Ch. 7 - Reasonableness

Question 1

What is one of the cornerstone distinctions between appeal and review?

Answer 1

That judges are not supposed to decide whether admin decisions are correct or not.

• They are not to decide on the merits of admin action.
• The principal reason being the separation of powers

Question 2

What is the practical reason that judges do not decide on the merits of admin action?

Answer 2

They are not QUALIFIED to make admin decisions.

Question 3

Why is reasonableness controversial?

Answer 3

1. Concerns that this would entail judges scrutinising the merits of those decisions
2. It does not operate in an absolute fashion (some other grounds of review are absolute)

Question 4

What are the 3 categories of cases that fall under unreasonabless? (include case)

Answer 4

• Quoted in Ehrlich case
  1. Where there has been an extreme defect in the DECISION-MAKING PROCESS (decisions in bad faith; decisions based on considerations wrongly taken into account or ignore; strictly ‘irrational’ decisions)
  2. Decisions taken in violation of comm law principles governing the exercise of official power (equality and legal certainty are important)
  3. Oppressive decisions - which are unnecessarily onerous impact on affected persons

Question 5

What is the ultimate concept of reasonableness?

Answer 5

The idea that a decision will be unreasonable if it is a decision that a reasonable decision-maker would not reach.

Question 6

Name the 4 grounds related to reasonableness

Answer 6

1. Symptomatic unreasonableness: Manifests itself due to the presence of another flaw in the decision, usually an abuse of discretion.
2. Rationality
3. Proportionality: Regarded as part of reasonableness iro only certain types of admin action under the common law, this is not provided for explicitly in PAJA
4. Vagueness: Also not included in PAJA.

Question 7

In which case was the test for ‘purely administrative’ actions set out?

Answer 7

Union Steel Corp. case.

Question 8

What is the Wednesbury test?

Answer 8

A decision so unreasonable that no reasonable authority could ever come to it.

Question 9

Which case do we follow regarding reasonableness? What did the court state?

Answer 9

Bato Star Fishing

• “S6(2)(h) should then be understood to require a simple test, namely, than an administrative decision will be reviewable if it is one that a reasonable decision-maker could not reach”.
• The court provided some pointers, indicating that the determination of reasonableness will depend on the circumstances of each case:
  a. The nature of the decision
  b. The identity and expertise of the decision-maker
  c. The range of factors relevant to the decision
  d. The reasons given for the decision
  e. The nature of the competing interests involved, and
  f. The impact of the decision on the lives and well-being of those affected

Question 10

In which case was the test for Rationality confirmed?

Answer 10

Trinrity v ICASA

• The justification for the connection must be OBJECTIVELY rational
• Thus, the reasonable observer must regard the connection as rational (not just the decision-maker)

Question 11

Ito rationality, what does PAJA say?

Answer 11

PAJA provides that admin action is reviewable if:

• the action is not rationally connected to:
  a. the purpose for which it was taken;
  b. the purpose of the empowering provision;
  c. the information before the administrator; or
  d. the reasons given for it by the administrator.

Question 12

Can a decision be rational and yet unreasonable?

Answer 12

Yes-

1. On the basis of proportionality
2. On the basis of infringing the right to equality

Question 13

What case is applicable to Proportionality and what did the court say about it?

Answer 13

The New Clicks case

- Proportionality is inherent in the BoR and will always be a significant element of reasonableness.

Question 14

In which case did the court confirm that proportionality can cause review ito reasonability (even though it is not included in PAJA)?

Answer 14

Bato Star Fishing

Question 15

What factors did the CC set out in the Bato Star Fishing iro proportionality?

Answer 15

1. The nature of the competing interests involved: If the court must consider the competing interests involved, it will invariably take into account the extent to which the decision impacts on the interests of affected individuals;
2. The impact of the decision on the lives and well-being of those affected.

Question 16

Which other cases are applicable to proportionality?

Answer 16

• Schoonbee

- Ehrlich

Question 17

Is there a test for proportionality?

Answer 17

Our courts have not spelt one out yet.

- The closest is the Roman case, which required suitability, necessity and proportionality.

Question 18

What is De Ville’s suggested test for proportionality?

Answer 18

1. Was the measure in question suitable or effective to achieve the desired aim?
2. Was the measure necessary in the sense that no lesser form of interference with the rights of a person was possible in order to achieve the desired aim?
3. Does the measure not place an excessive burden on the individual which is disproportionate irt the public interest at stake?

Question 19

With which case does De Villes suggestion align?

Answer 19

The Roman case

Question 20

Even though vagueness is not mentioned in PAJA, in which case was vagueness confirmed to form part of the rule of law?

Answer 20

New Clicks

Question 21

In which case as the link between vagueness and procedural fairness raised?

Answer 21

Allpay Consolidated

- “Vagueness can render an … admin action procedurally unfair”

Question 22

What are the factors set out in Bato Star Fishing relevant in determining whether a decision is reasonable? (6)

Answer 22

1. The nature of the decision
2. The identity and expertise of the decision-maker
3. The range of factors relevant to the decision
4. The reasons given for the decision
5. The nature of the competing interests involved; and
6. The impact of the decision on the lives and well-being of those affected

Question 23

Which case allows the court to consider the merits ito reasonableness?

Answer 23

• Carephone v Marcus NO
• Courts may consider reasonableness as long as the judge is aware the he enters the merits not in order to substitute his opinion on the correctness thereof, bu to determine whether the outcome is rationally justifiable.