementing legislation. Zulman J should’ve decided the matter simply by saying that the award

of the tender was administrative action (which is well established in our law); there must therefore be

14 Here I’ve reordered the cases quite substantially. Now they appear chronologically. I just felt that this made them fit together better. 15 In both Claude Neon and Tseleng (the next case) the respective judges cursorily noted that the Interim Constitution’s right to administrative justice had been breached. But the substance of their reasoning is very common-law-oriented, and that is why we discuss them both in this section. 16 Kerry said that this showed that the applicant was asking for a substantive remedy, not a procedural one. Although clearly they are not asking for a hearing as such, I think it is very misleading to say this was a substantive remedy. They definitely aren’t asking for the court to step into the administrator’s shoes and make a particular decision about who gets the tender.

42

procedural fairness in such award; and, in these circumstances, where a promise had been made, procedural

fairness required that the applicants be notified of the process. So ignore what the stinky judge actually said

and think of his reasoning in these terms!

Another good case example is Tseleng v Chairman, Unemployment Insurance Board 1995 (3) SA 162 (A). In

this case the applicant was unemployed and was receiving unemployment benefits from the respondent. But

he wanted to apply for further funds. There was a section on the application form asking what efforts he’d

made to get work. He did show that he had applied for work, but did not provide specific evidence that he had

done so while receiving his initial benefits. The Board rejected Tseleng’s application in accordance with their

policy of only giving additional funds to those applicants who had actively sought work while receiving the

initial benefits. Tseleng challenged this decision inter alia on the grounds that he was entitled to be informed

of this policy. The Court upheld this argument:

Perhaps the policy is a sound one, but if a statutory body considers that such a consideration is so material

as of itself to determine the fate of an application, then it should at the very least afford an applicant the

opportunity of dealing with its difficulty and not keep the policy to itself … To hold otherwise would be to

countenance injustice, since persons who might otherwise be fully able to justify their application would be

deprived of the opportunity of doing so.

In short, then, administrators must disclose to those affected the policies in terms of which they are making

their decisions. This seems like a natural implication of procedural fairness—because only if he knows the

criteria by which he is being judged can a person make appropriate representations—but it was quite an

innovative decision at the time.

The next case is Foulds v Minister of Home Affairs 1996 (4) SA 137 (W), which exploited the rule in Tseleng in

a slightly different context. Foulds was an engineering specialist from the UK who applied for permanent

residence in South Africa under the Aliens Control Act. He had had permanent residence some years

previously, but it had lapsed due to his absence from the country. The Immigration Board refused his

application on the basis of information they had received from Foulds’s previous employer which was ‘adverse

to the applicant’s application’ but ‘which had not been disclosed to the applicant and in respect of which the

applicant had not been given an opportunity to reply’. He argued that this was procedurally unfair.

Streicher J decided that he could dispose of the matter by relying on the common law, and he therefore

ignored the provisions of the Interim Constitution. Applying the deprivation theory, the judge held that ‘*t+he

decision not to grant the applicant a permanent residence permit merely preserved the status quo’ and

therefore could not be said to affect the applicant’s rights. (If Streicher J had applied the Constitution he

could’ve simply relied on the term ‘threatened’ and dealt with the matter quickly.) But Streicher J applied an

expansive notion of legitimate expectations:

The legitimate expectation principle evolved in order to make the grounds of interference with the

decisions of public authorities which adversely affect individuals co-extensive with notions of what is fair

and what is not fair in the particular circumstances of the case … The extent of the duty to act fairly will vary

greatly from case to case. Not only a regular practice followed in the past, but also the nature of

the decision and the relationship of those involved before the decision was taken are relevant in

determining the extent of the duty.

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It was held that in the circumstances it was unfair not to notify the applicant of or take representations in

regard to the adverse documents upon which the Board was grounding its decision. Streicher JA reasoned by

analogy to the Tseleng case: in the same way that procedural fairness requires the disclosure of a policy which

might detrimentally affect the applicant, so does it require the disclosure of information which has such an

effect. The fact that the information had not been disclosed to Foulds meant that the decision had to be set

aside.

Foulds is a nice illustration of the major developments which were occurring in our administrative law around

this time. The application of Tseleng relates to what procedural fairness requires. But we can also see that the

doctrine of legitimate expectations effected a sea change in the determination of when procedural fairness

applies.

We can also see from the quotation above that the doctrine of legitimate expectations is intertwined with the

duty to act fairly, which Kerry mentioned previously. This duty was given an important restatement in SARFU.

As we have noted previously when discussing the facts of this case, there had been an assurance by the

executive that they would not appoint a commission of inquiry until its task team had completed their own

investigation into the matter. SARFU had argued that this assurance created a legitimate expectation, and thus

a right to be heard before the commission was appointed. Responding to this argument, and after citing Traub,

the Constitutional Court held:

Indeed, any such expectation could not in the circumstances of this case have been considered to be

legitimate, giving rise to a right to be heard by the President. The question whether an expectation is

legitimate and will give rise to the right to a hearing in any particular case depends on whether in the

context of that case, procedural fairness requires a decision-making authority to afford a hearing to a

particular individual before taking the decision. To ask the question whether there is a legitimate

expectation to be heard in any particular case is, in effect, to ask whether the duty to act fairly requires a

hearing in that case. The question whether a ‘legitimate expectation of a hearing’ exists is therefore more

than a factual question. It is not whether an expectation exists in the mind of a litigant but whether, viewed

objectively, such expectation is, in a legal sense, legitimate; that is, whether the duty to act fairly would

require a hearing in those circumstances.

So we see firstly the importance of requiring that any expectation be legitimate. And secondly, we see once

again that the doctrine of legitimate expectations was being melded into a flexible duty to act fairly.

Unfortunately PAJA has overtaken these developments, as courts are now forced to engage with the

numerous technical phrases used in that legislation and are bound by the straitjacket of its provisions. This has

meant that the continued judicial development of a general duty of fairness has been foreclosed.

3 The Constitution

(a) The provisions

Section 24(b) of the Interim Constitution reads:

Every person shall have the right to procedurally fair administrative action where any of his or her rights or

legitimate expectations is affected or threatened.

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Note the threshold requirement: one only has a right to procedural fairness if one’s rights or legitimate

expectations are affected or threatened.

Section 33 of the final Constitution reads:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given

written reasons.

(3) National legislation must be enacted to give effect to these rights …

Note that there is no threshold requirement now for procedural fairness (see s 33(1)), which marks quite a

change from the Interim Constitution. To have a right to reasons specifically, however, one’s rights must have

been adversely affected.

These thresholds raise the debate between the deprivation and determination theories. In terms of the

former, one’s rights are ‘affected’ only where one is deprived of existing rights. In terms of the latter, one’s

rights are ‘affected’ wherever they are being determined. So for example having an application rejected would

not pass the deprivation theory threshold but would pass the determination theory threshold.

They also raise the difference between interests, legitimate expectations and rights. It is obviously hardest to

show that one has a right, and easiest to show one has an interest. ‘Legitimate expectation’ is a technical term

developed in our common law which falls somewhere between the two. It is important that by the end of this

topic we can differentiate in our minds these three categories, and think of examples of each.

Another change from the Interim Constitution is that now there is a requirement that the right to

administrative justice be legislatively enabled (which is of course what gave rise to PAJA, with its extensive

procedural fairness requirements which we discuss below).

We may wonder whether the rule against bias is included in s 33. Some argue that it must be, essentially

because there is nowhere else in the Constitution where it could plausibly be accommodated. Either way, the

fact that it is not expressly grounded in any provision is possibly a good thing, because it will allow for flexible,

judicial development.

The enactment of the Constitution unsurprisingly represents a watershed. But, as we’ve previously noted, it is

not necessarily a positive trend as far as procedural fairness is concerned. The common law had developed a

generous and contextual approach to procedural fairness, with the threshold test having been significantly

lowered. But the enactment of the Constitution took us back to square one, as courts now have to rely on its

provisions rather than the existing common-law jurisprudence, and have to try and recreate the generous

approach from this new starting point. Obviously PAJA has, since its enactment, greatly constrained them in

their attempts to do so.

(b) General case law

The first key case is Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151

(CC), which we have encountered before. There was a flood in Alexandra township which displaced hundreds

of residents. A government crisis committee was established, and, following internal consultations, it was

decided to house the floods victims temporarily on vacant public land quite close to the Kyalami residents. The

45

residents formed an association and challenged the decision. It was challenged on two grounds: lawfulness,

which we discussed above; and procedural fairness, in that the residents were not given a chance to make

representations before the camp was established.

We can immediately see that these are highly unfavourable facts to try and develop an expansive notion of

procedural fairness: basically some rich, selfish cunts are trying to obstruct the provision of emergency relief

for a massive group of destitute people. This case is the paramount example of the fears which many people

had about administrative law in 1994, namely that it would be used by the wealthy and powerful to derail the

government’s attempts to build a more equitable society.

Anyway, the residents grounded their demand for procedural fairness by saying that the establishment of the

camp ‘will affect the character of the neighbourhood and reduce the value of their properties’. The

Constitution’s right to procedurally fair administrative action applies only ‘where any of their rights or

legitimate expectations is affected or threatened’.17 The residents did not rely on legitimate expectations but

in fact argued their rights were being affected. Chaskalson P held that a lowering of property values—even

assuming that it really would occur—did not amount to a right being affected. This seems fairly

uncontroversial to us now. But remember that in SA Roads Board the fact that the Council had wasted its

money and would have to spend more money because of the imposition of the toll did in fact amount to the

infringement of a right. Courts have become much more technical and astute in construing rights since SA

Roads Board was decided.

Anyway, Chaskalson P was prepared to assume that the residents did have an interest which was being

affected, and further that the constitutional right to procedural fairness could apply where there was a mere

interest. In other words, he was assuming (very charitably) that procedural fairness did apply, and so he was

able to decide on its content. In this regard, Chaskalson P stressed that where there are competing interests

then the Constitution requires proportionality:

Where as in the present case, conflicting interests have to be reconciled and choices made, proportionality,

which is inherent in the Bill of Rights, is relevant to determining what fairness requires. Ultimately,

procedural fairness depends in each case upon the balancing of various relevant factors including the

nature of the decision, the “rights” affected by it, the circumstances in which it is made, and the

consequences resulting from it.

The interests at issue in the present case were, on the one hand, a snooty, affluent community’s desire to keep

poor people the fuck away from them, and, on the other, the need for the government to act quickly in an

emergency situation to fulfill a destitute community’s constitutional right to housing. Taking representations

from all interested parties would’ve delayed unacceptably the provision of disaster relief. The site chosen was

perfect for this task, and was one of the few suitable locations in the Alexandra area. Although it would’ve

been desirable for the government to notify the residents before they began building the camp, the failure to

give a hearing to them could not in the circumstances be said to render their decision invalid. The Court

therefore held that the stinky rich cunts must fuck off and burn in the fires of Hell.

The next case is Janse van Rensburg v Minister of Trade and Industry 2001 (1) SA 29 (CC), which we’ve

encountered very briefly before. It raises the issue of whether and when procedural fairness must be read into

legislation. The Minister had used the Unfair Business Practices Act to suspend the second appellant’s business 17

Remember that even at this late stage the Interim Constitution’s right applied, because of the strange suspension of the final Constitution’s administrative justice right pending the enactment of PAJA.

46

and attach its assets pending an investigation into whether it was engaged in unfair business practices. The

appellants challenged the constitutionality of the provisions in terms of which the Minister had acted, saying

that they were inconsistent with the right to procedurally fair administrative action. The High Court found the

provisions to be unconstitutional because they did not allow for the affected parties to be heard before action

was taken against them.

On appeal, it was noted first of all that the challenge had been brought during the tricky interregnum when it

was debatable whether the Interim or final Constitution applied to matters of administrative justice,18 but

Goldstone J held that it did not matter because the two were in all relevant respects the same.

The provisions under which the Minister had acted did not give the subject of the investigation any right to a

hearing before action against it was taken. However, the Minister argued, in a desperate attempt to save the

legislation, that the constitutional right to procedural fairness must be read into the Act and as such the giving

of a hearing was implicitly required. Goldstone J rejected this argument, however, saying:

These powers ensure that during the period of investigation … the persons subject to that investigation are

prevented from continuing the allegedly unfair practices, and alienating or hiding assets in order to defeat

prospective claims by or on behalf of members of the public … By its very nature it must be an urgent and

incisive procedure if it is to have the desired effect. If notice is given to the person or persons against whom

the section is to operate, the purpose of the action under the section will more than likely be frustrated. It

follows that if the section were to be read as requiring the hearings referred to by counsel for the Minister,

the whole purpose of the provision would be defeated. The section is accordingly not reasonably capable of

the construction that the Minister’s counsel seeks to place on it.

Goldstone J was prepared to assume that the Act’s basic purpose was legitimate, i.e. it was reasonably

necessary to create this urgent procedure to suspend the person’s business and seize its assets. But the way in

which this had been done—giving extremely robust, unconstrained powers to the Minister—was inconsistent

with the constitutional right to procedurally fair administrative action:

[O]ne of the enduring characteristics of procedural fairness is its flexibility. The application of procedural

fairness must be considered with regard to the facts and circumstances of each case. In modern states it has

become more and more common to grant far-reaching powers to administrative functionaries. The

safeguards provided by the rules of procedural fairness are thus all the more important, and are reflected in

the Bill of Rights. Observance of the rules of procedural fairness ensures that an administrative functionary

has an open-mind and a complete picture of the facts and circumstances within which the administrative

action is to be taken. In that way the functionary is more likely to apply his or her mind to the matter in a

fair and regular manner.

… *A+s this Court has already held *in Dawood], the constitutional obligation on the legislature to promote,

protect and fulfil the rights entrenched in the Bill of Rights entails that, where a wide discretion is conferred

upon a functionary, guidance should be provided as to the manner in which those powers are to be

exercised. The absence of such guidance, together with the cumulative effect of the other features [of the

provision+, render the procedure provided … unfair and a violation of the protection afforded by section

33(1).

18

See the discussion in first semester if you are confused. Basically, the final Constitution said that until PAJA was enacted the Interim Constitution continues to apply to administrative justice. PAJA was then enacted, but it was not in force, so it was not clear what to do.

47

So the unguided powers conferred on the Minister meant the provision was procedurally unfair and therefore

unconstitutional. This is surprising, because normally the fact that a discretion is unduly wide is a matter for

lawfulness—and indeed Danwood used this case as authority in discussing lawfulness. Nevertheless, we see

that actually the nature of the discretion is being used as a factor relevant to procedural fairness.

(c) Case law on legitimate expectations

The first case under this heading is Premier, Province of Mpumalanga v Executive Committee of the

Association of Governing Bodies of State Aided Schools: Eastern Transvaal 1999 (2) SA 91 (CC). The issue was

that discriminatory, apartheid-era policies on school subsidies were still being applied in Mpumalanga. The

Premier had to decide how to fix things. His department told the respondent association that the subsidies

would still be distributed until at least the end of the year, while he decided what to do. But then in August of

that year he decided to terminate the subsidies with retrospective effect. The respondent association

challenged the Premier’s decision on grounds of procedural fairness, relying on s 24(b) of the Interim

Constitution. Although the Premier had entertained comments from interested parties, it was found on the

facts that he had not considered their submissions in making his decision.

O’Regan J held that it was not necessary to decide whether the association had any rights affected, because it

clearly did have a legitimate expectation (and thus would cross the relevant threshold). In justifying this

finding, O’Regan J discussed the development of the doctrine of legitimate expectations. As Corbett CJ

recognised in Traub, English law recognised two circumstances in which a legitimate expectation could arise:

1. from an express promise given on behalf of a public authority, or

2. from the existence of a regular practice which the claimant can reasonably expect to continue.

So a legitimate expectation can arise where the previous conduct of an official has given rise to an expectation

that a particular procedure will be followed before a decision is made. However, O’Regan J understood Traub

to recognize a legitimate expectation also where:

3. a person enjoys an expectation of a privilege or a benefit of which it would not be fair to deprive him

or her without a fair hearing

She noted finally that it was stated in Traub that the expectations themselves can be of two kinds: they may be

either substantive, i.e. an expectation that a particular decision will be made, or procedural, i.e. an expectation

that a hearing will be given. O’Regan J expressed no opinion on the confusingly similar issue of whether a

legitimate expectation (of whatever nature) can prompt a court to give substantive rather than merely

procedural relief.

On the facts, the association could obviously point to the assurance that had been communicated to them. But

it is always nice to have something else on which to base one’s expectation, especially because it can be hard

to impute the promise made by one official to the whole organ whose action one is challenging. Anyway, in

this case there clearly were other factors pointing strongly towards a legitimate expectation: the schools had

been getting the subsidies for many years; they had incurred debts on the expectation that the money would

be forthcoming; and the government’s annual budget allocated enough money for the subsidies to be paid

out.

O’Regan J held that if the Premier wanted to terminate the subsidies prospectively all that this legitimate

expectation required of him would be to give reasonable notice. But the fact that he was now terminating

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them retrospectively meant at the very least that he had to afford the schools an effective opportunity to

make representations (in fact O’Regan J suggested obiter that it may be unfair to retroactively terminate

benefits no matter what procedures are followed). Therefore the Premier’s termination of the subsidies was

held to be invalid.

A point to note here is how determining the ‘legitimacy’ of any expectation requires a very broad-based

reasonableness enquiry in which one can make a multitude of arguments. In this case, for example, a creative

advocate could have played up the effect the subsidy policy was having on the impoverished black schools and

argued that it was illegitimate to expect them to be continually deprived of the subsidy money.

Premier, Mpumalanga was referred to extensively in Permanent Secretary of the Department of Education of

the Government of the Eastern Cape Province v Ed-U-College (PE) (Section 21) 2001 (2) SA 1 (CC).19 This case

involved similar facts: the applicants were challenging the decision by the provincial government to allocate

subsidies to schools. But here the government was not retrospectively withdrawing funds which it had

previously promised; the applicant was simply saying that it wanted to be heard before the government’s

prospective subsidy policies were formulated. The Court did not therefore consider it appropriate to apply

Premier, Mpumalanga and conclude on the basis thereof that the applicants had been treated procedurally

unfairly. Rather, it remitted the matter to the High Court so that it could hear new evidence so as to determine

whether a legitimate expectation really existed on these more equivocal facts.

In South African Veterinary Council v Szymanski [2003] ZASCA 11 the doctrine of legitimate expectations was

given quite a conservative interpretation by the SCA. Mr Szymanski was a Polish vet who wanted to practice in

South Africa. To do this he needed to pass an exam set by the appellant. The information he was sent prior to

sitting the exam said (supposedly) that he needed to get 40% to pass it. He ended up failing the exam because

the pass mark was actually 50%. He claimed that he had aimed to get just over 40%, on the understanding that

that was all he needed. Thus he challenged the Council’s decision by saying that its conduct had given him a

legitimate expectation that he would, having gotten 40%, be registered as a vet. The High Court had found in

his favour and ordered the Council to register him.

On appeal to the SCA, Cameron JA was far more skeptical. He noted first of all that the inference Szymanski

had drawn from the information he was given was dubious: it had merely said that the sub-minimum for each

section of the exam was 40%. Secondly, he said it was ‘by no means clear’ that a legitimate expectation can

found substantive relief (as Szymanski was claiming). Thirdly, and most importantly, Cameron JA stated four

requirements for an expectation to be ‘legitimate’:

1. The representation underlying the expectation must be clear, unambiguous and devoid of relevant

qualification.

2. The expectation must be reasonable.

3. The representation must have been induced by the decision-maker.

4. The representation must be one which it was competent and lawful for the decision-maker to make.

On the facts, it could not be said that the representation that the pass mark was 40% was clear and

unambiguous, nor was the expectation in Szymanski’s mind reasonable.

19 This case was not discussed by Kerry but was discussed by Corder. It was hard finding somewhere useful to insert his discussion. I ultimately split up the case into its two main issues (definition of administrative action and the trigger for procedural fairness). The first I put in first semester with SARFU, and the second I put here.

49

Kerry says that the very specific requirements laid down in this case show that procedural fairness is becoming

less flexible. You now need quite strong facts if you are to establish a right to procedural fairness.

She also says that the lawfulness requirement (see 4 above) is particularly interesting. On the one hand, where

a person has suffered because an administrator claimed he could do something which he lawfully could not

do, that person seems to be very deserving of relief. On the other hand, any order which a court makes to try

and provide such relief will probably amount to the implementation or sanctioning of illegality: the applicant is

essentially going to be asking that the administrator be forced to comply with his representation, i.e. to do

something unlawful. Because of this tension, numerous foreign jurisdictions have debated whether to require

any legitimate expectation to be based on an unlawful representation. Those jurisdictions have generally

tended to be more flexible and equitable than Cameron JA’s approach here. For example, in the English case of

R v North and East Devon Health Authority, ex parte Coughlan (2000) All ER 850 an old woman had

reluctantly moved into an old-age home, having been assured that she would be given a home for life. But the

old-age home was later closed down. The Court basically stopped the home from being closed down, on the

basis of the legitimate expectation that had been created. This is a remarkable move towards not only

sanctioning unlawful representations but also providing substantive (rather than procedural) relief on the basis

thereof. South African law is way too concerned with the rule of law to let this sort of thing happen.

(d) Multi-stage decision-making: Brenco

The last constitutional case we discuss is Chairman: Board on Tariffs and Trade v Brenco [2001] ZASCA 67.

Brenco was an American company who sold axle bearings in South Africa. Timken, another bearing

manufacturer, laid a complaint against Brenco for ‘dumping’, i.e. importing low-cost goods to developing

markets in which the other suppliers cannot reasonably compete. The Board investigated the matter in terms

of the Board on Tariffs and Trade Act. The process was that there would first be an investigation by the Board,

including the hearing of representations from all interested parties; secondly, a report would be given to the

Minister of Trade and Industry, who would on the basis of the report advise the Minister of Finance whether

to impose anti-dumping duties; and thirdly the Minister of Finance would, if advised to do so, impose those

duties. Brenco’s lawyers came up with five things to moan about:

1. The Board had confidential information which it did not disclose to Brenco.

2. The Board had acquired additional information from Timken which was not given to Brenco.

3. It was unfair that Brenco was not privy to the consultations between the Board and its investigating

directorate.

4. The Board visited Timken’s place of business during the investigation, and this was an irregularity.

5. Brenco was given no right to reply to the allegations that were made in the report about its

dishonesty.

We have encountered many similar arguments before, but here we see them manifest on new facts. It is also

important to see how procedural fairness arises in the context of a multi-stage administrative process like this

one.

Zulman JA for the SCA said that there were two administrative functions involved here: an investigative

function and a deliberative function. And two different standards of fairness apply: in the deliberative stage

the persons affected have a right to know the substance of the case they must meet; but in the investigative

phase all that is required is that the official doesn’t act vexatiously or oppressively towards the subjects of the

investigation. On the facts it was held that once the recommendation was made to the Minister his discretion

50

was so narrow that there was no need for a hearing. It was therefore the investigation—and the lower fairness

standard—that was at issue.

As to the grounds raised by Brenco:

1. It was procedurally fair to withhold the confidential information. Summaries were given so as to keep

Brenco informed but not reveal what was confidential.

2. The additional information given to the Board was merely an answer to Brenco’s own questions, and

anyway Brenco could not say—having now seen the information—why it was material that it be given

it earlier.

3. It was perfectly fair for the Board to consult internally to get further advice.

4. It was quite normal and in line with international investigative practice for the investigators to talk to

the parties. Investigations need not be conducted with the distanced impartiality of judicial matters.

5. The report simply noted that Brenco had made inconsistent statements in their submissions to the

Board. It was legitimate for the Board to note this. No inappropriate insinuations were made.

(e) Legal representation as an element of procedural fairness: Hamata

In Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee (1) [2002] ZASCA 44 the

applicant had told the Mail & Guardian untrue shit about the Technikon, allegedly knowing it to be false. He

was brought before an internal disciplinary committee. The relevant Rules made no allowance for legal

representation before the committee; at best the applicant could be represented by a member of staff.

However, on review the SCA held that it was at least sometimes a constitutional requirement to allow legal

representation:

There has always been a marked and understandable reluctance on the part of both legislators and the

courts to embrace the proposition that the right to legal representation of one’s choice is always a sine qua

non of procedurally fair administrative proceedings. However, it is equally true that with the passage of the

years there has been growing acceptance of the view that there will be cases in which legal representation

may be essential to a procedurally fair administrative proceeding … Awareness of all this no doubt accounts

for the cautious and restrained manner in which the framers of the Constitution … have dealt with the

subject of legal representation in the context of administrative action. In short, there is no constitutional

imperative regarding legal representation in administrative proceedings discernible, other than flexibility to

allow for legal representation but, even then, only in cases where it is truly required in order to attain

procedural fairness.

There may be administrative organs of such a nature that the issues which come before them are always so

mundane and the consequences of their decisions for particular individuals always so insignificant that a

domestic rule prohibiting legal representation would be neither unconstitutional nor be required to be

“read down” (if its language so permits) to allow for the exercising of a discretion in that regard. On the

other hand, there may be administrative organs which are faced with issues, and whose decisions may

entail consequences, which range from the relatively trivial to the most grave. Any rule purporting to

compel such an organ to refuse legal representation no matter what the circumstances might be, and even

if they are such that a refusal might very well impair the fairness of the administrative proceeding, cannot

pass muster in law.

PAJA was not yet in force, but Marais JA noted that in light of the constitutional position it was ‘no surprise’

that PAJA s 3(3) gives administrators a discretion to allow legal representation for parties before it. The point is

that both under the constitutionalized common law and under PAJA legal representation is sometimes a

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requirement of procedural fairness. What is obvious is that any blanket rule which purportedly compels the

administrator to refuse legal representation in all circumstances and irrespective of its effects would be

unlawful. Discretion must be exercised each time an administrative tribunal receives a request for legal

representation.

On the facts, it was held that Hamata did need to be given legal representation: he was raising a complicated

defence based on the right to freedom of expression, and as such he needed the benefit of legal expertise.

4 PAJA

(a) The legislation

Obviously PAJA is now what is absolutely essential in practice. And of course we must not ignore what its

procedural fairness provisions actually say. A distinction is drawn between administrative action affecting ‘any

person’ (s 3) and administrative action affecting ‘the public’ (s 4).

Section 3(1) states the basic rule for when procedural fairness is required:

Administrative action which materially and adversely affects the rights or legitimate expectations of any

person must be procedurally fair.

Note once again the threshold requirement: one only has a right to procedural fairness if one’s rights or

legitimate expectations are materially and adversely affected. This obviously entails showing that the

administrative action has had a certain effect on an individual (unlike s 4: see below).

More interestingly, the threshold requirement completely contradicts PAJA’s definition of administrative

action in s 1. According to s 1, administrative action has occurred only where it adversely affects the rights of a

person. So, on the one hand, one gets no protection from PAJA whatsoever unless ones rights have been

adversely affected. According to s 3, on the other hand, one has a right to procedural fairness under PAJA even

if one’s rights weren’t affected (but one’s legitimate expectations were). This internal inconsistency has had to

be addressed in the case law, which we will discuss below.

Assuming the s 3(1) threshold is passed, i.e. procedural fairness is required, what is its content? That is what

the rest of s 3 addresses. Section 3(2)(a) states:

A fair administrative procedure depends on the circumstances of each case.

This is good because it allows for necessary flexibility. Section 3(2)(b) nevertheless lays down certain

mandatory minimum requirements, things which an administrator ‘must’ provide to any person who crosses

the threshold:

(a) adequate notice of the nature and purpose of the proposed administrative action;

(b) a reasonable opportunity to make representations;

(c) a clear statement of the administrative action;

(d) adequate notice of any right of review or internal appeal, where applicable; and

(e) adequate notice of the right to request reasons …

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So despite all its critics PAJA does do some useful stuff and imposes these very helpful requirements on

administrators in all cases. The open-ended words (‘adequate’, ‘reasonable’, ‘clear’) will need to be

interpreted in context. There are some tricky issues which must be dealt with: for example, how does one give

‘adequate notice’ to, or allow for the making of representations by, illiterate people?

Although it is said that the above requirements ‘must’ be met, there is an exemption clause in s 3(4)(a):

If it is reasonable and justifiable in the circumstances, an administrator may depart from any of the

requirements referred to in subsection (2).

Section 3(4)(b) provides a list of factors to make the determination whether such departure is reasonable and

justifiable: the nature and effect of the administrative action, the urgency of taking it, and so on. Suppose, for

example, that an administrator has to revoke the passport of a suspected criminal who is about to flee the

country. It will obviously be reasonable and justifiable in these circumstances for the administrator not to

notify the person affected.

In fact, there is a further exception to the rule that an administrator ‘must’ follow these procedures, created

by s 3(5):

Where an administrator is empowered by any empowering provision to follow a procedure which is fair but

different from the provisions of subsection (2), the administrator may act in accordance with that different

procedure.

Obviously this ‘fair but different’ exception must never be read so as to allow unscrupulous administrators to

escape their duties.

Turning now to the section on administrative actions affecting the public at large, s 4(1) states:

In cases where an administrative action materially and adversely affects the rights of the public, an

administrator, in order to give effect to the right to procedurally fair administrative action, must decide

whether—

(a) to hold a public inquiry in terms of subsection (2);

(b) to follow a notice and comment procedure in terms of subsection (3);

(c) to follow the procedures in both subsections (2) and (3);

(d) where the administrator is empowered by any empowering provision to follow a procedure which

is fair but different, to follow that procedure; or

(e) to follow another appropriate procedure which gives effect to section 3.

So here the threshold is that the public’s rights must have been materially and adversely affected. The

‘legitimate expectations’ possibility is now absent. We see that the administrator is given significant flexibility

here to decide what to do. Again, such flexibility ought never to allow administrator’s to escape their duty to

act fairly.

Subsections (2) and (3) contain the requirements to be followed when holding a public inquiry and/or a notice

and comment procedure. These requirements are quite onerous. For example, the administrator must in both

cases ‘compile a written report’, ‘give reasons for any administrative action taken’, publish a summary of the

report, and tell the public how they can access the full report. All of these provisions are completely innovative

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because under the common law there were no rules whatsoever for dealing with administrative actions

affecting the public generally. So, again, PAJA is not all bad.

Once again there is an exemption where it is ‘reasonable and justifiable in the circumstances’ to depart from

these requirements: see s 4(4).

One of the issues with ss 3 and 4 is that it is not always clear which to apply: Does the action affect more than

one person? What if it affects a range of people but not quite the ‘public’ in general? Importantly, ‘public’ is

defined in s 1 to include ‘any group or class of the public’. In other words, it doesn’t have to affect the public as

a whole. But how many people constitute a ‘group’ or ‘class’? And how do the sections interact? It seems a bit

unreasonable to say that an administrator must comply strictly with both of these. For example, if a notice and

comment procedure has been held under s 4, then must every person who is individually affected still be given

notice under s 3?

PAJA excludes ‘interests’ from s 3 and both ‘interests’ and ‘legitimate expectations’ from s 4. Hoexter says this

is a deliberate attempt by the legislature to limit the application of procedural fairness due to the burden it

would otherwise place on the administration. But it would be preferable, she says, to avoid these highly

technical terms which act as obstacles to the application of procedural fairness. Instead, procedural fairness

should be widely applied. But its content should be highly variable—and, in appropriate circumstances, quite

limited—to strike the right balance between fairness and administrative efficiency.

(b) Case law

The first relevant case is Zondi v MEC for Traditional and Local Government Affairs [2004] ZACC 19,20 a case

we discussed in first semester. In terms of apartheid-era legislation, farm animals in KwaZulu-Natal which

strayed onto another’s land could be impounded and ‘destroyed’ without a hearing and without the Pound

being under any serious obligation to find out who the owner was. The legislation was basically a pernicious

measure adopted by the apartheid government to allow white landowners to harass the black farmers in the

area who of course had so little land that their cattle would inevitably stray onto adjacent white-owned land.

Ngcobo J duly has a heart-rending wank about the need to ‘cleanse the statute books’ of such legislation.

He then turns specifically to the argument raised by the applicant relating to procedural fairness, and sets out

the correct approach to such a constitutional challenge. The first fundamental question is of course whether

the legislation can be read consistently with the Constitution. But, importantly, the legislation must, in

answering this question, be read together with PAJA:

PAJA was enacted pursuant to the provisions of section 33, which requires the enactment of national

legislation to give effect to the right to administrative action. PAJA therefore governs the exercise of

administrative action in general. All decision-makers who are entrusted with the authority to make

administrative decisions by any statute are therefore required to do so in a manner that is consistent with

PAJA. The effect of this is that statutes that authorise administrative action must now be read together with

20 What Currie said about this in first semester is very different to what Kerry says about it here (never mind the mystifying account Corder gave of it in first semester lectures). What I’ve written here is largely based on what Kerry said, and I think she seems to be most correct. The short summary is: Kerry thinks Zondi is authority for the supplementation thesis (see especially first quotation given above). Currie thinks it is authority against his supplementation thesis (because Ngcobo J never seems to do what he recommends in the first quotation), but that ultimately this point has been silently overturned (by Eisenberg and New Clicks) so that in any event the supplementation thesis seems to now apply.

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PAJA unless, upon a proper construction, the provisions of the statutes in question are inconsistent with

PAJA.

This Kerry takes as authority for reading the procedural fairness requirements of PAJA into any other

legislation which is silent on such matters. Anyway, on the stated approach, can the Ordinance be read

consistently with the Constitution? This requires us to decide what the procedural fairness guarantee in s 33 of

the Constitution actually requires in these circumstances:

The right to notice before an adverse decision is made is a fundamental requirement of fairness. Notice

provides a person affected with the opportunity to make representations as to why an adverse decision

should not be made. It is a fundamental element of fairness that adverse decisions should not be made

without affording the person to be affected by the decision a reasonable opportunity to make

representations. A hearing can convert a case that was considered to be open and shut to be open to some

doubt, and a case that was considered to be inexplicable to be fully explained. The reasonable opportunity

to make representations can generally be given by ensuring that reasonable steps are taken to bring the

fact of the decision-making to the attention of the person to be affected by the decision.

So the right to notice is a fundamental element of procedural fairness. But this raises the question of whether

the Pound must take steps to discover the identity of the livestock owner, so that they can give him notice and

an opportunity to be heard. Ngcobo J said that they must do so in some circumstances:

The question whether fairness requires the decision-maker to take some steps to ascertain the identity of

the person against whom the decision is to be made must be determined with due regard to the

circumstances of each case. The overriding consideration will always be what does fairness demand in the

circumstances of a particular case. The availability of information which, with the exercise of reasonable

diligence, renders it possible to ascertain the identity of a person is a relevant consideration. So is the

urgency required in making the decision.

Obviously such a context-sensitive finding can only with difficulty be applied in future cases. Anyway, Ngcobo J

ultimately finds that the Ordinance can be read as implicitly requiring the taking of such steps. Therefore the

relevant provisions were held to be consistent with s 33 of the Constitution. Certain other provisions of the

Ordinance were declared invalid for non-compliance with other sections of the Constitution, namely ss 9(3)

and 34.

The next case is Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and

Tourism 2005 (3) SA 156 (C). Kerry loves it, and it makes lots of important points. But it is only a High Court

judgment, so it’s hard to know what the implications will be. Anyway, the case concerned a pebble-bed

modular reactor (basically a small nuclear power plant) which Eskom wanted to build at Koeberg. It applied for

the necessary approvals under the Environmental Conservation Act (ECA). The Act required the conducting of

an environmental impact assessment (EIA), which included a lot of public participation, and following that the

submission of a report to the Director-General (D-G) to get his approval. Eskom appointed various

independent consultants to do the EIA and facilitate the public participation, and their report was given to the

D-G. At this point Earthlife made a number of attempts to be afforded a hearing by the D-G on the subject of

this final report, but none were forthcoming. This meant that the D-G made his decision based simply on what

was compiled in the report and on the advice of the panel of consultants who, although not Eskom employees

as such, had been appointed by it. Furthermore, the final report did not even mention Earthlife’s submissions.

The Act had an internal appeal process and allowed for judicial review of the D-G’s decision. When the D-G

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approved the building of the reactor, seventy applications (including one by Earthlife) were made to appeal

the decision. Earthlife also took the matter on review, and it is those proceedings that concern us here.

The first issue is the duty to exhaust internal remedies. The D-G argued that Earthlife could not take the matter

on review because they had not exhausted all internal remedies: specifically, they had to wait for the outcome

of the internal appeal. PAJA s 7(2)(a) requires litigants to exhaust all internal remedies before approaching a

court, but this is subject to the court’s discretion (s 7(2)(c)) to relax this requirement ‘in exceptional

circumstances’ where doing so is ‘in the interests of justice’. Griesel J chose to exercise his discretion, pointing

to a number of factors. Firstly, the issue in dispute was very serious: it was a ‘very sensitive and controversial

issue’ which has ‘generated considerable local and national interest’. It was undesirable for such an important

matter to be decided on a technicality. Secondly, Griesel J noted that the ECA specifically provided for both

internal appeal and judicial review. This meant that the legislation itself envisaged an exception to the duty to

exhaust all internal remedies. Finally, he noted that if Earthlife’s review application succeeded it would

effectively dispose of the seventy applications for appeal. It was in the interests of justice to deal with the

matter in this expeditious way. Despite this finding on the facts, one must be very wary of s 7 of PAJA: if one

has not exhausted all internal remedies one is going to have to show something exceptional to get any relief

from a court. Most commonly, the exceptional circumstances will relate to the urgency of hearing the matter

in court.

The next obstacle facing Earthlife was the argument that this was a preliminary decision and as such could not

be reviewed. Specifically, the respondents pointed out that the reactor needed approval under other relevant

legislation before it would actually be built. This is a fairly dubious argument given that the D-G’s decision was

completely final insofar as the ECA’s procedures were concerned. It was held moreover that where a

preliminary decision has ‘serious consequences’ then it can be reviewed. On these bases the Court rejected

the respondents’ argument.

Having disposed of these preliminary objections, Griesel J made some general remarks about procedural

fairness. Of particular interest is the fact that he held both s 3 and s 4 of PAJA to apply. This makes sense on

the facts, given that ‘the administrative action in question affects the rights not only of individual persons but

of the public in general’.

Turning to the actual grounds of review alleged: Earthlife had made various submissions throughout the public

participation process, but they also wanted to be given an opportunity to make representations to the D-G

when he deliberated on the matter. They had duly sent him a letter requesting such an opportunity, which was

ignored. The D-G’s argument was that there was no need to give a hearing at the deliberative stage, because

the audi principle had been fulfilled by means of all the public participation in the prior stages of the process.

Griesel J held that this argument was ‘fundamentally unsound’: there was no reason at all to limit the audi

principle to the first stage, particularly because the D-G had to deliberate on all relevant circumstances, not

only what was said in the report; and anyway the final report he actually received included new information

which Earthlife had not yet had an opportunity to rebut. Thus Griesel J held that Earthlife was entitled to a

reasonable opportunity to make representations, even at this last, deliberative stage.

Remember that in Brenco it was held that procedural fairness was not required at the deliberative stage, but

only at the initial investigative phase. The reason was basically that the discretion exercised at the deliberative

stage was so constrained by the recommendation of the investigators that any additional representations here

were unhelpful. Griesel J’s reasoning shows, however, that the same could not be said here.

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Griesel J held that a person ordinarily has a right to make representations to the person actually making the

decision. This is not what happened here, because it was Eskom who prepared the report submitted to the D-

G, which merely summarized the submissions made by the public. It was held that in fact it was acceptable in

these circumstances for the D-G to rely on expert assistance in coming to his decision; this was an exceptional

case where it would be unreasonable to expect the D-G personally to read every representation made. But,

nevertheless, the D-G’s actions were unfair. To begin with, the consultants were not independent as they were

aligned with Eskom. Moreover, the report prepared by Eskom was ‘a brief and perfunctory one that does not

even mention the applicant’s submissions’. So, even though the D-G was in principle entitled to rely on

assistance in processing the submissions, he had to have a better idea of their content than this; he took his

decision ‘without any regard to the applicant’s submissions and indeed without knowing what they were’.

Ultimately, it was ordered that the D-G’s final decision on the matter be set aside for being procedurally unfair.

The prior investigations under the ECA, which had been procedurally fair, were left intact.

The next case is Walele v City of Cape Town 2008 (6) SA 129 (CC). Walele lived on Walmer Estate. One day, a

construction vehicle bashed through his garden wall. He found out that a four-story block of flats was being

built on the neighbouring property. He was devastated that no-one had contacted him about these plans.

Applications for such projects go through a very complicated process involving many City officials. Eventually

the application goes to the Control Officer, who in this case had ultimately approved the building plans. Walele

took this decision on review, arguing firstly that the Officer had acted under dictation and secondly that he

(Walele) had a right to be heard before the decision was taken. It is the second argument which concerns us

here.

Walele was of course not the person who actually sought planning approval. So this is not a classic case (like

Knop) where the person was unhappy with the City’s decision on his own planning application. It also makes it

a difficult case because it is not clear what right, legitimate expectation or interest (if any) he actually has in

the matter: like in Kyalami, the best that Walele could do was say that the value of his property had been

decreased by the Officer’s decision. He said specifically that a large shadow would now fall across his house in

winter. Shame.

Walele was relying on the procedural fairness requirements in s 3 of PAJA. Remember (see above) that there is

a bizarre contradiction in that the threshold for this section is lower than the threshold for the Act as a whole.

The Court was therefore called upon to deal with this problem before it could decide whether Walele received

protection under s 3. Jafta AJ, in the majority judgment, resolved the contradiction by saying that if one tried

to apply the s 1 definition of ‘administrative action’ to s 3 one would create an absurdity, and that ‘*t+he

general rule is that a *definition’s+ meaning may not be applied if its application will lead to such

consequences’. He also quoted Nugent JA’s argument to similar affect in Grey’s Marine (see first semester).

But ultimately Jafta AJ simply says that he was ‘willing’ to not apply the s 1 definition, and to ‘assume’ that the

s 3 threshold applied. Presumably he was willing to make this assumption only because he finds later that

Walele does not even cross s 3’s more generous threshold (see below).

O’Regan ADCJ reaches the same conclusion—basically, s 3(1) trumps s 1—but bases her decision on the rule of

statutory interpretation that the specific trumps the general. If the s 3(1) definition were not taken to trump s

1, then the legislative intention would be thwarted: those whose legitimate expectations are affected would

not be given a right to procedural fairness, contrary to what s 3(1) clearly intends.

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So, although Jafta AJ’s judgment is hard to pin down—is he making a finding or merely an assumption?—this

case is pretty firm authority for the rule that, when s 3 is concerned, the s 1 definition is overridden by the

threshold provided in s 3(1). The upshot is that administrative action affecting an individual must be

procedurally fair where it affects that individual’s rights or legitimate expectations.

Having thus resolved the question of which threshold to apply, it had to be decided whether Walele crossed it.

Firstly, did it affect his rights? Jafta AJ distinguished the granting of approval by the City from the actual

building of the flats. As to the former:

The parties involved in the application for the approval were the respondents and the City. The applicant

was not a party to that process nor was he entitled to be involved. The building plans in question were

drawn at the instance of the respondents who wanted to erect the four-storey block of flats on their own

property. The granting of the approval could not, by itself, affect the applicant’s rights.

As to the building of the flats, this could not be reasonably construed as ‘administrative action’ at all. Jafta AJ

reasons that there is no need to extend the scope of ‘administrative action’ because the relevant legislation in

any case requires the City to refuse planning approval where the building in question will devalue surrounding

property. Jafta AJ’s distinction between the granting of approval and the actual building is horribly artificial,

since it is only because of the planning approval that the building could occur.

Secondly, did Walele have a legitimate expectation? Jafta AJ discussed the issue at length but his reasoning

boils down to the fact that simply being a neighbouring owner doesn’t create a legitimate expectation (one

needs ‘an express promise or a regular practice’).

Jafta AJ’s approach is somewhat redeemed by the fact that he ultimately set aside the planning approval

because of the argument which we have not discussed here, viz. the argument that the Officer had acted

under dictation.

O’Regan ADCJ’s reasoning is much more satisfying. She says that the zoning schemes in any given area already

limit one’s property rights, so no construction or approval therefor which occurs in conformity with the zoning

scheme can be said to affect one’s rights. It does affect one’s use and enjoyment of the property, but that is

not enough to cross the threshold given by s 3(1). One’s rights are only affected when the zoning scheme is

changed or contradicted—but then it is those decisions, rather than this one, that are susceptible to review.

It couldn’t be said, either, that Walele had a legitimate expectation to receive a hearing. O’Regan ADCJ

repeated the approach to legitimate expectations that she had laid out in Premier, Mpumalanga, the essence

of which is that one can have a legitimate expectation either because of an official’s past practice or because it

would simply be unfair not to give one a hearing in the circumstances. Walele could not satisfy either of these

tests: he was able to show that there was one other case where the Council had given a hearing to a

neighbour, but that was of course insufficient to demonstrate the existence of a past practice. And, even on

the ‘more generous’ alternative test, having a neighbour doing some building in accordance with the relevant

zoning plans is hardly such a serious invasion of Walele’s interests that he has a legitimate expectation of a

hearing.

O’Regan ADCJ rejected Walele’s alternative arguments, so she would’ve dismissed the appeal.

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Finally, we come to Joseph v City of Johannesburg 2010 (4) SA 55 (CC), another one which Kerry loves and

which shows how magical the Constitution is. The applicants were a group of indigent people who lived in a

certain block of flats. The City cut off their electricity because the landlord hadn’t been paying the bills

(although the residents had been paying the landlord). The City gave no notice to the residents prior to the

disconnection. The residents challenged the decision to disconnect their electricity on the grounds that they

should’ve been granted a hearing.

The first problem was that the residents had no contractual privity with the City—their contracts were with

the landlord—so they had to establish a right against the City by some other means. Skweyiya J looked at the

obligations on municipalities to provide basic services under s 152 of the Constitution as well as the Municipal

Systems Act. Electricity, it was held, is one of these basic services. From this duty, Skweyiya J inferred a

corresponding right held by the applicants to get electricity. This is a less technical understanding of the

concept of a right than is nowadays typical: Skweyiya J describes it as a ‘purposive’ approach which is more

innovative than the normal ‘private law’ concept of rights. Anyway, it seems to have reached the right result

here: on the basis of this reasoning it was concluded that the applicants’ rights were affected by the decision

to cut off the electricity, and this meant they had a right to procedural fairness.

But what was the content of procedural fairness in terms of s 3 of PAJA? As always, it was emphasized that the

content of procedural fairness depends on the facts of each case. Skweyiya J held that the City was required to

put a notice at the applicants’ residence 14 days prior to the disconnection of the electricity supply, stating all

‘relevant information’, including the date and time of the disconnection, the reason therefor, and the way in

which the decision to disconnect could be challenged. This last requirement essentially creates a right to a

hearing. Skweyiya J noted the serious administrative burden of giving everyone a right to make

representations before having his electricity cut off, but said that the City would only have to deal with those

residents who actually took the opportunity to approach it. This approach to remedies emphasizes the variable

content of procedural fairness.

5 Bias

(a) Introduction

The rule against bias is based on two common-law principles of good administration: first, that decisions are

more likely to be sound when the decision-maker is unbiased; and, second, that the public will have more faith

in the administrative process when justice is not only done but also seen to be done. Decision-makers must

therefore be prevented from making decisions that are based, or could be perceived to be based, on

illegitimate motives or considerations. A bias might exist because the adjudicator has a financial interest or a

personal interest in the matter.

There are two issues in this section: Firstly, what is the test for the existence of bias? Secondly, and more

interestingly, how does the law deal with institutional bias?

(b) The test for bias

The first case on bias is BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers’ Union 1992 (3) SA

673 (A). This was a case in the early ‘90s when organized labour was beginning to get the upper hand in its

longstanding battle with the nasty corporations. BTR had been taking a hardline approach to the unions, and

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had a fraught relationship with MAWU. When BTR dismissed 890 of its workers, MAWU went to the Industrial

Court (an administrative tribunal), accusing BTR of unfair labour practices. Given the political context, the case

was very sensitive. The hearing before the Industrial Court was highly acrimonious and took many months. The

allegation of bias related to something that happened when the court was in recess: The law firm representing

BTR invited the presiding officer hearing the case to give the keynote address at a conference on labour

practices. Counsel for BTR would also be attending and presenting papers at this conference. Prior to the

conference, MAWU asked the presiding officer to recuse himself, given that he was now fraternizing with their

opponents at a conference relating to precisely what was in dispute. As is often the case, the presiding officer

was affronted by the insinuation and insisted that there was no reasonable suspicion of bias, given that it is

normal for practicing lawyers (of which he was one) to attend legal conferences and that in any event the

panel hearing the case included two other adjudicators over whom he had no influence. So he went to the

conference and refused to recuse himself. MAWU duly applied to the High Court, alleging bias. There Didcott J

found in favour of MAWU.

When the matter went on appeal to the Appellate Division, the first issue Hoexter JA discussed was the test to

be applied in determining whether bias exists. The specific issue was whether there must appear to be a real

likelihood of bias, or whether it is enough if there appears to be a reasonable suspicion of bias. The former test

requires ‘a stronger than 50 per cent prospect’ of bias. The latter test is ‘less exacting’, requiring merely a

suspicion—not proof—of the possibility of bias by a reasonable person. Hoexter JA makes very clear that it is

the reasonable suspicion test that is fixed in our law, because justice must not only be done but must also be

seen to be done. But this is obiter because he ultimately says that on the facts there was bias no matter which

test is used.

In reaching this conclusion, it is very clear that the politically-sensitive nature of the dispute is what swayed

the Court. Hoexter JA quotes with approval the judgment in the High Court of Didcott J:

[I]t is of great importance to take account of the sort of litigation that was involved here. It was not the

ordinary sort … We are dealing with a highly sensitive field. The relationship between management and

workers in this country and many others has historically been tense and strained for much of the time. It is

a relationship that is characterised by a high degree of mutual suspicion, at times of acrimony and hostility,

and for understandable reasons, in that there are fundamental conflicts of interest between management

and workers …

Hoexter JA also noted that the firm which invited the adjudicator to their conference, and with whom the

adjudicator was ‘hobnobbing’, was in the eyes of MAWU, ‘in the camp of the enemy’. In these circumstances it

followed that a reasonable litigant in the position of MAWU would have had a suspicion of bias.

Under the Constitution the test for bias is whether there is a ‘reasonable apprehension’ (not a reasonable

suspicion) of bias. This was set out in the case of President of the Republic of South Africa v South African

Rugby Football Union - Judgment on recusal application 1999 (4) SA 147 (CC). This was a preliminary

judgment in the SARFU matter dealing with the Rugby Union’s application for the recusal of five of the

Constitutional Court judges. Their argument (which we noted briefly in first semester) was that these judges

had previous connections with the ANC (for example, Chaskalson was Mandela’s lawyer in the Rivonia Trial)

and as such would be partial in favour of the State. The Court ultimately rejected the application. The test for

bias they used was as follows:

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The question is whether a reasonable, objective and informed person would on the correct facts reasonably

apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the

case, that is a mind open to persuasion by the evidence and the submissions of counsel.

The word ‘apprehension’ is in substance the same as ‘suspicion’, but the Court said the latter was a better

term to use because ‘suspicion’ has negative connotations and casts aspersions on the adjudicator.

From an outsider’s perspective it does seem as though there was a reasonable apprehension of bias in casu.

But those early Constitutional Court judges—unlike some of the clinically retarded current ones—were so well-

respected that their decision seemed fair. Although it might’ve arisen in an unusual political and historical

context, this test is now accepted as the standard to be applied under both the Constitution and PAJA. The

latter encapsulates the test in s 6(2)(a)(iii), which provides for the judicial review of any administrative action

that ‘was biased or reasonably suspected of bias’.

(c) Institutional bias

Institutional bias is bias in the very nature of the adjudicating institution, created by the statute which

constitutes that institution. For example, a statute might create an administrative tribunal consisting of

members who will clearly have an interest in the matters they adjudicate. Institutional bias used to be dealt

with as a matter of interpretation: there was a presumption of interpretation, subject to the contrary intention

of the legislature, that the recusal rule applied.

This is exhibited in the leading pre-1994 case of Council of Review, South African Defence Force v Mönnig

1992 (3) SA 482 (A). The three respondents were members of the SADF who had tea parties together where

they discussed the SADF’s covert attempts to undermine the End Conscription Campaign. Unfortunately one of

the young chaps at the tea parties was a spy. He ratted on the respondents, who were charged under the

Protection of Information Act and Defence Act with disclosing military secrets. At the court martial they were

convicted. Then, before the Council of Review (a tribunal comprised of SADF members which hears internal

reviews), the respondents argued in their defence that the undermining of the Campaign by the SADF was

both ‘illegal and immoral’, that it was a covert plan rather than official Defence Force policy, and therefore the

respondents were legitimately entitled to reveal it. However, such an argument required the members of the

Council to pass judgment on the legality of the actions of their own organization. In such circumstances, it was

argued, there was a reasonable suspicion that the members were biased and as such should have recused

themselves. It was on this basis that the respondents came to court to challenge the Council’s decision against

them.

The respondents succeeded in the High Court, having shown that there was a reasonable suspicion of bias. On

appeal, the Council argued that the Council was actually constituted by legislation (the Military Discipline

Code) so as to be comprised of SADF members. In other words, Parliament—who was of course sovereign at

that stage—had created any bias which did exist, and so the appellants argued that the Court was not allowed

to review the legislature’s deliberate arrangements. The Appellate Division was therefore required to

somehow reconcile the rule against bias with the sovereignty of Parliament.

It did so by relying on the well-established rule that the principles of natural justice (of which the recusal rule is

one) apply unless the statute expressly or impliedly excludes them. Crucially, Corbett CJ pointed out that the

legislation specifically required recusal by members of the Council in some circumstances, implying strongly

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that the principles of natural justice were not excluded. The Council argued, however, that the legislature must

have intended to exclude the recusal rule because otherwise the Council would be deprived altogether of

jurisdiction. In other words, any bias which did exist was truly ‘institutional’, i.e. the same objection could be

raised against any court martial constituted under the Code, and so if the legislature meant to include the

principles of natural justice this would lead to the absurd conclusion that the Council had no jurisdiction.

Corbett CJ noted however that the civil courts had concurrent jurisdiction with the Council, and so there was

no absurdity: if an objection was raised on the grounds of bias, the matter could simply be referred to a civil

court. Thus the Code ultima facie did not exclude the principles of natural justice, and the finding of the court

a quo was upheld.

Now that the Constitution is supreme, there is no need to rely on Mönnig’s Parliamentary sovereignty-era

mechanism. One can simply bring a constitutional challenge to whatever legislation creates the biased

framework. One would rely on s 33: even though it does not specifically mention the rule against bias, it must

surely be understood as an implicit part of the right to administrative justice. As in any constitutional

challenge, however, any infringement of this right could be justified under s 36. This will involve the usual

proportionality inquiry, where the respective interests are weighed up.

Hoexter suggests that PAJA s 6(2)(a)(iii) itself allows a challenge to any institutional bias, on the reasonable

assumption that all (other) legislation must be consistent with PAJA.

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REASONABLENESS

1 The common law

Under the common law, review for reasonableness was frowned upon. The test was whether there was gross

unreasonableness to a striking degree, such as to indicate irrationality or a failure to apply the mind. The point

is, firstly, that the threshold is very high; and, secondly, that the unreasonableness was not a problem in itself

but only insofar as it was a symptopm of a ground of review more easily brought under the ultra vires doctrine

(hence the term, ‘symptomatic unreasonableness’).

2 The Interim Constitution: Carephone

Under the Interim Constitution, neither ‘rationality’ nor ‘reasonableness’ was stated as a ground of review.

Administrative action was required to be ‘justifiable in relation to the reasons given for it’ (s 24(d)). As we said

in first semester, this term was used to allay fears that ‘reasonableness’ allowed too much judicial

intervention. Anyway, justifiability was the applicable standard from 1994 until 2000, because of the

suspension of the final Constitution’s administrative justice right until PAJA was enacted.

The most important case in spelling out what justifiability means is Carephone (Pty) Ltd v Marcus 1999 (3) SA

304 (LAC), a judgment of the Labour Appeal Court. The judgment is written by Froneman DJP, and Cameron JA

was also on the bench. Dennis Davis appeared for most of the workers. Certain workers sacked by Carephone

went to the CCMA, and then the matter went on appeal to the Labour Court and subsequently the Labour

Appeal Court. Carephone wanted to review the arbitrator’s award on grounds of justifiability, but Mlambo J in

the Labour Court said he was limited to the grounds of review listed in s 145 of the LRA and as such had no

jurisdiction to do the scrutiny Carephone was demanding. Carephone appealed, saying that the CCMA

arbitrator must be regarded as subject to s 24 of the Constitution, in particular its justifiability standard, in

addition to the provisions of the LRA.21

Davis had argued that although the CCMA was an administrative body doing administrative action (within the

meaning of the Constitution) it was administrative action of a judicial nature and therefore to an extent

insulated, under the classification of functions approach, from judicial review. This, he argued, meant s 24 of

the Constitution did not apply over and above the provisions of the LRA. Froneman DJP says however that the

classification of functions approach was abandoned in Traub, and it would be ‘ironic indeed’ if it was

reintroduced now to limit the scope of judicial review.

Froneman DJP held that the substantive answer to the application of s 24 is to be found in the purpose of the

administrative justice section of the Bill of Rights, that is, to extend accountability, responsiveness and

openness to the institutions exercising public power, even if those institutions were not previously subject to

these constraints. It would be incongruous, says Froneman DJP, if under our new constitutional regime

administrative bodies performing judicial functions were exempt from these constraints. There is nothing in

the LRA to suggest that they should be thus exempted.

21

This is of course very similar to the issues we discussed in the admin/labour law section, but Carephone was decided well before any of the cases we discussed there, and used the Interim Constitution.

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The CCMA’s decisions are therefore reviewable under s 24 of the Constitution. The applicable standard under

that section is that administrative actions must be ‘justifiable in relation to the reasons given for them’. This

standard, says Froneman DJP, introduces an enquiry into the rationality of the outcome of the decision, going

beyond merely looking at the procedures followed in reaching it. Still, he cautions against thinking that the

review/appeal distinction has as a result been abolished. ‘Justifiability’ means ‘defensible’ or ‘capable of being

justified’, rather than ‘correct’. Therefore courts are still not allowed to invalidate a decision simply because

they think it is wrong:

When the Constitution requires administrative action to be justifiable in relation to the reasons given for it,

it thus seeks to give expression to the fundamental values of accountability, responsiveness and openness.

It does not purport to give courts the power to perform the administrative function themselves, which

would be the effect if justifiability in the review process is equated to justness or correctness.

In determining whether administrative action is justifiable in terms of the reasons given for it, value

judgments will have to be made which will, almost inevitably, involve the consideration of the ‘merits’ of

the matter in some way or another. As long as the Judge determining this issue is aware that he or she

enters the merits not in order to substitute his or her own opinion on the correctness thereof, but to

determine whether the outcome is rationally justifiable, the process will be in order.

This is a well-known passage which is quoted with approval by the Constitutional Court in Bato Star (see

below) and by Hoexter.

Froneman DJP then responds to counsel’s argument that a different term should be used to ‘justifiability’, like

‘reasonableness’ or ‘rationality’:

Without denying that the application of these formulations in particular cases may be instructive, I see no

need to stray from the concept of justifiability itself. To rename it will not make matters any easier. It seems

to me that one will never be able to formulate a more specific test other than, in one way or another,

asking the question: is there a rational objective basis justifying the connection made by the administrative

decision-maker between the material properly available to him and the conclusion he or she eventually

arrived at? In time only judicial precedent will be able to give more specific content to the broad concept of

justifiability.

Now applying this flexible test to the facts, Froneman DJP finds that the arbitrator was rationally and

objectively able to come to his conclusion, and as such the appeal was dismissed.

This is a significant judgment. Most notable is the frank acknowledgment that courts, in applying justifiability

review, are now going into the merits, rather than merely the process, of decisions. But, in doing so, judges

must remain in their proper role under the separation of powers, that is, conducting reviews rather than

appeals.

3 The final Constitution and PAJA: Bato Star

Turning now to the position under s 33 of the final Constitution and PAJA, the most important case by far is

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC),22 the

22

Corder characteristically spent an obscene amount of time discussing the irrelevant minutiae of this case. His whole discussion is reflected here, but remember that the importance of the case is really its interpretation of reasonableness

64

leading judgment on reasonableness in our administrative law. As we said briefly in first semester, PAJA

requires that decisions be rational (s 6(2)(f)(ii)) and reasonable (s 6(2)(h)). But in its reasonableness test it uses

the wording of the discredited Wednesbury test from English law. In Bato Star the Constitutional Court has to

interpret and develop this test. Fortunately it does so expansively and non-literally.

Anyway, the case concerned the very complicated process by which fishing quotas are allocated. Bato Star was

a BEE fishery trying to establish itself properly in this highly capital-intensive industry. Although its total

allocated catch (TAC) had been increased in the most recent annual allocation by the Department of

Environmental Affairs, Bato Star was aggrieved because the increase was, in its view, too small. The Marine

Living Resources Act, which governed the allocation of fishing quotas, listed twelve factors to be considered in

deciding on the allocations. One of these, contained in s 2(j), was ‘the need to restructure the fishing industry

to address historical imbalances and to achieve equity within all branches of the fishing industry’. Moreover,

the Act emphasizes in s 18(5) that ‘the Minister shall, in order to achieve the objectives contemplated in

section 2, have particular regard to the need to permit new entrants, particularly those from historically

disadvantaged sectors of society’. It was the Department’s avowed policy to redress economic inequality

through its quota allocations. It had said in a policy document that ‘up to 25%’ of the weighting, when scoring

the fishing companies’ applications, would be placed on transformation. But ultimately the used was 2%.

The High Court found for the applicants on a number of grounds, saying that the Chief Director had failed to

provide evidence as to how he had arrived at his decision; that he had acted arbitrarily; and that he had

ignored relevant considerations and taken account of irrelevant ones (like the need for stability in the fishing

sector). The State appealed to the SCA, which upheld the appeal. Bato Star finally brought the matter before

the Constitutional Court. Corder was consulted by Bato Star during the course of litigation, but his side

ultimately lost. The winner was the State, represented by Wim Trengove.

Before the Constitutional Court three grounds of review were advanced:

1. The Chief Director had failed to give enough weight to s 2(j) of the Act in reaching his decision.

2. The Chief Director failed to apply his mind to the merits of Bato Star’s application.

3. The failure to disclose to Bato Star the Department’s change in policy (from ‘up to 25%’ consideration

of transformation to 2%) was procedurally unfair.

O’Regan J points out that Bato Star was wrong not to clarify whether it was relying on PAJA, the Constitution,

or the common law. PAJA was clearly of primary application—it enables the constitutional right and largely

replaces the common law—and so the High Court and SCA had erred in failing to rely on it.23 The

Constitutional Court asked the parties to lodge supplementary written argument dealing properly with PAJA.

This is a strong rebuke by the Constitutional Court to our courts’ dismissive attitude towards PAJA. It later

reaffirmed this attitude in New Clicks.

O’Regan J then turns to the first ground of review advanced by Bato Star. The essence of Bato Star’s argument

was that the Chief Director had failed adequately to consider one of the factors which the Marine Living

Resources Act explicitly stated, namely the transformation of the fishing industry. The High Court had agreed,

saying that the Chief Director had ignored a peremptory provision. The SCA, however, said that these

provisions were not peremptory; their purpose was ‘to guide and not to fetter’, and so the Chief Director had

review under s 6(2)(h) of PAJA and the related comments about deference. Corder does seem to like Ngcobo J’s concurrence, so refer to that if transformation ever comes up in the exam. 23 It is never really discussed whether the decision was administrative action. The Court just seems to assume from the outset that it is.

65

done all that the Act required. Because of the uncompromising stance O’Regan J took to the application of

PAJA, Bato Star now had to tie its argument to the statute’s provisions. It did so by relying on numerous

grounds listed in s 6(2): error of fact, error of law, that irrelevant considerations were taken into account and

relevant ones not, that the decision was not authorized by the empowering provision, that the decision was

not rationally connected to the purpose of the empowering provisions, and that the exercise of the power was

not reasonable. O’Regan J says that the first four of these are lawfulness arguments, and the last two are

reasonableness arguments. She considers these two categories separately.24

As far as the lawfulness aspect is concerned, this is a question of what the empowering legislation actually

requires. Specifically, what is the nature of the obligations imposed on the Chief Director by ss 2 and 18(5)?

O’Regan J holds that s 2 lists numerous factors, their relevance varies from decision to decision, and indeed

sometimes the factors will conflict. The section does not give ‘clear guidance’ on how to balance these factors.

Nevertheless, as far as the transformation factor was concerned, s 2(j) read with s 18(5), and also the

fundamental constitutional value of equality, shows that the Chief Director was ‘obliged to give special

attention’ to transformation. So the obligation imposed by the Act to consider transformation was a relatively

strong one. However, the manner in which transformation must be achieved ‘is, to a significant extent, left to

the discretion of the decision-maker’. A court will therefore be reluctant to brand the Director’s conduct

unlawful if consideration has been given to transformation—even if the court disagrees with the method

chosen to give effect to it.

Applying this approach to the facts, the Court held that the Director had clearly paid a lot of attention to

transformation. For example, it had in previous years admitted a number of new entrants into the fishing

industry. The mere fact that it had not substantially increased Bato Star’s TAC this year could not be said to be

a misdirection by the Director of his powers.

But the really crucial argument for our purposes is the reasonableness one, discussed by O’Regan J from paras

42 to 50. Under PAJA, reasonableness is contained in s 6(2)(h), which states that a decision will be invalid if it

‘is so unreasonable that no reasonable person’ could have reached it. Counsel had referred to a common-law

case, Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd 1988 (3) SA 132 (A), in which

Corbett JA had explained that reasonableness was only a ground of review insofar as it was a symptom of

some more recognized ground of review like failure to apply the mind. Of Corbett JA’s dictum O’Regan J says

the following:

It is well known that the pre-constitutional jurisprudence failed to establish reasonableness or rationality as

a free-standing ground of review. Simply put, unreasonableness was only considered to be a ground of

review to the extent that it could be shown that a decision was so unreasonable as to lead to a conclusion

that the official failed to apply his or her mind to the decision.

But now reasonableness review is governed not by the common law but by s 6(2)(h) of PAJA. The question is

therefore how to construe this provision. O’Regan J notes that s 6(2)(h) is a resurrection of the Wednesbury

reasonableness test which had been used in English law. But she immediately quotes the dicta of Lord Cooke

of the House of Lords to show that the Wednesbury test is a shitty one: firstly, it is largely circular or

24 Corder said in lectures that O’Regan J in her judgment is ‘drawing a close working relationship’ between lawfulness and reasonableness, and that this recalls her dicta in New Clicks about the relationship between reasonableness and procedural fairness. I think this is a bit misleading. She deliberately separates the two out. The facts in casu and the applicant’s arguments do show that lawfulness and reasonableness often overlap, but this has nothing at all to do with O’Regan J’s attitude. In fact her attitude seems to be that they should be kept separate.

66

tautologous; and, secondly, the language it uses (‘so unreasonable that no reasonable person …’) suggests—

wrongly—that courts will only in the most extreme cases find a decision to have been unreasonable. For these

reasons she favours a non-literal, constitutionally-infused interpretation of the section:

In determining the proper meaning of section 6(2)(h) of PAJA in the light of the overall constitutional

obligation upon administrative decision-makers to act “reasonably”, the approach of Lord Cooke provides

sound guidance. Even if it may be thought that the language of section 6(2)(h), if taken literally, might set a

standard such that a decision would rarely if ever be found unreasonable, that is not the proper

constitutional meaning which should be attached to the subsection. The subsection must be construed

consistently with the Constitution and in particular section 33 which requires administrative action to be

“reasonable”. Section 6(2)(h) should then be understood to require a simple test, namely, that an

administrative decision will be reviewable if, in Lord Cooke’s words, it is one that a reasonable decision-

maker could not reach.

Clearly the test is still extremely open-ended, and O’Regan J emphasizes that reasonableness depends on the

circumstances of each case. But she does provide some guidance by giving a non-exhaustive list of relevant

factors at para 45:

The nature of the decision;

The identity and expertise of the decision-maker;

The range of factors relevant to the decision;

The reasons given for the decision;

The nature of the competing interests involved; and

The impact of the decision on the lives and well-being of those affected.

Corder says it is the last factor, in particular, which separates reasonableness from rationality. Hoexter agrees.

She sees in this last factor a reflection of the idea of proportionality, that administrators ‘must not use a

sledgehammer to crack a nut’. In other words, there must be some sort of proportionality between their

objective and the means used to achieve it. Many academics in South Africa wanted proportionality

recognized in PAJA’s grounds of review, but of course Parliament used the silly Wednesbury test instead.

Hoexter is pleased that O’Regan J escaped the strictures of a literal interpretation of this test, and, as stated,

thinks that she has given effect to the idea of proportionality in this last factor.

Anyway, reasonableness does not shy away from scrutinizing the merits of the decision. Thus O’Regan J

sounds a familiar warning:

Although the review functions of the court now have a substantive as well as a procedural ingredient, the

distinction between appeals and reviews continues to be significant. The court should take care not to

usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by

administrative agencies fall within the bounds of reasonableness as required by the Constitution.

Notice how insistent courts continue to be that they are courts of review and not appeal. They say repeatedly

that although they inquire into the merits they are not second-guessing the correctness of the administrator’s

decision and replacing it with their own decision; they are simply ensuring that the decision falls within certain

boundaries of sensible decision-making.

Nevertheless, the traditional and formalistic distinction between appeal and review has become untenable.

The appropriate balance is now to be struck in notions of judicial deference. In this regard, O’Regan J approves

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the quotation by Schutz JA (in the SCA judgment in this matter) of Hoexter’s well-known definition of

deference, which we have encountered before. O’Regan J continues as follows:

Schutz JA continues to say that “*j+udicial deference does not imply judicial timidity or an unreadiness to

perform the judicial function”. I agree. The use of the word “deference” may give rise to misunderstanding

as to the true function of a review court. This can be avoided if it is realised that the need for courts to treat

decision-makers with appropriate deference or respect flows not from judicial courtesy or etiquette but

from the fundamental constitutional principle of the separation of powers itself.

O’Regan J spends some time emphasizing this point that, despite the connotations of the word, deference

does not imply servility. Rather, it is a consequence of the separation of powers, a crucial aspect of the rule of

law. Continuing the wankfest, she then says:

In treating the decisions of administrative agencies with the appropriate respect, a court is recognising the

proper role of the executive within the Constitution. In doing so a court should be careful not to attribute to

itself superior wisdom in relation to matters entrusted to other branches of government. A court should

thus give due weight to findings of fact and policy decisions made by those with special expertise and

experience in the field. The extent to which a court should give weight to these considerations will depend

upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that

requires an equilibrium to be struck between a range of competing interests or considerations and which is

to be taken by a person or institution with specific expertise in that area must be shown respect by the

courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed

to achieve that goal. In such circumstances a court should pay due respect to the route selected by the

decision-maker. This does not mean however that where the decision is one which will not reasonably

result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable

in the light of the reasons given for it, a court may not review that decision. A court should not rubber-

stamp an unreasonable decision simply because of the complexity of the decision or the identity of the

decision-maker.

Corder recognizes that this is dense, boring shit but he says you must read and digest every sentence. This

after all is the crux of the Court’s approach to reasonableness review. Basically, the Court is signaling that it

will be deferential based on the separation of powers, the expertise of the decision-maker, and the complexity

of the decision.

Corder points out that frequently the whole point of having administrative bodies is to ensure that decisions

are made by the right people with the necessary expertise. He gives the pertinent example of the professor of

applied maths who is hired by the Department of Environmental Affairs to do statistical modeling of fish

stocks. He gets furious when pathetic little judges cast aspersions on the integrity of decision-making bodies

which are actually highly qualified and are basing their decisions on statistical models developed over decades.

These judges know absolute fuck-all about fisheries, but they like to appear ‘progressive’ and ‘activist’ to

impress their leftist buddies, so they take every opportunity to criticize the decisions of administrative

tribunals. These judges should go fuck themselves.

On an unrelated note, Dennis Davis has criticized O’Regan J’s approach to deference, as we saw in first

semester. He basically says that deferring whenever the decision is very complicated is a rather weak account

of the judicial role. The judicial role, properly understood, is to protect the rights of citizens and hold the State

to the commitments of the Constitution. Even where a decision is complicated, a judge can still ensure that

those rights and commitments are being honored. Davis says that although the decision in Bato Star was very

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complicated and the administrator had a legitimate discretion, the Court could have checked whether the

goals he was serving were constitutionally compliant. So the starting point must not be the position and

expertise of the administrator; the starting point must be the rights of the individual and the commitments of

the Constitution.

When O’Regan J applies her approach to the facts, she makes various comments which reaffirm her rather

lame approach to judicial deference:

If we are satisfied that the Chief Director did take into account all the factors, struck a reasonable

equilibrium between them and selected reasonable means to pursue the identified legislative goal in the

light of the facts before him, the applicant cannot succeed. The task of allocation of fishing quotas is a

difficult one, intimately connected with complex policy decisions and requires ongoing supervision and

management of that process by the departmental decision-makers who are experts in the field …

It is plain that the process of transformation of the fishing industry, and in particular, the highly complex,

capital- and labour-intensive deep-sea hake fishery is no easy task. Parliament has identified the relevant

policy considerations and has left the implementation of this task to the executive.

O’Regan J ultimately reaches a conclusion rather similar to the one she reached on lawfulness (above): the

Director clearly did consider transformation, so the Court is not allowed to say that the strategies chosen to

achieve it are unreasonable (even if it disagrees with them or thinks better ones were available). Thus the

appeal/review distinction manifests here in the Court’s being willing to look only at what is to be achieved and

not at how it is to be achieved.

O’Regan J then deals with the second ground of review advanced by Bato Star, namely that the Director had

failed to consider the merits of the application. In particular, Bato Star argued that the Director did not have

regard to the TAC which it had requested. This argument is obviously a bit retarded, since every applicant is

going to overstate their entitlement; the whole point of the Director is to make reasoned and fair decisions

which do not simply give effect to the greedy fishing company’s wishes. O’Regan J accordingly dismisses this

argument quite quickly. She says that it is true that the requested TAC was not considered, but that ‘*i+t is not

clear why it should have been’.

O’Regan J then moves onto the final ground of review, namely that it was procedurally unfair for the

Department to change its policy, without telling the applicants, from having a weighting of ‘up to 25%’ on

transformation to having a weighting of only 2%. O’Regan J rejects this argument, basically saying that this was

not a change of policy at all. It was never claimed that the 25% target was going to be achieved immediately—

on the contrary, the Department had specifically said this was a long-term target—and so the choice of the 2%

weighting for this year’s allocations was not a change of policy.

O’Regan J therefore dismissed the appeal. The whole Court concurred in her judgment. Interestingly, however,

Ngcobo J wrote a separate judgment in which the whole Court (including O’Regan J) also concurred. The sole

purpose of his judgment to have a big fat wank about the importance of transformation in the context of the

Marine Living Resources Act. Ngcobo J’s wanking about transformation is so vigorous that it seems, right up

until the end of his judgment, that he is going to find in favour of Bato Star. But he ends up confirming basically

what O’Regan J says, namely that although transformation is important, there are many ways to achieve it,

and so courts can’t really intervene and review decisions on the basis thereof. Here are some quotations:

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South Africa is a country in transition. It is a transition from a society based on inequality to one based on

equality …

The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the

Constitution … Our Constitution recognises that decades of systematic racial discrimination entrenched by

the apartheid legal order cannot be eliminated without positive action being taken to achieve that result.

We are required to do more than that. The effects of discrimination may continue indefinitely unless there

is a commitment to end it.

So transformation is fundamental to our Constitution. It must therefore inform the interpretation of any

statute, including obviously the Marine Living Resources Act and its statement that the Director must ‘have

regard to’ transformation. On this approach it is ‘plain’ that s 2(j) is an ‘imperative to be given effect to’ by the

Director’s decision. Moreover, the Director must

do more than give lip service to section 2(j). The decision must address the need for transformation in a

meaningful way when decisions are made, and be able to demonstrate that this has been done. A failure to

do so is unlawful, and the ensuing decision is open to attack.

Responding to the State’s argument that it must ensure stability in the industry and thus put a brake on

transformation, Ngcobo J says:

No one would dispute the need to maintain stability in the industry … But transformation cannot be

sacrificed at the altar of stability.

So, again, it seems as though Ngcobo J is going to find against the Director. But there is another side to his

wanking:

But transformation is a process. There are profound difficulties that will be confronted in giving effect to the

constitutional commitment of achieving equality. We must not underestimate them …

The duty of the courts … does not extend to telling the functionaries how to implement transformation.

That must be left to the functionaries concerned.

As stated, his approach thus boils down to what O’Regan J had said: transformation is important but courts

can’t tell the other branches of government how to achieve it. Ngcobo J finds against Bato Star when he

applies this test:

It is not immediately clear why if the proposal says up to twenty five percent would be set aside the

applicant should complain when two percent was set aside. Obviously, two percent is within the range of

“up to”. In any event, the amount reserved was to be determined by a number of factors, one of which

would be the Total Allowable Catch and the procedure for allocation. In my view, it is not within the

province of the courts to tell the government how much should be allocated for transformation. This is a

matter to be determined by the Minister. What is important is that a percentage was actually set aside for

transformation.

Ngcobo J dismisses the related arguments advanced by Bato Star on basically the same basis, and that is why

his judgment is ultimately a concurrence.

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NEW CLICKS25

Now on to the most reprehensible, piece-of-shit case you will ever read, the bane of every admin law student’s

existence: Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC). This is a fucking long,

complicated case. None of the judges agree. So it tells us absolutely nothing about anything. But still, we have

to study it. The case has 853 paragraphs. But, thank Christ, some peon at the Constitutional Court prepared a

summary of the judges’ various views, contained in the first 22 paragraphs of the judgment. Between that

summary and Corder’s lectures (as described here), you should get all you need to know. But if you are in the

mood for some self-harm you can use my handy paragraph references to guide you in your reading of the

entire fucking judgment. Fuck.

The case concerns the new Medicines Amendment Act, the purpose of which was basically to make medicines

more affordable. Various money-grubbing corporations, led by New Clicks, were pissed that the State was

getting on their tits and trying to reduce their profit margins. They drew on their vaults of Jew-gold to bring a

series of applications obstructing the passage of the legislation. The particular matter we are dealing with here

is a challenge on various grounds to the proposed pricing regulations drafted under the Act by the Health

Minister at the time (Manto the drunk, beetroot-loving slut). She had appointed advisory councils, the Pricing

Committee and others to decide inter alia on the single exit price (SEP) for pharmaceuticals. The Minister then

formulated the regulations on their recommendations. The litigation was launched before the regulations

were actually passed into law. The subject matter of the dispute was highly contentious, since it basically

pitted big business against an interventionist government. The public felt that the courts were basically being

called upon to decide on the country’s economic policy.

The shenanigans in the High Court meant that, by the time it reached the Constitutional Court, it was even

more contentious. Hlophe JP and Yekiso J found that the pricing regulations were valid. Traverso DJP

dissented. Having lost the case, New Clicks et al sought leave to appeal to the SCA. In the vast majority of cases

where the court splits, especially on a matter of huge public importance, leave to appeal is readily granted. But

the High Court made no decision on the matter for several months. The applicants therefore went to the SCA

to petition directly for the right to appeal. They argued that the High Court’s failure to make any decision

amounted to constructive refusal of leave to appeal, so the matter was ripe for the SCA to overturn (even

though on the face of it the High Court hadn’t yet made a decision). The SCA accepted this argument and

granted leave to appeal. Hlophe JP then released his decision, refusing leave to appeal (on totally retarded

grounds and with no satisfactory explanation of why the decision had taken months). He also complained that

the judges of the SCA and Traverso DJP were racists. But anyway, events had by then overtaken him, since the

SCA had decided the matter. It unanimously upheld the appeal, finding against the government’s

interventionist legislation and in favor of big business. The lefties moaned. The State then appealed to the

Constitutional Court.

The leading judgment in the Constitutional Court was written by Chaskalson CJ. It was his last ever judgment,

adding special resonance as he had his final say on various important matters in the Court’s jurisprudence. For

the most part he speaks for the majority of the Court but, as previously noted, there were a fuckload of

dissents.

25 This case was not discussed under any particular heading. In fact Corder stressed that it was a sort of consolidation of everything we’ve learnt. So I gave it its own topic. It’s a really long discussion of what is ultimately not a very useful case, so I tried to summarise the few things worth taking out of it at the end.

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o Chaskalson CJ

The party gets started at para 23, where Chaskalson CJ describes the facts of the case. Obviously we don’t

really give a shit about these, except insofar as I described them above. What is more important is

Chaskalson’s vigorous wank about the politically charged context of the case at paras 31-33:

This *the fact that the Court is being called upon to decide upon the validity of government’s contentious

policy on pharmaceuticals] seems to have created the impression in some minds that the issues were

“political” and not “legal”, and led to comments in the media that the decision of the Court will be a test of

its independence, implying that if it finds against the government it will be independent, but not if it finds

for it.

It is necessary to put this case in its proper context and to say first what the case is not about. This case is

not about the wisdom of government policy. Government is entitled to adopt, as part of its policy to

provide access to health care, measures designed to make medicines more affordable than they presently

are. That has not been disputed by any of the litigants nor by any of the courts that have previously dealt

with the matter.

What courts are concerned with, and what this case is about, is whether the regulations have been made in

accordance with the requirements of the Constitution and the law. The challenges to the validity of the

regulations, and the responses to the various challenges, are based on detailed legal submissions dealing

with the Constitution and the requirements of laws which make provision for just administrative action.

There is nothing unusual about this. Our courts have frequently been called on to deal with similar

questions in the past and will no doubt be called upon to do so in the future. This is the role of courts in a

democracy.

Then in para 34 Chaskalson CJ identifies the four key issues in the case:

(a) Are the regulations subject to review under the provisions of PAJA? If not, are they subject to review

under the Constitution or the common law? If they are subject to review:

(b) Did the Pricing Committee, on whose recommendation the regulations were made, conduct its affairs

procedurally fairly?

(c) Are the regulations consistent with the Medicines Act, i.e. lawful in terms of the empowering

provision?

(d) Are the regulations too vague to be enforced?

He then briefly looks at what the High Court majority and SCA had said. The High Court said that PAJA was not

applicable but that the regulations could be reviewed using the Constitution and the common law. (These

references to the common law are confusing given what was said in Pharmaceutical Manufacturers. We will

deal with this later.) The SCA held that it had jurisdiction to grant leave to appeal because of the High Court’s

dilatoriness. On the merits, it held unanimously that the applicability of PAJA was irrelevant because the

regulations were ultra vires the Medicines Act and invalid for that reason alone.

From para 74ff Chaskalson CJ assesses the High Court and SCA’s conduct as it relates to the jurisdictional issue.

He notes that the High Court’s sluggishness is a mystery, and that in light of the fact that the appeal was

upheld by the SCA it was ‘clearly wrong’ to refuse leave to appeal on the grounds that the appeal had no

reasonable chance of success. Chaskalson CJ held that the SCA is entitled to regulate its own process and as

such the Constitutional Court would not enquire into the validity of its decision to grant leave to appeal prior

to the High Court’s own judgment on that issue.

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The Minister’s counsel had only argued the jurisdiction issue before the SCA, refusing to argue the merits

precisely because it claimed that the Court had no jurisdiction to adjudicate on the merits. Chaskalson CJ says

that the State’s counsel were fucking cunts to refuse to do this:

First, a further consequence of what happened has been that this Court has been deprived of the SCA’s

evaluation of the arguments addressed to us on behalf of the Minister and the Pricing Committee.

Secondly, courts are entitled to expect assistance and not obstruction from litigants in the discharge of their

difficult duties. What happened in the present case not only failed to meet this requirement, but also

evinced a deplorable lack of respect for the SCA, which is the highest court in this country in respect of all

matters other than constitutional matters.

Chaskalson CJ then (at paras 85-91) looks at the substance of the lower courts’ judgments. The High Court said

there were two distinct exercises of public power here: the Committee’s recommendations, and then the

promulgation of the regulations by the Minister. It deals with each in turn. It held that the Committee’s

recommendation was not a final decision, i.e. it did not have a ‘direct, external legal effect’ and was as such

not ‘administrative action’ under PAJA. The regulations themselves were also held not to be administrative

action, because PAJA was read to specifically exclude rule-making from its definition. Nevertheless, both of

these exercises of public power were held to be reviewable under the principle of legality, the common law

and s 33 of the Constitution. In the result the High Court majority found both the Committee’s

recommendations and the regulations consistent with s 33 and as such valid.

As noted briefly above, the SCA said there was no need to consider PAJA because the regulations were invalid

simply because they were ultra vires the empowering legislation, i.e. the Medicines Amendment Act. They

sourced the lawfulness requirement directly in s 33 of the Constitution. So, like the High Court, the SCA side-

stepped PAJA. But the SCA disagreed with the High Court on the merits.

Chaskalson CJ then (at para 92ff) expresses his own attitude to the interplay between the various sources of

review. The first point he makes is that one can’t bypass PAJA and go straight to s 33 of the Constitution:

I do not agree with the approach adopted both by the majority of the High Court, and later by the SCA, that

notwithstanding the provisions of PAJA, the regulations were subject to an independent review for

lawfulness under section 33 of the Constitution …

PAJA is the national legislation that was passed to give effect to the rights contained in section 33. It was

clearly intended to be, and in substance is, a codification of these rights. It was required to cover the field

and purports to do so.

A litigant cannot avoid the provisions of PAJA by going behind it, and seeking to rely on section 33(1) of the

Constitution or the common law. That would defeat the purpose of the Constitution in requiring the rights

contained in section 33 to be given effect by means of national legislation.

So courts must consider in earnest whether PAJA applies. Whether it applies here depends on whether rule-

making constitutes ‘administrative action’. As Chaskalson CJ notes, this issue was left open in Eisenberg. This

means we must endure yet another interminable discussion about the meaning of ‘administrative action’,

starting at para 101.

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But Chaskalson CJ won’t save us some time by going straight to PAJA. Instead, he wanks liberally about the

review of regulations in English law, in our pre-constitutional law, and in s 33. First he refers to the old English

case of Kruse v Johnson [1898] 2 QB 91, which recognized review for gross unreasonableness for the first time.

The reason Chaskalson CJ mentions it here is because the administrative action being reviewed for gross

unreasonableness was actually regulation-making. A municipal authority had passed a by-law banning the

playing of musical instruments within a certain area. This was a cunning plan to stop the Salvation Army, which

typically held parades with marching bands and so on, from doing its proselytizing. The House of Lords held

that this regulation was so unreasonable that Parliament could not have intended to give authority to make it.

Reasonableness review was further developed in the Wednesbury case, which we know and which South

African law came to adopt. Chaskalson CJ’s point is simply that under the common law rule-making was

reviewable on grounds of reasonableness, but only where the unreasonableness was extreme.

Why care about the common law at all? The reason is that the High Court had held that the common law must

be used to interpret the principle of legality (the applicable standard of review given that PAJA was found not

to apply). Chaskalson CJ feels that he must deal briefly with this.

Anyway, Chaskalson CJ then (at para 101) moves onto the position after 1994. He makes a number of very

important remarks. First he says that ‘justifiability’ as used in s 24 of the Interim Constitution meant basically

‘rationality’, which is a lower standard that ‘reasonableness’ as used in s 33 of the final Constitution. Thus

Chaskalson CJ confirms the view of Corder and others, and rejects that of Mureinik, who had said that

‘justifiability’ actually meant ‘reasonableness’. Chaskalson CJ says:

[Reasonableness] is a variable but higher standard, which in many cases will call for a more intensive

scrutiny of administrative decisions than would have been competent under the interim Constitution.

So why is he looking at the common law at all? If regulation-making is not administrative action under PAJA or

s 33 of the Constitution, the question arises (as it did before the High Court) whether we can interpret the

principle of legality (the residual basis for review) using the common law.

Chaskalson CJ then (at paras 110-118) outlines the constitutional requirements of open and transparent

government. He refers to s 1, which lists accountability, responsiveness and openness as fundamental values.

He refers to s 195, which gives the value system of the public service. He also refers to s 32 and PAIA, which

prize access to information.

Finally, at para 122, Chaskalson CJ comes to actually deciding whether rule-making is administrative action as

defined in PAJA and therefore reviewable according to the grounds listed therein. The first difficulty is whether

the definition’s list of exclusions covers rule-making. Chaskalson CJ looks very carefully at s 1(i)(aa), which

specifically excludes the executive powers or functions of the National Executive referred to inter alia in ss

85(b), (c), (d), and (e) of the Constitution. The key point is that s 85(a) is not mentioned by s 1(i)(aa). Section

85(a) refers to the implementation of legislation. Chaskalson CJ says that the omission of this subsection,

despite the inclusion of all the other subsections of s 85, must have been deliberate. After all, if the

implementation of legislation was excluded from the definition, PAJA would do basically nothing. Anyway, the

point is that rule-making is an example of the implementation of legislation, and the implementation of

legislation is not excluded from the definition of ‘administrative action’ by s 1(i)(aa). Chaskalson CJ also notes

that under s 33 of the Constitution the implementation of legislation was also reviewable, as was stated in

SARFU.

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But this is not the end of the matter, because it had been argued by counsel that rule-making is not a ‘decision’

as required by the definition. And it was argued further that one of the exclusions from the definition is action

taken under s 4(1) of PAJA, the implication being that rule-making is actually excluded from the definition.26

Chaskalson CJ rejects both of these contentions, and concludes as follows at para 135:

It follows that the making of the regulations in the present case by the Minister on the recommendation of

the Pricing Committee was “a decision of an administrative nature”. The regulations were made “under an

empowering provision”. They had a “direct, external legal effect” and they “adversely” affected the rights of

pharmacists and persons in the pharmaceutical industry. They accordingly constitute administrative action

within the meaning of PAJA.

But note that this is not a majority view! The Court split on this issue 5-5-1. The views of the five who were on

Chaskalson CJ’s side are heavily qualified. Only O’Regan J and Chaskalson CJ take the view that all rule-making

is administrative action. Ngcobo J, along with Langa DCJ and van der Westhuizen J, said that this particular

example of rule-making was administrative action, but it was not necessary to say that all rule-making is

administrative action. Moseneke J and his four allies said that it was not necessary to decide the matter at all.

Sachs J, on his own, says that rule-making is not administrative action under PAJA and must be reviewed under

the principle of legality. So, one of the most important issues in administrative law remained undecided after

this case.27

From para 136 Chaskalson CJ addresses the nature of the decision at issue. In particular, is it a multi-stage

administrative action? Remember that the High Court had drawn a distinction between the Pricing

Committee’s recommendations and the Minister’s promulgation of the regulations. But Chaskalson CJ takes a

different view. He says that the decision is not multi-stage; it is one seamless process. This allows him to argue

that the Pricing Committee’s conduct has a direct, external legal effect (unlike the High Court which, by

isolating the Pricing Committee’s conduct, could not do so). It was therefore not necessary, according to

Chaskalson CJ, to wait for the Minister to act before bringing a review application.

At paras 143-146 Chaskalson CJ basically introduces the three major grounds of review (which he is going to

consider in detail afterwards): lawfulness, reasonableness and procedural fairness. He makes the important

point that lawfulness applies as a ground of review to all exercises of public power, whether administrative

action or not. In other words, all exercises of public power must be intra vires the empowering statute. As for

reasonableness and procedural fairness, Chaskalson CJ says that these are ‘context specific’. The intensity of

judicial review will depend on the subject matter. He also quotes approvingly the famous words of Steyn LJ,

who said when hearing a similar application that ‘*i+n law context is everything’.

From para 147 Chaskalson CJ addresses the argument that the Pricing Committee’s conduct was procedurally

unfair. The Pricing Committee had done a lot of investigations and had consulted with a number of

stakeholders at certain public hearings. New Clicks argued, however, that not every member of the Committee

was present at each hearing, and thus, although the stakeholders were allowed to make representations, this

was done in a procedurally unfair manner. Of course, we know that—where lawfulness is concerned—the rule

is that, when legislation constitutes a committee in a certain way, a single missing member is grounds for the

invalidation of any decision taken. But here there was no decision taken as such, merely the hearing of public

submissions, and the challenge was one based on procedural fairness. Chaskalson CJ held that in the

circumstances it could not be said that the Pricing Committee had acted unfairly. Even if not all its members 26

These arguments were discussed briefly in first semester, when we did the Currie article. Corder did not discuss them here. 27 And it hasn’t been decided since.

75

were present at all the oral hearings, the written record of the relevant submissions was always given to every

member for scrutiny.

Then at paras 186-188 Chaskalson CJ considers reasonableness. He simply says that there is no need to look at

it as a standalone ground of review here. The reason is that the Medicines Amendment Act specifically

requires that the pricing formulas used in the regulations must be ‘appropriate’. This means that in the

lawfulness enquiry (see below) the Court is in any event going to have to decide whether the formulas are

appropriate. And appropriateness, says Chaskalson CJ, is a higher standard than reasonableness. So it would

be superfluous to do reasonableness review as such.

The rest of Chaskalson CJ’s judgment is simply application to the facts, so for the most part we are not too

interested in it. But he does make three important points. Firstly, at para 199, he discusses the role of

legislative history in interpreting legislation. He notes that in Makwanyane he had said, immediately after

1994, that legislative history could be used by courts in interpreting the Constitution. Now he says that regard

can be had to legislative history (the ‘mischief’ at which the enactment was aimed) when interpreting

legislation too. The reason he cares about this here is that it allows him to consider the explanatory

memorandum accompanying the Medicines Amendment Act.

Then at para 246 Chaskalson CJ deals with review for vagueness. In short, it is a ground of review even though

not explicitly mentioned in PAJA:

It seems to have been assumed by the parties, and in my view correctly so, that vagueness is a ground for

review under PAJA. Although vagueness is not specifically mentioned in PAJA as a ground for review, it is

within the purview of section 6(2)(i) which includes as a ground for review, administrative action that is

otherwise ‘unconstitutional or unlawful’. This Court has held that the doctrine of vagueness is based on the

rule of law which is a foundational value of our Constitution. In Affordable Medicines this Court explained

the doctrine in the following terms:

‘*L+aws must be written in a clear and accessible manner. What is required is reasonable certainty and not

perfect lucidity … The law must indicate with reasonable certainty to those who are bound by it what is

required of them so that they may regulate their conduct accordingly ...’

All the judges seemed to agree with this. But they split on the application to the facts: Chaskalson CJ and some

others said that certain aspects of the regulations were too vague, but others denied that this was so.

At paras 312-315 Chaskalson CJ is forced to return to the themes of law and politics, the separation of powers,

deference, and so on. Basically the SCA had said in deciding what was ‘appropriate’ it had to strike a fair

balance between the interests of the public and that of the pharmaceutical industry. But the applicants argued

that this approach was erroneous, that courts ‘are ill equipped to deal with economic matters’ and mustn’t

make ‘essentially political decisions’. Chaskalson CJ responds thus:

I do not agree that a court should refrain from examining the lawfulness of the dispensing fee simply

because the decision as to what it should be involves economic and political considerations. The exercise of

all public power is subject to constitutional control and it is the duty of courts if called upon to do so to

determine whether or not power has been exercised consistently with the requirements of the Constitution

and the law. In the present case it is contended that the dispensing fee prescribed in the regulations is not

an “appropriate” fee within the meaning of section 22G(2) of the Medicines Act. It was the duty of the

courts which have dealt with this matter, including this Court, to decide whether this contention is correct.

76

Ultimately Chaskalson CJ concludes that the dispensing fee (as opposed to the single exit price) was not

‘appropriate’ and is therefore unlawful.

So his judgment is extremely important. He covers every major ground of review, the role of the courts, the

definition of administrative action, and much more.

o Ngcobo J

Now we move on to the second judgment delivered, that of Ngcobo J (starting at para 421). He firstly asks

whether PAJA applies. As suggested above, he distances himself from the approach of Moseneke J (see below)

and aligns himself—but only partially—with that of Chaskalson CJ:

The Chief Justice has concluded that PAJA applies. Moseneke J, for reasons advanced in his judgment, has

found it unnecessary to consider the question of the applicability of PAJA. He prefers instead to assume

without deciding that the administrative justice standards of lawfulness, reasonableness and procedural

fairness as given effect in PAJA apply in this case. I am unable to agree with this approach. In concluding

that PAJA governs this case, the Chief Justice holds that PAJA, in general, applies to regulation-making. I

prefer to answer the narrow question, namely, whether PAJA applies to the specific power to make

regulations conferred by section 22G(2)(a)-(c) of the Medicines and Related Substances Act (Medicines Act).

For reasons advanced by the Chief Justice, I agree that PAJA is applicable to this narrow question. But there

are additional reasons why PAJA is applicable.

These ‘additional reasons’ are basically that PAJA enables the s 33 constitutional right to administrative justice,

and as such cannot be ignored. Moreover, if courts did ignore PAJA and go straight to s 33, they would create

‘two parallel systems of law’. So Ngcobo J clearly disagrees with Moseneke J et al, the High Court, and the SCA:

like Chaskalson CJ, he says that the applicability of PAJA must be considered in earnest.

This he does from para 443. He pursues the question of whether rule-making is ‘administrative action’ in a

relatively odd way. Much like in Zondi, he says that you can’t go straight to s 33, but then does so anyway (see

especially para 446). Basically, he says you first consider whether the conduct is ‘administrative action’ within

the meaning of s 33 and then decide whether PAJA’s definition can be said to exclude it. So you use s 33 to get

a ‘prima facie’ view of whether the conduct is administrative action, and then you see whether PAJA s 1(1)

rebuts this view. Of course, this to an extent ignores the provisions of PAJA; it largely replaces the first parts of

its definition of ‘administrative action’ with a much more open-ended, Constitution-based definition. This is

remarkably similar to the approach taken by Nugent JA of the SCA in Greys Marine four months previously (to

which Ngcobo J does not refer). Both Ngcobo J and Nugent JA justify this rather devious approach by saying

that PAJA must be interpreted consistently with the Constitution.

Anyway, Ngcobo J then applies this approach to the specific question of whether the making of regulations

under the Medicines Act constitutes administrative action. He firstly confirms Chaskalson CJ’s argument about

the deliberate omission of s 85(a) (implementation of legislation) from the list of exclusions. Then he says (at

para 467) that ‘decision’, as used in PAJA, does not exclude the making of regulations from ‘administrative

action’. Then (at para 468) he holds similarly in respect of the exclusion of s 4(1) decisions from the definition.

He also agrees with Chaskalson CJ (at para 471) that this is a single decision (though one with two parts). He

says that, when viewed in this light, it cannot be said that the decision was legislative in nature (as the State

had argued). In the process of making this point Ngcobo J rejects the classification of functions approach:

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Nor am I persuaded that categorisation of the exercise of public power as adjudicative or legislative

provides the criterion as to whether the exercise of the power in question amounts to administrative

action. The trend in modern administrative law has been to move away from formal classification as a

criterion. It is clear from the decisions of this Court in Fedsure and SARFU that the use of labels in order to

determine whether the action in question is administrative or legislative is not helpful. Thus in Fedsure this

Court held that the process may in form be legislative but yet administrative in substance. Similarly in

SARFU the Court held that what matters is not the functionary who is performing the function in question

but the function that is being performed. It seems to me that the fruitful enquiry is to look at the nature

and effect of the power that is being exercised. This would provide a more rational foundation for

determining what is administrative action.

Corder points out here that there is nothing wrong with classification as such. The problem with the

classification of functions approach is its kneejerk nature: courts would classify an administrative action in a

certain way and then immediately and unthinkingly reach substantive conclusions from that classification (for

example, that procedural fairness is never required when the action is legislative administrative action). The

problem was that courts used the classification as the be-all and end-all of their powers of judicial review. As

Schreiner JA warned way back in the 1950s, one ‘must be careful not to elevate what may be no more than a

convenient classification into a source of legal rules’. The point is that this formalistic classificatory approach

has been abandoned in Traub, Roads Board and others. But there is still utility in classifying things, provided

we aren’t silly about what conclusions can be drawn from this.

Then from para 482 Ngcobo J considers the procedural fairness of the Pricing Committee’s actions. Here he

basically agrees with Chaskalson CJ that the Committee acted fairly. As for the State’s alternative argument

that the absent Committee members didn’t actually consider the written submissions, that is a matter of

lawfulness (specifically, a failure to consider relevant considerations) and as such is dealt with there (see

immediately below).

In paras 500-574 Ngcobo J discusses the ‘appropriateness’ of the dispensing price formulas chosen by the

Committee. He basically says that the Committee’s attempt to explain the appropriateness of their formulas

before the Court was fucking shit and that they had indeed failed to consider the written submissions made by

the interested parties. On these bases Ngcobo J concludes (at para 577) that the Committee actually failed to

apply its mind and therefore acted unlawfully.

o Sachs J

Then we come to Sachs J’s judgment, starting at para 579. He says that he agrees with Chaskalson CJ and

Ngcobo J, but subject to a qualification. The qualification is basically that PAJA is not applicable to rule-making

at all; rather, the ‘constitutionally-entrenched principle of legality’ should be the mechanism used to review

rule-making. Sachs J justifies this conclusion by spelling out a comprehensive and novel approach to

administrative law generally, in the process inflicting on us some of the most pretentious prose you will ever

read.

He begins by wanking furiously about accountability, responsiveness and openness. He later uses these values

to inform his substantive approach. He examines the ‘multiple sources’ of our participatory democracy within

the Constitution.

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He then (at 595) draws a distinction between legislative and adjudicative administrative actions, relying on

Hoexter. Legislation embodies highly policy-laden choices, and applies generally and continuously, affecting

the public as a whole. Adjudication, by contrast, is less policy-laden and affects specific individuals. He says

that the differences between these two forms of administrative action are significant and, as such, they should

not be treated in the same way. In particular, only adjudicative actions, and not legislative actions, should be

reviewable under PAJA. But the value of accountability insists that there must be some remaining way to

review legislative actions. According to Sachs J, the principle of legality must be used for this task.

Although rule-making should be subject to lesser scrutiny than purely administrative decisions, it must be

subject to greater scrutiny than the making of parliamentary legislation. This is because Parliament is making

even more wide-ranging policy choices than rule-makers, and has institutional mechanisms in place such that

the courts don’t need to intervene to ensure participation and accountability. So, Sachs J says that if, as

Pharmaceutical Manufacturers held, legislation made by Parliament must be rational, then an even higher

standard must surely apply to regulations made subordinate to such legislation.28 Sachs J ultimately says there

must be a ‘reasonable fit’ between the regulations and the empowering legislation. He notes that courts used

to be reluctant to review the merits of decisions, but that this reluctance has gradually been eroded and now

the Constitution explicitly requires reasonableness review in a number of contexts.

Anyway, underlying Sachs J’s general approach to administrative law is the idea of variability (which as we

know Hoexter loves). The point is that he thinks rule-making should perhaps be subject to lesser scrutiny than

some other forms of administrative action. The other idea underlying his approach is that ordinary

administrative law (that is, s 33 of the Constitution and PAJA) shouldn’t now be used as the sole mechanism

for restraining public power; the principle of legality, amongst many other mechanisms, can step in. Here are

some nauseatingly ostentatious passages to show what Sachs J is getting at:

[S]ection 33 does not stand alone as a solitary bulwark against arbitrary or unfair exercise of public power.

Administrative justice in itself has less work to do than it had in the pre-democratic era. The courts are no

longer constrained by the doctrine of parliamentary supremacy, when the courts had to ‘claim space and

push boundaries to find means of controlling public power’. As this Court said in SARFU in the era of

constitutional democracy, public administration, which is part of the executive arm of government, is

subject to a variety of constitutional controls …

One may thus envisage a continuum ranging from pure law-making acts at one end, to pure administrative

(adjudicative) acts at the other. All will be subject to constitutional control that is of both a procedural and a

substantive kind. There will be a difference of emphasis rather than of kind, to take account of the different

constitutional and public law values implicated at each end of the spectrum … In this way administrative law

emerges from its constitutional chrysalis as an integrated body of law. Shed of the remnants of its one-time

fragmented and particularistic form, it has been metamorphosed into a comprehensive, principled,

operational and elegant new legal figure.

In short, Sachs J takes a holistic view of all checks on public power, and wants PAJA to slot into this vision only

where it is truly appropriate. Where it is not, other mechanisms with less exacting standards can be used. In

this way we don’t force the entire spectrum of public actions into a single judicial mold.

28

Corder said that Sachs J was equating rationality and reasonableness, and thus contradicting existing precedent. I don’t think he’s doing that at all.

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Finally, Sachs J applies his approach to the facts. He concludes (at para 666) that the State has not convinced

him that the dispensing fee is reasonable or ‘appropriate’.

o Moseneke J

Then we come at para 667 to the leading minority judgment of Moseneke J. He decides the four key issues as

follows. Firstly, as to the process followed in the lower courts, he agrees with Chaskalson CJ. Secondly, he

agrees with every other judge that the Committee did not act procedurally unfairly. Thirdly, he dissents on the

interesting issue of whether rule-making is administrative action. He says (at para 723) that he does not want

to decide it:

I am well aware that there may be compelling reasons for holding ministerial regulation-making reviewable

under PAJA. The difficulty is that there are at the very least equally persuasive considerations that

ministerial legislation is not administrative action and does not fall within PAJA but is controlled and limited

by the Constitution and legislation that confers the power to the minister concerned … Shortly put, I do not

consider myself to have had the benefit of full argument on a matter of much, much importance for the

proper development of our administrative law which hopefully will pay due regard to prudent

considerations which inform the separation of powers required by our Constitution.

He does assume (without deciding) that rule-making is reviewable under PAJA, but that doesn’t affect his

conclusion. He has already said that the Committee acted procedurally fairly. He also says that they are

reasonable and ‘appropriate’. It follows that the pricing regulations are valid (even if PAJA is assumed to

apply). But he makes an exception for the regulations relating to rural and courier pharmacies, which he says

were invalid.29

o Yacoob J

Next up is Yacoob J, starting at para 792. He concurs in Moseneke J’s judgment (and vice versa). He wrote his

own judgment mainly to go into some detail about why he disagrees with Chaskalson CJ’s conclusion that

some of the regulations were void for vagueness. So his judgment gives some nice detail on review for

vagueness post-PAJA.30

o Langa DCJ

Then there is Langa DCJ’s short judgment at paras 842-845. For the most part he concurs in the judgments of

both Chaskalson CJ and Ngcobo J, but he says specifically that he prefers to adopt Ngcobo J’s narrower

approach to the reviewability of rule-making; he says only that this particular act of regulation-making is

‘administrative action’ under PAJA. He also concurs in Yacoob J’s judgment about vagueness (thus dissenting

on this particular score from the majority judgments).

o O’Regan J

29 I don’t understand then how he could say his conclusion was unaffected by whether he says PAJA is applicable. But he’s dissenting anyway so it’s not very interesting. 30

I’m not sure why we are meant to care about this. Corder didn’t say anything more about Yacoob J’s judgment, so perhaps we aren’t. I don’t know. His judgment is fucking long so I’m not going to summarise stuff Corder didn’t seem interested in. FUCK.

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O’Regan J’s judgment, starting at para 846, is also short. She agrees largely (more than any other judge) with

Chaskalson CJ. She sides with Yacoob J on vagueness, though. One fucking exciting point she makes is the

following:

[I]n my view, no sharp line can be drawn between the requirements of procedural fairness and

reasonableness when it comes to assessing the failure by a decision-making body to consider

representations made to it. In my view, such a failure raises issues of both process and substance. To the

extent, therefore, that members of the pricing committee failed to consider properly, or at all, the oral

representations made at the hearings … it constituted a procedural flaw as well as a flaw going to

substance.

Nothing turns on this point in the present case, but Corder seems to find it very interesting. She is pointing to

the fact that it is sometimes impossible to distinguish process and substance. This is an interesting area of

potential development for judicial review, effectively conflating what have up to now been seen as distinct

grounds of review. Recall that Ngcobo J had said that actually he was going to deal with aspects of the

procedural fairness argument under lawfulness—again suggesting that the grounds of review are not easy to

keep separate. It is also interesting to reflect on the principle of legality, which has as grounds of review

lawfulness and rationality but not procedural fairness. Now O’Regan J is saying that one can’t always

distinguish reasonableness (or, presumably, rationality) from procedural fairness. And, most profoundly,

O’Regan J is taking issue with the process/substance distinction, which underlies the appeal/review distinction,

which is normally said to be fundamental to the judicial review of administrative action.

o Van der Westhuizen J

Van der Westhuizen J, like Langa DCJ, sides with Ngcobo J with regard to regulation-making (confining his

conclusion to the reviewability of this act of regulation-making). He agrees totally with Yacoob J on vagueness.

His is the swing vote on the ‘appropriateness’ of the dispensing fee. He sides with Chaskalson CJ so that,

finally, the Court decides by 6-5 that the dispensing fee is ‘inappropriate’ and therefore the regulations are

invalid. Van der Westhuizen J’s reasoning is essentially that it is inappropriate to have a one-size-fits-all

formula for calculating the dispensing fee of all drugs.

Clearly New Clicks is very detailed and fucking boring. You are not expected to memorise all the detail. But it is

extremely important, consolidating much of our existing jurisprudence and providing useful authority on a lot

of different issues.

Here is my summary of the things that I think are really worth knowing for the exam. The three ‘hard law’

propositions emerging from the case are:

It is essential to consider the applicability of PAJA in earnest, before turning to the residual review

standards.

It is still undecided whether rule-making is ‘administrative action’ under PAJA, but five out of six of the

judges who addressed the question in earnest said it was.

Vagueness review is available both under PAJA s 6(2)(i).31

31

Remember that SARFU held it applied under the principle of legality too. This is implicitly confirmed by Yacoob J, who discusses review for vagueness at length although he has said it is not necessary to decide whether PAJA applies.

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Then if you need stimuli for a wank essay it is important to consider:

Chaskalson CJ’s remarks about separation of powers, deference, law/policy.

Sachs J’s vision of the review of exercises of public power.

(To a lesser extent) O’Regan J’s remarks about reasonableness/procedural fairness.

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PROCEDURE AND REMEDIES

1 Rule 53

The starting point for the judicial review of administrative action is Rule 53 of the Uniform Rules of Court,

which reads:

(1) Save where any law otherwise provides, all proceedings to bring under review the decision or

proceedings of any [administrator] shall be by way of notice of motion directed and delivered by the

party seeking to review such decision or proceedings to the [administrator] and to all other parties

affected—

(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed

and corrected or set aside, and

(b) calling upon the [administrator] to despatch, within fifteen days after receipt of the notice of

motion, to the registrar the record of such proceedings sought to be corrected or set aside,

together with such reasons as he is by law required or desires to give or make, and to notify the

applicant that he has done so.

…

(4) The applicant may within ten days after the registrar has made the record available to him, by delivery

of a notice and accompanying affidavit, amend, add to or vary the terms of his notice of motion and

supplement the supporting affidavit.

So basically if you’re pissed with an administrator you begin proceedings with a notice of motion (not a

summons) which you deliver to the administrator and all other affected persons. Then the administrator will

decide if he wants to oppose your application. If he does, then within 15 days of receiving the notice of motion

he must provide the record of the proceedings at which the decision was taken, as well as the reasons for his

decision. The applicant can then, having scrutinized the record, modify his notice of motion and accompanying

affidavit within 10 days.

Rule 53 is a simple provision which puts the administrator on notice and forces him to disclose his shit and

defend himself. It should be noted that instituting proceedings by notice of motion is generally cheaper and

speedier than doing so by summons. A notice of motion is suitable where there is a relatively undisputed body

of written evidence—provided in judicial review applications, of course, by the record. Note further that it can

be a massive burden for the State to have to produce the record of some decisions. For example, if a

complicated tender process is being reviewed, the State is going to have to provide all the tender applications

(each of which might comprise dozens of documents), all the relevant law, rules, policy documents etc. that

govern the process, the transcript or minutes of all the tender board’s proceedings, and so on. The

documentation involved can be incredibly voluminous.

2 Prescription

At common law, one was required to bring one’s review application within a ‘reasonable time’ after the

decision was taken. This so-called ‘delay rule’ was formulated in Wolgroeiers Afslaers (Edms) Bpk v

Munisipaliteit Kaapstad 1978 (1) SA (A). Obviously it was in the interests of efficient administration and

finality to disallow the review of decisions which had been relied upon for many years.

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Wolgroeiers has now been replaced by PAJA s 7(1), which states that review proceedings must be instituted

‘without unreasonable delay’ and not more than 180 days after all internal remedies were exhausted or,

where no such internal remedies existed, when the person became aware of the decision the reasons for it or

when the person ought reasonably to have become aware of these. PAJA thus effectively adopts the

Wolgroeiers rule and then adds to it the specific, 180 day prescription period. However, the 180 day period

may be extended by a court ‘where the interests of justice so require’ (s 9). Courts have at times been

remarkably willing to grant such extension. This attitude is justifiable given that PAJA is still fairly new

legislation. Once people get used to it the courts’ attitude will probably become stricter.

3 Balance of proof

Judicial review of administrative action is decided on the normal civil standard of proof, balance of probability.

4 The new rules32

Our law has used Rule 53, or a basically identical previous provision, ever since judicial review of

administrative action was possible. When PAJA was drafted, however, it anticipated that Rule 53 would be

replaced with a new set of rules within a year after PAJA’s enactment, i.e. by mid-2001. Eventually, on 9

October 2009, a new set of rules applicable to the judicial review of administrative action was promulgated in

the Government Gazette following parliamentary approval. These are still not in force, and they are subject to

a constitutional challenge by Lawyers for Human Rights in the Gauteng High Court. But here we discuss briefly

some of their most important features.

Rule 3 sets out a series of requirements for requesting reasons and the disclosure of information. The rule

contemplates mediation between the parties. This is a relatively novel idea in our administrative law. But there

have been major recent developments in this area in other Commonwealth jurisdictions. Alternative dispute

resolution (mediation, conciliation and arbitration) have become much more important. These are essentially

attempts to avoid judicial review by a court, and the costs and time which come with it. It will always remain

possible, though, to take the arbitrator’s decision on judicial review.

Rule 4 deals with the process for requesting reasons and information. There is a form which one must

complete in order to do this. What has changed from Rule 53 is that now, in your request for disclosure, you

must say what specific documents you want to see. The purpose of this change is to decrease the burden on

the administration (see above). But frequently an applicant will not know the inner workings of the

administration and will not know what documents to request. Often applicants for judicial review only find out

what grounds of review to use once the record has been disclosed. So this new rule is a hindrance for the party

who is already in the inferior position. This aspect forms one of the bases upon which the new rules are being

challenged. Corder thinks something needs to change; ideally a compromise must be struck between the

overbroad Rule 53 and the overly-strict new rules. For example, the administrator could provide a list of

relevant documents and then the aggrieved party picks the ones he wants. Or each administrative body must

have an information officer who decides what must be disclosed.

32

I deleted the boring stuff that he spoke about, e.g. the fact that forms are prescribed for requesting reasons. There is just no way that that could ever be relevant to anyone, ever.

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Rule 6 deals with an application to court to compel the disclosure of reasons. This is for when the

administrator is not complying with the aggrieved party’s request. Rule 7, similarly, deals with an application

to court to compel the disclosure of information.

The only interesting rule remaining is rule 11, which requires a conference between the parties to be held

before the matter is heard in court. The idea is to try and narrow the issues of difference between the parties

and thus streamline any subsequent review proceedings.

In sum, there are good aspects and bad aspects of the new rules. The pro is that it tries to expedite, simplify

and reduce the cost of achieving justice. The con is the fact that rule 4 encourages an opaque attitude by

administrators.

5 Judicial review in the magistrate’s courts

Historically our administrative law has been the exclusive province of the superior courts. But PAJA envisages a

break from our past: s 1(iv) defines ‘court’ to include magistrate’s courts which have been given jurisdiction to

hear administrative-law matters (or a specified class of such matters) by Ministerial notice in the Government

Gazette. In short, then, PAJA tries to improve access to justice by creating the possibility of judicial review

applications being heard by magistrate’s courts. Obviously one can’t unconditionally let all magistrate’s courts

hear such applications, because they don’t have the necessary expertise. So the plan is for the Minister to

confer jurisdiction only on certain magistrates, and only once they have been suitably trained by the South

African Judicial Education Institute. Unfortunately the Institute has no Director at the moment (because the

Minister of Justice and Constitutional Development is a hapless imbecile and has not given the Director a

reasonable salary) and so it remains to be seen whether these plans will be realized.

6 Remedies in PAJA

PAJA s 8(1) states that a court in judicial review proceedings ‘may grant any order that is just and equitable’.

So this gives the courts a lot of flexibility and discretion. The section does continue to give a list of possible

orders, but this list is non-exhaustive, and so justice and equity remain the watchwords.

The listed orders are as follows:

(a) directing the administrator—

i. to give reasons; or

ii. to act in the manner the court or tribunal requires;

The giving of reasons is of course fundamental to administrative law. If the administrator has not yet given

reasons for the decision in question, the court can order him to do so. Often this will be a form of interlocutory

relief.

An interdict can be prohibitory (see (b) immediately below) or structural. Structural interdicts we borrowed

from foreign jurisprudence, especially that of the Indian Supreme Court. The idea is that the court (typically in

socioeconomic rights cases) tells the State to go away, attend to the matter in question, and then return to

court in a few months’ time and report on what’s been happening. These could fit under s 8(1)(a)(ii).

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The next listed order is self-explanatory, allowing for a prohibitory interdict:

(b) prohibiting the administrator from acting in a particular manner

The next subsection, (c), is by far the most important:

(c) setting aside the administrative action and—

i. remitting the matter for reconsideration to the administrator, with or without directions

Setting aside is of course the most common result of judicial review proceedings. Such an order will then

prompt an administrator to retake the decision.

Setting aside raises a difficult question: Is the court, in granting such an order, simply declaring that the act is—

and always has been—invalid? Or is it invalidating a previously-valid act? In other words, is a reviewable

administrative action void or voidable? In theory it has always been regarded as void, but this jars with the

reality of the situation, in that people simply cannot know whether an action is invalid until a court declares it

to be so. The case of Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48 has tried to address

this controversy, and we discuss it in great detail in the next section.

As one can see from the phrase ‘with or without directions’ in s 8(1)(c)(i), the court will in some circumstances

give instructions to the administrator about what to do when he retakes the decision. Judicial deference

means, however, that instructions will be given only in exceptional cases. A good example of such a case is

Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province 2008 (2) SA

481 (SCA), which we discussed previously under lawfulness. We said there that the Court had found that the

Board’s award of a tender (for the removal of medical waste) was reviewable because of a mistake of law. But

providing a remedy was quite difficult: the tender, though unlawful, had now been acted upon by the

consortium to whom it had been awarded, and moreover if the tender was invalidated immediately then there

would be several months where no-one was removing medical waste in the area. Jafta JA noted that PAJA s 8

required him to make any order which is ‘just and equitable’. He identified four interests that are at stake: the

loss to MWM in not having its tender considered, the loss to the innocent consortium which had been

awarded the tender (which had spent lots of money in reliance on the tender contract), the loss to the public if

its basic services are disrupted, and the effect on the public purse in redoing the whole tender process. Jafta JA

was a clever motherfucker in trying to balance these interests. His order was as follows: The Tender Board

must compare MWM’s tender bid to that of the consortium. Only if MWM’s was better would the Board’s

unlawful rejection thereof be invalidated. Then MWM would replace the other consortium as the tenderer,

subject to suitable transitional measures. This meant that there would be no disruption at all unless MWM’s

tender bid had actually been the best.33 This creative order will probably be very useful authority for any court

faced with a reviewable tender.

Section 8(1)(c) continues by identifying in paragraph (ii) two ‘exceptional’ orders which a court may make. The

first is:

(aa) substituting or varying the administrative action or correcting a defect resulting from the

administrative action; or

33 Although Corder discussed the case here, you can see that the Court’s order is actually more innovative than one invalidating the decision and providing instructions for when it is retaken (which is what s 8(1)(c)(i) envisages). The order says that the decision will not be invalid at all unless the Board finds that MWM’s tender was actually the best.

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For reasons of judicial deference the substitution of the administrative action by the court will indeed occur

only exceptionally. A common-law example of this occurring was in the Traub matter: here the applicants had

to come to court again (i.e. for a second time, after the initial litigation which we dealt with previously)

demanding that the Court actually order their promotion. The problem was that—despite the Court’s initial

order setting aside the Administrator’s decision—the Administrator was being a dick and refusing to apply his

mind to the decision when he retook it. He was consistently refusing to promote them, for no good reason,

and so the Court had to step in and elevate its order from a setting aside to a substitution.

The next subparagraph, (bb), is even more important:

(bb) directing the administrator or any other party to the proceedings to pay compensation

We saw this provision referred to in Sachs J’s minority judgment in Steenkamp NO v Provincial Tender Board

of the Eastern Cape 2007 (3) SA 121 (CC). Sachs J’s point was essentially that the matter should not have been

argued in delict, because administrative law, via s 8(1)(c)(ii)(bb), provides an appropriate remedy. The Court

could have used this provision to order the Tender Board to compensate Balraz for its wasted expenses, or it

could even have ordered the successful tenderer to pay such compensation (this is the effect of the phrase ‘or

any other party to the proceedings’). This is a brand new possibility which PAJA has created—traditionally it

was taken for granted that the payment of compensation simply could never be an administrative-law

remedy—and Corder considers it to be of major significance.

The next remedy listed is:

(d) declaring the rights of the parties in respect of any matter to which the administrative action relates

Then there is:

(e) granting a temporary interdict or other temporary relief

Any interdict, prohibitory or structural, can be temporary. Often relief will be temporary where it is

interlocutory. For example, in Joseph v City of Johannesburg 2010 (4) SA 55 (CC) the Court ordered the City to

reconnect the applicants’ electricity pending the outcome of the case. Interlocutory relief might also take the

form of a spoliation order, i.e. an order directing the restoration of property expropriated by the

administrator.

The final, obvious order under s 8(1) is:

(f) as to costs

PAJA then in s 8(2) deals separately with remedies for unreasonable delay in taking a decision (a ground of

review which we discussed under lawfulness). Again the order must be ‘just and equitable’. And again a non-

exhaustive list of possible orders is provided, including the most obvious one: ‘directing the taking of the

decision’.

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7 Oudekraal34

(a) Introduction

The most interesting case on administrative-law procedures and remedies is Oudekraal Estates (Pty) Ltd v City

of Cape Town [2004] ZASCA 48. This judgment is extremely dense and confusing, and forms just one part of a

protracted series of legal disputes.

Before you can understand the case, you need to know certain foundational things. The first is about the

void/voidable controversy (mentioned briefly above). It is regarded as a fundamental rule that unlawful

administrative actions are void ab initio. But, in practice, of course, people cannot know that an administrative

action is unlawful until it is declared invalid by a court. Or, even if they are convinced an action was invalid, it

would be contrary to the rule of law to allow them simply to ignore it. The upshot is that unlawful

administrative actions must be allowed to have legal consequences until they are actually declared invalid by a

court. But if this is so, it seems paradoxical to say that unlawful administrative acts are void. The obvious

solution, as some writers pointed out, was to say that, in truth, unlawful administrative actions are voidable.

Baxter disagreed, saying that it was misleading and contrary to the principle of legality to suggest that an

unlawful action is valid until declared otherwise. The correct approach, he said, was that the action is indeed

void, but that it must be treated as valid until a court has authoritatively declared it to be invalid. 35

The second thing you need to know is what a collateral challenge is. A collateral challenge is ‘a challenge to the

validity of an administrative act that is raised in proceedings that are not designed directly to impeach the

validity of that administrative act’. In other words, the act is being challenged other than in judicial review

proceedings with the aim and object of showing that act to be invalid. For example, in the English case of

Boddington v British Transport Police [1999] 2 AC 143 (HL) a man was prosecuted for smoking on a train. In

the criminal proceedings he challenged the validity of the by-law which created the offence. This was of course

a collateral challenge to the by-law: the man had not applied for the judicial review of the promulgation of the

by-law, but was raising its invalidity as a defence to a criminal charge. Collateral challenges are sometimes

problematic because courts are reluctant to impugn the validity of an administrative action which is not

directly the subject of the proceedings. This is probably a result of courts’ general reluctance to tread on the

toes of the other branches of government, but there are also more immediate concerns, for example the fact

that the administrator in question probably won’t be a party to the proceedings.

The third thing is that the void/voidable controversy only really matters in the context of a collateral challenge.

In judicial review proceedings, the court is concerned fundamentally with whether or not to set aside the

action in question. And, if it decides to do so, the void/voidable distinction becomes irrelevant: there is no

doubt at all that, once the decision is set aside, it is totally invalid. This is true even if we regard unlawful

administrative actions as voidable rather than void. So the precise legal effect of unlawful administrative

actions is only controversial before it is set aside. And, virtually by definition, the only time a court needs to

consider the legal effect of an administrative decision without being positioned to set it aside (and thus to

resolve the difficulties with its validity) is when it is faced with a collateral challenge.

34 I thought this was really poorly taught, so this section is basically just my own account based on my reading of the case and, where relevant, Hoexter. There is a lot of very confusing detail, but most of it has limited application to anything else. I would not prioritise trying to understand it properly. 35

Until this section, I was using the terms ‘unlawful’, ‘reviewable’, ‘invalid’, and ‘set aside’ almost interchangeably. This glosses over the complexity of the relationship between these concepts, as the discussion of Oudekraal shows.

88

As we will see, this is precisely the problem which faced the SCA in Oudekraal. The Court waded into the

void/voidable controversy because it was necessary to do so in the course of addressing the collateral

challenge raised by the respondent.

(b) Facts

Oudekraal Estates was the owner of property on the slopes of the Twelve Apostles, just next to Camps Bay. It

had bought the property in 1965. The predecessor in title had drawn up plans in 1957 to develop a township

on the land. Those plans were approved by the Administrator of the Cape. Eventually they were approved also

by the Surveyor-General and registered by the Registrar of Deeds in 1962. But both of these steps were taken

too late; they did not comply with the time periods prescribed by the relevant legislation. But the

Administrator had in each case purported to waive the time period, so the plans were pushed through.

In 1996, almost forty years after they were approved, Oudekraal decided to follow through with the plans and

develop the township. It submitted its engineering services plan to the Cape Metropolitan Council for

approval, and made public its intentions. But there were strong objections from the public, because numerous

Muslim religious leaders from the seventeenth century were buried on the land. The graves included three

kramats, graves of special significance which are frequently visited by Muslims as part of their religious rituals.

Presumably the State didn’t give a shit about these graves during apartheid, when the building plans were

approved, but now they were of serious concern. The plans made no allowance for the graves at all, placing

various structures right over the kramats. SANParks and the Heritage Resources Agency were also pissed off

because the lovely slopes of Table Mountain were going to be ass-fucked by the proposed developments.

The Council, perhaps because of these complaints, simply refused to approve the engineering services plan.

They justified their attitude by saying that the Administrator had acted ultra vires in purportedly condoning

non-compliance with the time periods back in the 1950s, the implication being that the registration of the

plans had been invalid for non-compliance with the time periods and therefore Oudekraal did not have the

development rights reflected in the Deeds Registry. Oudekraal applied to the High Court for an order declaring

that the Administrator had in fact acted intra vires, that all the subsequent acts were accordingly ‘of full force

and effect’ and as such it had the right to develop the township on the basis of the duly-registered plans.

(c) High Court judgment

Davis J refused to grant such an order, essentially agreeing with the Council. He held that the Administrator’s

purported condonation of the failure to comply with the time periods was unlawful because it had occurred

too late. In other words, the condonation itself had to be given within certain prescribed periods, and this had

not been done. This meant that the registration of the plans in 1962 was unlawful for non-compliance with the

time periods. Of course, the right to develop the township—the subject of the declaratory relief sought by

Oudekraal—was dependent on the registration of the plans.

One might think that if the registration was unlawful it would follow self-evidently that the registration was

invalid and thus incapable of creating any property rights. We have already suggested that this is not the case:

in practice, a court order is needed to establish conclusively the act’s invalidity.36 The question thus becomes:

36 As suggested above, this is so in practice even if the theoretical construction favoured is that any unlawful act is void ab initio.

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Is it acceptable for the Court to invalidate the registration now? Again, one would think that if a decision is

reviewable then self-evidently it is acceptable to invalidate it.

But it was not so simple. Firstly, this was a collateral challenge: this was an application for declaratory relief,

not judicial review of the registration. Secondly, and besides the normal concerns about collateral challenges,

Oudekraal raised the ‘delay rule’ formulated in Wolgroeiers37 to try and convince the Court not to admit this

particular challenge. In other words, Oudekraal was arguing that an unreasonable time had passed since the

registration and as such it was no longer susceptible to invalidation by a collateral challenge.

Davis J’s response was to say that judges always have a discretion to admit a collateral challenge. This meant

that the Wolgroeiers rule was subject to this discretion here. While noting his reluctance to effectively deprive

the applicant of property rights which had been registered for 35 years, Davis J ultimately decided to exercise

his discretion and allow the collateral challenge. The factors he considered relevant were the following:

the kramats are of profound importance to the Muslim community, and engaged their constitutional

rights;

Table Mountain, an important heritage site, would get ass-fucked by the proposed development.

Oudekraal had for thirty years made no attempt to exercise those rights;

massive changes to the regulatory framework in that time had rendered the plans, by Oudekraal’s own

admission, outdated;

because Oudekraal had done nothing to necessitate the challenge until now, it was hard to blame the

Council for its delay; and, perhaps most importantly,

if Oudekraal’s argument was upheld it would amount to the Court’s saying that an illegal action had

transmogrified into a legal decision through mere lapse of time, and this ‘would undermine the very

principle of legality which is now so central to our constitutional enterprise’.

So Oudekraal was denied the relief for which it had applied and, worse, the registration of its development

rights was invalidated by virtue of the Council’s collateral challenge. It therefore appealed to the SCA.

(d) SCA judgment

Summing up the issues, Howie P and Nugent JA write at the start of their joint judgment:

This appeal raises important questions for the rule of law. It raises the question whether, or in what

circumstances, an unlawful administrative act might simply be ignored, and on what basis the law might

give recognition to such acts.

This indicates that they are going to find that someone has done something unlawful, and indeed that is the

first substantive finding they make. But, whereas the unlawful decision identified by the High Court was the

registration itself (which was rendered unlawful in turn by the unlawfulness of the Administrator’s purported

extension of the time periods), Howie P and Nugent JA state:

In the view that we take of the case it is not necessary to decide whether the extensions of time that were

granted by the Administrator were lawful. In our view the matter can properly be decided by focusing on

the Administrator’s grant of the application to establish Oudekraal Township.

37 The dispute arose before PAJA was enacted, so the common-law rule still applied.

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So the SCA decides to look at the unlawfulness of the initial approval of the plans by the Administrator, rather

than the pursuant registration. In this regard, they say that there was no evidence that the Administrator had

considered the graves in granting such approval. He must therefore have been ignorant of their presence or

simply refused to consider them. Since it was (and still is) a common-law crime to desecrate a grave, the law

clearly required any administrator to make decisions with knowledge of, and regard to, any relevant graves. It

follows that, by not doing so, the Administrator either made a material mistake of fact (if he didn’t know of the

graves) or ignored a relevant consideration (if he knew of them but ignored them). Either way, the granting of

approval was unlawful.

As stated, the High Court found the registration to be invalid per se, for non-compliance with the prescribed

time periods. This meant that it was very easy for it to conclude that Oudekraal had not had the development

rights reflected in the Deeds Registry. But the SCA has now chosen to say, instead, that the initial approval by

the Administrator was invalid. This means, unfortunately, that they have a lot more work to do if they want to

find that the registration—the proximate determinant of Oudekraal’s development rights—is invalid.

It is crucial to remember that these were not judicial review proceedings of the Administrator’s approval, and

so the Court was not able simply to set aside the approval and be done. If they could do this, then the

Administrator’s approval would be authoritatively declared invalid, and then it would follow irresistibly that

the registration made pursuant to it was also invalid (and, in turn, it would follow that Oudekraal had no

development rights). But these were not judicial review proceedings at all.

Of course, the validity of the Administrator’s approval is deeply relevant to whether to grant the declaratory

relief which Oudekraal was asking for. And in fact the Court has found the Administrator’s approval to have

been invalid. And yet it is tricky for the Court to take this into account, precisely because it is not the direct

subject matter of the proceedings. The Court spends the rest of its judgment essentially dealing with this

problem. It begins by saying the following:

[T]he question that arises is what consequences follow from the conclusion that the Administrator acted

unlawfully. Is the permission that was granted by the Administrator simply to be disregarded as if it had

never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s

approval and all its consequences merely because it believed that they were invalid provided that its belief

was correct? In our view it was not. Until the Administrator’s approval (and thus also the consequences of

the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal

consequences that cannot simply be overlooked. The proper functioning of a modern state would be

considerably compromised if all administrative acts could be given effect to or ignored depending upon the

view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has

always recognized that even an unlawful administrative act is capable of producing legally valid

consequences for so long as the unlawful act is not set aside.

This quotation reflects my introductory remarks about the void/voidable controversy: It is a fundamental

proposition in administrative law that unlawful administrative actions are void. But it would be completely

untenable for practical reasons to say that people can just ignore administrative actions which they regard as

void. Therefore the act, and its consequences, must be respected until it is actually set aside by a court.

This raises an anomaly: How can a void act have legal consequences? The Court raises the obvious solution, i.e.

saying that the act is not void but simply voidable, but it does not accept this. Instead it applies the approach

of Christopher Forsyth, a former UCT lecturer and now a leading English administrative lawyer, and in

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particular his ‘second actor theory’. This theory relies on a distinction between an administrative action’s

existing in fact and its existing in law. An unlawful administrative action is invalid in law (as is traditionally

insisted) but it continues to exist as a matter of fact (since of course the action has been taken and seems valid

on the face of it).

That is simple enough, but it is not the end of the story. The real question is whether a subsequent act,

performed by another administrator (the so-called ‘second actor’) in reliance on the invalid first act, is itself

invalid. The answer is that the second act will be invalid only where the validity in law of the first act is a

precondition for the validity of the second. Sometimes the mere factual existence of the first action is enough

to make the second action valid, so the second action is valid notwithstanding the (legal) invalidity of the first

action. At other times, however, the first action’s validity in law (and not merely in fact) is a necessary

condition for the validity of the second, and so the second act will be invalid by virtue of the invalidity of the

first. To relate this theory to the facts in casu: The Administrator’s initial approval of the plans was clearly

invalid in law, but it existed in fact. Can it then be said that the registration of the plans in the Deeds Registry—

as stated, the proximate determinant of Oudekraal’s current rights—was invalid? This depends on whether the

validity of the Administrator’s approval was a precondition for the validity of the registration.

The Court has not yet told us when the validity of the first act is a precondition for the validity of the second.

The Court begins its explanation by dealing with cases where coercion is at issue:

It is in those cases – where the subject is sought to be coerced by a public authority into compliance with an

unlawful administrative act – that the subject may be entitled to ignore the unlawful act with impunity and

justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge to the

validity of the administrative act.

This quotation reveals how collateral challenges are bound up with the question we are discussing, that is,

whether the validity of one administrative action depends on the validity of another. This is because a

collateral challenge is often aimed precisely at showing that, because the first action (the one collaterally in

issue) is invalid, so is the second (the more proximate subject of the dispute). One could only show this, of

course, if the validity of the second action depends on the validity of the first.

More to the point, what the Court is saying is that one particular case where the validity of the first action is

almost definitely a precondition for the validity of the second is where the second action involves the use of

coercive power bestowed by the first. In this regard the Court refers to the English case of Boddington v

British Transport Police, mentioned above. When Boddington was prosecuted under the anti-smoking by-law,

the House of Lords held that he was entitled to bring a collateral challenge to the by-law to avoid prosecution.

To hold otherwise, and thus to permit the imposition of a criminal sanction on a person for breach of an

unlawful by-law, would be ‘a fundamental departure from the rule of law’. This case shows that criminal

proceedings are one salient set of cases in which the validity of the first action (the enactment of the penal

provision) is a precondition for the validity of the second (prosecution under that provision). And, what is

basically the same thing, the defendant in such proceedings will always be entitled to raise a collateral

challenge. Thus the House of Lords describe a defence to the charge in a criminal case as the ‘paradigm’ of

collateral challenge.

In other circumstances, where coercion is not at issue, we need to fall back on the broader, underlying test.

This SCA relies heavily on a passage in Boddington here:

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[I]n every case it will be necessary to examine the particular statutory context to determine whether a court

hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments of invalidity of

subordinate legislation or an administrative act under it. There are situations in which Parliament may

legislate to preclude such challenges being made, in the interest, for example, of promoting certainty about

the legitimacy of administrative acts on which the public may have to rely … However, in approaching the

issue of statutory construction the courts proceed from a strong appreciation that ours is a country subject

to the rule of law. This means that it is well recognised to be important for the maintenance of the rule of

law and the preservation of liberty that individuals affected by legal measures promulgated by executive

public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in

court proceedings.

The SCA says, then, that the applicable standard is ‘the proper construction of the relevant statutory

instrument in the context of principles of the rule of law’. That is, one must consider whether the relevant

statute makes the validity of the first action a precondition for the validity of the second. In the present case,

for example, the question is whether the 1950s statute governing the approval and registration process

intended the registration to be invalid if the approval underlying it was invalid.

If the answer is ‘Yes’, then—contrary to what was held in the High Court—a court has no discretion but to

allow the collateral challenge. The court only has a discretion to set aside (or not set aside) an action where

that action is being directly challenged in judicial review proceedings. In other words, if a collateral challenge is

brought to one action, the validity of which is a precondition for the validity of some action which is directly

relevant to the outcome of the dispute, then the court has a duty to declare the first action invalid. But in

judicial review proceedings of the first action itself, the court has a discretion to decide what remedies are

most equitable in the circumstances; it is allowed to decide whether setting the action aside is a remedy which

strikes an appropriate balance between the interests at stake. All of this the Court expresses as follows:

It is important to bear in mind (and in this regard we respectfully differ from the court a quo) that in those

cases in which the validity of an administrative act may be challenged collaterally a court has no discretion

to allow or disallow the raising of that defence: the right to challenge the validity of an administrative act

collaterally arises because the validity of the administrative act constitutes the essential prerequisite for the

legal force of the action that follows and ex hypothesi the subject may not then be precluded from

challenging its validity. On the other hand, a court that is asked to set aside an invalid administrative act in

proceedings for judicial review has a discretion whether to grant or to withhold the remedy. It is that

discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes

the indispensable moderating tool for avoiding or minimizing injustice when legality and certainty collide.

Each remedy thus has its separate application to its appropriate circumstances and they ought not to be

seen as interchangeable manifestations of a single remedy that arises whenever an administrative act is

invalid.

The Court then reiterates that legal certainty is an important virtue in a modern State, the implication being

that even invalid acts must sometimes be able to have valid consequences. But there is a countervailing

principle: ‘the rule of law dictates that the coercive power of the state cannot generally be used against the

subject unless the initiating act is legally valid’. The nuanced approach outlined above is thus necessary.

Howie P and Nugent JA sum up as follows:

[T]he substantive validity or invalidity of an administrative act will seldom have relevance in isolation of the

consequences that it is said to have produced – the validity of the administrative act might be relevant in

relation to some consequences, or even in relation to some persons, and not in relation to others – and for

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that reason it will generally be inappropriate for a court to pronounce by way of declaration upon the

validity or invalidity of such an act in isolation of particular consequences that are said to have been

produced.

To recap: Whether an act is valid depends in the first place on whether it is being challenged directly or

collaterally. If it is challenged directly, the court must only declare it invalid if it is just and equitable to do so in

the broader context of the dispute. If it is challenged collaterally, the court must only declare it invalid

depending on its consequences: firstly, whether it is now being deployed to coercive effect; and, more

broadly, whether the action directly in issue in the relevant proceedings is dependent for its validity on the

action subject to the collateral challenge. Thus the Court implicitly gives their answer to the void/voidable

dispute: an unlawful action cannot ever be said to be absolutely void or valid; ‘validity’ depends on the

circumstances, the proceedings, and the consequences with which you are concerned.

Turning now to the facts of the case, Howie P and Nugent JA say that the collateral challenge brought by the

Council was ‘misplaced’: the validity of the registration was not dependent on the validity of the

Administrator’s approval. This is because, on a proper construction of the relevant legislation existing in 1962,

it could not reasonably be said that the legislature intended for the Registrar of Deeds to satisfy himself that

the Administrator had acted validly before he acted on each purported approval. Moreover, there was no

coercive conduct being undertaken here so as to compel a different conclusion.

The upshot is that the registration was lawful despite the invalidity of the Administrator’s approval, so

Oudekraal did have the right to build the township on its land. Accordingly the Council ‘was not entitled simply

to ignore that when deciding whether or not to carry out its public functions’, i.e. approve the engineering

services plan. This is a significant departure from the High Court judgment, in which Davis J held that the

registration was unlawful and so Oudekraal had never had development rights.

But, surprisingly, the SCA nevertheless reaches the same outcome as the High Court. That is, it refuses to grant

Oudekraal’s prayer for declaratory relief. It gives two reasons for doing so. Firstly, ‘the exploitation of property

rights is always constrained by such laws as exist at the time that they are sought to be implemented’. The Bill

of Rights’ protection of cultural and religious practices, as well as the National Heritage Resources Act, means

that the township cannot be built even if the registration in 1962 was valid. Secondly, and more

fundamentally, Oudekraal prayed for a declaration that its ‘development rights … are of full force and effect’. If

the Court was to grant this extremely broad and unequivocal prayer it would basically be saying that

Oudekraal’s rights are totally unassailable. This would preclude the judicial review of any of the steps in the

entire process by which the township plans were approved and registered. Particularly given that the

Administrator’s initial approval was found to be invalid, that would be unacceptable:

It is not open to us to stifle the right that any person might have to bring [judicial review] proceedings, or to

pre-empt the decision that a court might make if it is called upon to exercise its discretion in that regard.

That is not a remote and academic prospect, bearing in mind that the approval was invalid. No doubt a

court that might be called upon to exercise its discretion will take account of the long period that has

elapsed since the approval was granted, but the lapse of time in itself will not necessarily be decisive: much

will depend upon a balancing of all the relevant circumstances, including the need for finality, but also the

consequences for the public at large, and, indeed for future generations, of allowing the invalid decision to

stand. In weighing the question whether the lapse of time should preclude a court from setting aside the

invalid administrative act in question an important – perhaps even decisive – consideration is the extent to

which the appellant or third parties might have acted in reliance upon it. On the material that is before us it

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is by no means clear that the appellant – or any third party for that matter – has in fact acted in reliance on

the approval notwithstanding the elapsing of some forty years.

The Court is here drawing on its earlier comments to the effect that an order of invalidity should not be made

‘in a vacuum’: one cannot say that such an order would be equitable unless one knows the interests at stake in

the broader context of the dispute. That is why the absolute relief sought by Oudekraal is unacceptable.

Ultimately the appeal was dismissed, and Oudekraal was left without a declaration of its rights.

(e) Subsequent litigation

The suggestion throughout the judgment was that the Council must bring a judicial review application of the

Administrator’s decision, and then the court will decide—on the particular facts—whether to set aside his

decision. That is indeed what the Council did four months later. The judgment on appeal in this subsequent

matter is reported as Oudekraal Estates (Pty) Ltd v The City of Cape Town [2009] ZASCA 85.

Oudekraal did not dispute that the Administrator’s decision was invalid. The SCA had, after all, explicitly

declared that it was invalid in the above-discussed judgment. Rather:

The ‘delay rule’ [as formulated in Wolgroeiers] in relation to administrative review was the sole basis

advanced on behalf of [Oudekraal] to contest the application by the three respondents. In reviewing and

considering whether to set aside an administrative decision, courts are imbued with a discretion, in the

exercise of which relief may be withheld on the basis of an undue and unreasonable delay causing prejudice

to other parties, notwithstanding substantive grounds being present for the setting aside of the decision.

The application of the delay rule would in a sense ‘validate’ a nullity.

In other words, Oudekraal was saying that the Administrator’s decision could not be set aside, despite being

invalid, because it happened so long ago.

Van Reenen J in the High Court basically ignored the fact that the apartheid government took no action to

invalidate the decision and looked at the Council’s actions since 1996. He said that their ‘supine attitude’ to

the matter, deliberately failing to take any steps to institute judicial review proceedings and just leaving

Oudekraal to bring the matter to court, was unacceptable and therefore their delay was unreasonable.

However, this was not the end of the enquiry: the second leg was to ask whether the court should ‘condone’

the delay. Van Reenen J’s answer was that he would indeed do so. The relevant factors he considered in this

regard were the following:

the Muslim community has a strong interest in the kramats, and constitutionally-entrenched rights to

cultural and religious freedom;

the development would ass-fuck Table Mountain, a valuable heritage resource ‘for all humanity’;

much of the legislation impugning the development had only recently been enacted;

the financial prejudice to Oudekraal was not too severe: it had not bought the property with the

specific intention of developing a township on it, and it would still make a ‘substantial’ return on its

investment by selling the property without development rights; and

the principle of legality, an incident of the constitutionally-entrenched rule of law, means that

unlawful administrative actions should as far as possible be set aside.

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Because this disposed of Oudekraal’s only argument, Van Reenen J set aside the Administrator’s approval.

Oudekraal then appealed to the SCA, whose unanimous judgment is given by Navsa JA. He confirms Van

Reenen J’s two-legged approach to the Wolgroeiers rule: first he must decide whether the delay was

unreasonable, and then he must decide whether this precludes his reviewing the decision. Navsa JA assumed

that the Council’s delay was unreasonable, meaning that the key question, as it had been for Van Reenen J,

was whether the Court was prepared to condone such delay. Navsa JA also answered ‘Yes’, looking at similar

factors to Van Reenen J:

the purchase of the land was part of a long-term investment strategy and not directed specifically

towards the development of a township;

as a result, it was difficult to see what reliance had been placed on the Administrator’s approval;

also as a result, Oudekraal knowingly took the risks of changes in the market conditions, social and

political changes, changes to the regulatory framework, and so on;

although there would be financial prejudice to Oudekraal if the approval was set aside, it still stood to

make a ‘substantial’ return on its initial investment in the property;

the graves cannot be exhumed and moved elsewhere, because that is contrary to the Muslim faith;

the development would ass-fuck Table Mountain, which is pretty;

the Constitution marks a ringing rejection of all that was bad about our past, including the oppression

of minorities like the Muslim community, and entrenches rights to religious and cultural freedom and

the protection of the environment;

the principle of legality means that unlawful administrative actions should as far as possible be set

aside;

in response to the argument that legal certainty requires administrative acts to be final: ‘Finality is a

good thing, but justice is better’.38

For these reasons Navsa JA held that the court a quo’s decision ‘cannot be faulted’ and accordingly the appeal

must fail. He does show a degree of sympathy to Oudekraal by not giving a full costs order against it. He

reasoned that the three respondents were advancing the same arguments, so it was wasteful for each

respondent to employ its own counsel.

(f) Lessons

The main judgment in Oudekraal is an obscenely complicated pile of poo. I certainly don’t understand it.

Neither do you. Neither does Corder. So let’s forget about all that shit I just wrote, and do what our law degree

has trained us to do: rote learn the ratio and ignore everything else. In this spirit I have distilled from the case

the few principles that are remotely useful:

An unlawful administrative action is void in theory, but in practice people must abide by it until it is

declared invalid by a court. Thus, until it is set aside, it is sometimes capable of having legal

consequences.

When, exactly? Assume one administrative action is unlawful but has not been set aside. Assume

further that a second administrative action is taken on the assumption that the first was valid. That

second action will be valid if and only if the validity of the first action is not a precondition for the

validity of the second.

One determines whether this is so by interpreting the relevant legislation (i.e. the legislation under

which those actions were taken). On the one hand, the rule of law requires legal certainty, and so if an

38 I just came.

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action seems valid (even if it is not) it should be regarded as having valid consequences. On the other,

if people are being coerced on the basis of an unlawful administrative action then that means almost

certainly that the act must not be allowed to have valid consequences.

These issues mostly arise in collateral challenges, where the validity of an administrative action is

raised in proceedings other than proceedings for the judicial review of that particular action.

But even in judicial review proceedings, a court always has a discretion to set aside an unlawful

action. It must only do so where it is just and equitable to do so in the circumstances.

For these reasons, ‘validity’ is a relative concept; it always depends on the particular proceedings and

the particular context whether or not an unlawful administrative action has had legal consequences.

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COMPARATIVE ADMINISTRATIVE LAW39

1 Creyke, ‘Beyond the Courtroom Doors’

This article is by Robin Creyke, a leading Australian administrative lawyer. She tracks the major reforms which

have occurred in Australian administrative law beginning in the 1970s. As the title of the article suggests, the

essence of the reforms is a decisive move towards non-judicial forms of review. Australian law was for many

years regarded by administrative lawyers as the leading Commonwealth jurisdiction, because these reforms

were so pioneering.

In 1977 the Australians set up the Kerr Committee, tasked with recommending major reforms in the area of

administrative law. Five significant changes resulted from this:

1. The enactment of the Administrative Decisions (Judicial Review) Act of 1977, the Australian version of

PAJA, which essentially codifies their law on judicial review.

2. The enactment of the Administrative Appeals Tribunal Act of 1977, which created the general

administrative appeals tribunal (GAAT).

3. The enactment of access to information legislation.

4. The establishment of a national ombudsman.

5. The establishment of a Human Rights Commission and Equal Opportunity Commission.

6. The establishment of a Federal Court of Australia, on top of the pre-existing state court system, to

bear primary responsibility for dealing with administrative-law matters.

It was the establishment of the GAAT, in particular, which marked the decisive shift away from judicial review

and towards a system of administrative law based primarily on non-judicial forms of review. The idea behind

the GAAT was to have a cheap, speedy and accessible administrative tribunal which could hear any matter at

all. Shortly after its establishment, practical considerations meant that specialized subdivisions were set up to

deal with tax matters, social security, immigration and refugee affairs, and so on. But the catch-all GAAT

continued to exist. The courts retained review jurisdiction, however, and one could go to court for the review

of the GAAT’s decision.

Parliament has to decide, whenever it makes legislation, whether the GAAT can hear disputes arising from the

implementation of that legislation by administrators. So the GAAT’s jurisdiction does depend ultimately on

Parliament’s wishes. In practice, Parliament tended to give the GAAT jurisdiction in a very wide range of

matters.

But serious damage was done to Australia’s system of administrative law for unfortunate political reasons.

Australians are really racist, so they get grossed out by the ‘boat people’ from South-East Asia who wash up on

their shores and want to claim asylum. These refugees were using administrative-law mechanisms to challenge

a lot of decisions made by the immigration authorities. Politicians played on the electorate’s racism and

promised to crack down on this. The government started to use privative clauses (a.k.a. ouster clauses) to

protect the immigration authorities from judicial scrutiny. The Australian High Court resisted these incursions

on its jurisdiction, even in the absence of a justiciable bill of rights, but nevertheless the robustness of

Australian administrative law has been seriously eroded.

39 Corder went through this briefly in the last lecture. I thought it would be of quite limited relevance, as he surely can’t ask a whole question on comparative law. But then I saw that he referred specifically to Creyke in a past paper question. Still, the question was really about non-judicial forms of review, so it’s an unclear whether it’s worth knowing the details of this topic. My guess is that it isn’t.

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Nevertheless Corder thinks that the basic models and ideas used in Australia’s reforms could be usefully

implemented in South Africa.

2 Saunders, ‘Apples, Oranges and Comparative Administrative Law’

This article is by Cheryl Saunders, another Australian bitch. She looks at administrative law throughout the

Commonwealth, and discusses certain trends. As implied by her title, however, she notes at the outset that it

can be fruitless to compare countries as different as, say, Zimbabwe and Canada.

The first trend she discusses is the constitutionalisation of administrative law. Namibia was the first country to

include a right to administrative justice in its constitution. Canada,40 South Africa, Uganda and Malawi have

since followed suit. New Zealand and England have enacted human rights legislation to similar effect.

The second trend is the codification of administrative law. Here Saunders refers to PAJA and Australia’s

Administrative Decisions (Judicial Review) Act.

The third trend is the role of the courts within the separation of powers. Saunders says that courts are able to

scrutinize administrative action more closely than before.

The fourth trend is the move away from judicial review as the sole mechanism to achieve administrative

justice. The two main manifestations of this are the following: firstly, an attempt to ensure better

administrative decisions in the first place, for example by training administrators; and, secondly, creating

tribunals to make it easier to challenge bad decisions. Saunders notes with regard to tribunals that they

occupy an uneasy space at the moment: they perform quasi-judicial functions but are part of the

administration rather than the independent judiciary. Some writers suggest that we should focus on making

judicial review speedier and cheaper, rather than relying too much on administrative tribunals. Others say we

must just make sure that tribunals don’t supplant the courts, i.e. that litigants remain free to pursue judicial

review if they wish. Saunders suggests that the best solution is to find a special intermediate space for

tribunals, essentially as a fourth branch of government.

3 Dyzenhaus, ‘Accountability and the Concept of (Global) Administrative Law’

Dyzenhaus’s article is basically about international administrative law. With the various bodies which were

established after World War II (the United Nations, the World Bank, the International Monetary Fund, the

World Trade Organization, and so on) and the globalization which has since occurred, there is a clear and

irresistible move towards global governance. The question for administrative lawyers is: How do you hold

these supra-national actors to account? Obviously national laws cannot do it.

These international bodies sometimes make internal decisions. For example, the World Bank might fire one of

its employees unfairly. To whom can the aggrieved employee turn for administrative justice? This is a relatively

minor problem because most of the major international organizations have internal dispute-resolution

tribunals.

40

Well, sort of. There is no administrative justice provision, but the courts have read basically read in such a right by combining the due process right and some other shit.

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The trickier question is how to regulate their external decisions. These bodies exercise obscene power and yet

are almost totally unaccountable. Corder’s favourite example is the World Bank’s annual report which rates

the ease of doing business in each country in the world. This publication is highly influential amongst investors.

In 2007 it said that South Africa’s labour market was overregulated, which harmed our economy. Professor

Paul Benjamin, a labour lawyer in the Faculty, proved that this was a fundamentally false assertion based on

negligent empirical research. And yet there is nothing South Africa can do to hold to account the writers of the

report.

The details of Dyzenhaus’s article are not important. The point is simply that holding supranational power to

account is a challenge which administrative lawyers need to deal with.