Constitutional Pre-Requisites

Question 0

What did Chaskalson P state about the importance of the Constitution in Admin law?

Answer 0

The metamorphosis from a parliamentary sovereignty to a constitutional dispensation has profoundly impacted upon administrative and public law as stated by Chaskalson P in the Pharmaceutical case, namely that:

[the courts] no longer have to claim space and push boundaries to find means of controlling public power. The control is vested in them under the Constitution, which defines the role of the courts, their powers in relation to other arms of government and the constraints subject to which public power has to be exercised. [own emphasis]

Question 1

What is the significance of the Constitution in Admin law?

Answer 1

The Constitution 1996 (the Constitution) is the ultimate source of law in general and the primordial source of administrative power in particular. This is underscored by s2 and s1(c) respectively of the Constitution.

Question 2

Why was PAJA enacted?

Answer 2

PAJA was enacted in order to give effect to the provisions of the right that everyone has to administrative action that is lawful, reasonable and procedurally fair and to be given written reasons in respect of rights that have been adversely affected by administrative action.

Question 3

What do we understand by the terms ‘giving effect to’ as stated in PAJA?

Answer 3

Hoexter argues that it is clear that PAJA does neither replace nor amend s33, but that PAJA is the primary of default ‘gateway’ to judicial review. More significantly, in Bato Star, O’Regan J stated that:

The provisions of s6 [of PAJA] divulge a clear purpose to codify the grounds of judicial review of administrative action as defined in PAJA. The cause of action for the judicial review of administrative action now ordinarily arises from PAJA, and not from the common law as in the past.

Question 4

What does it mean that PAJA is the default mechanism for a cause of action of judicial review?

Answer 4

Given that PAJA is the default mechanism for a cause of action of judicial review, the rule of thumb is that a litigant relies on the legislation ‘giving effect to’ the right, before having recourse directly to the Constitution itself. In S v Mhlungu, Kentridge AJ stated at par [25] that:

[…] where it is possible to decide any case, civil or criminal, without reaching a constitutional issue that is the course that should be followed.

Question 5

What was emphasized in SANDU with regards to empowering legislation?

Answer 5

The principle set out in Mhlungu re-echoes what was stated in SANDU v Minister of Defence, namely that:

[…] where legislation has been enacted to give effect to a constitutional right, a litigant is not entitled to bypass that legislation and to rely directly on the constitutional right.

Question 6

When would a person be able to bypass empowering legislation giving effect to a Constitutional right?

Answer 6

Exceptions may and do exist where a litigant is required to bypass the legislation, but this would only be permitted if he or she could successfully argue that the legislation fails to ‘give effect to’ the constitutional right, alternatively rely directly on the constitutional provision by contending that it is unjustifiably limited.

Question 7

What is stated in section 6 of PAJA?

Answer 7

The grounds upon which an applicant whose cause of action is a judicial review of administrative action are set out in s6 of PAJA. Before examining the details of such grounds, it is noteworthy to keep in mind that our common law always provided our courts with judicial grounds of review.

Question 8

What common law grounds were recognised during parliamentary sovereignty?

Answer 8

Consider the principles of audi alteram partem, ultra vires, nemo iudex in sua causa or even the recognition of the right to a legitimate expectation (challenging validity of the decision of a public body or the exercise of public power on the grounds of natural justice).

Such principles under our former parliamentary sovereignty were judicially recognised rules of evolving from natural justice, which, if contravened, entitled the victim to claim review of the exercise of public power or function. The extent to which our courts were able to claim sufficient space against the challenges imposed by ouster or privative legislative clauses did not abolish the aforesaid principles, it merely limited the full extent of their usefulness and reliability.

Question 9

How has s6 of PAJA affected the common law grounds of judicial review?

Answer 9

It is clear that s6 of PAJA has codified the common law ground for judicial review.

In this regard, the same observation was made by O’Regan J in Bato Star Fishing. Such codification is also consistent with the manner in which the common law rights have been subsumed as referred to in the Pharmaceutical case.

With the constitutionalisation of the right to just administrative action in terms of s33, we are now, under a constitutional dispensation, presented with an administrative law system that can be said to be constitutionalised and codified in terms of the rights and duties arising from judicial review.

Question 10

How has the constitutional recognition of judicial review in terms of s33 affected the development of the law relating to judicial review?

Answer 10

Codification of common law principles on terms of PAJA does not mean a stagnation of any further development and jurisprudential growth of common law principles. In point of fact, the constitutional right to administrative action that is lawful, reasonable and procedurally fair will be informed through the development of the common law by means of the provisions of ss 8(3)(a), 39(2) and 173 of the Constitution and the ‘transformative constitutionalism’ as espoused by Klare.

Question 11

In terms of administrative law terms, what would constitute lawfulness?

Answer 11

Lawfulness is a material term of the definition of the right to just administrative action. However, in terms of administrative law terms, what would constitute lawfulness? Hoexter asserts that it simply means that:

…administrative actions and decisions must be duly authorised by law and that any statutory requirements or preconditions that attach to the exercise of power must be complied with.

Question 12

What is the problem that arises when trying to define legality in administrative law?

Answer 12

Lawfulness is and must be interpreted and be understood to coincide with the principle of legality which is an aspect of the rule of law, a founding imperative value of our Constitutionand what has been referred to as the ‘mainspring’ of administrative law.

Hoexter correctly argues that so important is the principle of legality that it actually ‘mirrors’ the image of administrative law whereby administrative law is referred to ‘under another name’.

Put differently, it may even be argued that the principle of legality serves as a guideline for the judicial review powers of our courts as captured by the following statement by Reeves:

On what basis is state power justifiably used to regulate the affairs of those falling within its jurisdiction? The judge’s rightful concern, then, is with legitimacy.

Question 13

Given that the principle of legality is then necessarily implied into the concept of unlawfulness does this not give a litigant free-range to engage the broad principle of unlawfulness as set out in s33 of the Constitution and buttress one’s argument with the principle of legality.

Answer 13

As previously indicated, recourse must, ordinarily, first be had to the detailed legislative provisions available, namely PAJA or the LRA. It can also be said that the principle of legality is informed by the contents contained or listed in s6 of PAJA. However, given that it is a part of the rule of law, which is the source of our constitutional dispensation it is natural to come to expect the principle of legality to be more extensively accommodating of concepts, values and issues not confined merely to a codification in terms of s6 of PAJA.

Question 14

What is the significance then of the principle of legality in relation to PAJA?

Answer 14

In this regard, legality is referred to as the principle guiding and governing the usage of all public power. It extends beyond the mere border of administrative law into realms where “the exercise of [all] public power is only legitimate where it is lawful” as was referred to in the Fedsure case.

In SARFU, the incumbent of the public power, namely the president, was required to act in good faith and not misconstrue his powers.

In the Pharmaceutical case, powers that were nearly legislative in nature were required to be exercised in a rational, non-arbitrary and non-capricious manner.

The principle of legality has been further developed to include in the notion of rationality the concept of procedural fairness as set out in the matter of Albutt v Centre for the study of Violence and Reconciliation.

Question 15

How does the principle of legality help the courts in terms of judicial review?

Answer 15

The principle of legality is a tool the courts can engage, where an act is not administrative for purposes of PAJA or s33, to still lay claim to jurisdiction in instances where there is an exercise of public power thereby broadening the principle of the rule of law enshrined in s 1(c) of the Constitution and to which our courts are duty bound to give proper and purposive effect.

The principle of legality is thus one which extends rather than limits the review powers of our courts, however, still upholding the doctrine of trias politika since it “…allows the courts to ‘defer to the government at the margins without relinquishing its supervisory role [see s 165 of the Constitution] completely’.

Question 16

What does the provision in PAJA of the requirement of authorization refer to?

Answer 16

REQUIREMENT OF AUTHORITY

The exercise or performance of an act or function without same having been authorised by law renders such act or function unlawful. In Fedsure, the principle was asserted that:

[…] central to the conception of our constitutional order [is the] fact 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.

Judicial review under PAJA can take place in terms of s2(a)(i) or (ii) where there is an absence of ‘authorisation’. In the case of delegated legislation, the general rule is that delegated power must be properly delegated and then exercised by the administrator to whom such power has been delegated. The same holds true for sub-delegation.

Delegation of authority is recognised in terms of s238 of the Constitution. On a more practical level, they provide the practitioner and citizen seeking protection against the unlawful exercise of power with greater flexibility and maneuverability in the support of any case they may have to bring against a public or private institution exercising excessive power.

Question 17

What does the provision of judicial review in terms of an error of law in PAJA refer to?

Answer 17

ERROR OF LAW

Section 6(2)(d) of PAJA permits of judicial review in situations where a wrong or mistaken interpretation of certain legislation or a legislative provision may have occurred. Since the court is dealing with a review and not an appeal, the material question is not whether the court of review agrees or disagrees with the conclusion, but rather at the manner in which the administrator arrived at the conclusion. The case of Sidumo bares tribute to just how anxious our courts can become when making a concerted effort to delineate and keep separate the review and appeal procedure.

Sections 6 (2) (a)-(d) provide the grounds of upon which a court may review the ‘ambit of authority’ of an administrator. Clearly, an administrator, in dismissing an application for a fire-arm license, for example, without affording the applicant a chance to state his or her case, would fall foul of s6(2)(c) for want of the matter not being procedurally fair and hence, such administrator would be exceeding the ‘ambit of authority’.

Question 18

What is an abuse of discretion in terms of PAJA?

Answer 18

ABUSE OF DISCRETION

Section 6(2)(e) and (f) have to do with the exercise of discretionary powers of an administrator. With regard to issues such as: bad faith, arbitrary or capriciousness, where the action contravenes a law or is not rationally connected to the purpose for which it was taken or the reasons given by the administrator, the court will review the facts and circumstances of each case to decide whether the conduct or omission on the part of the administrator is such as to contravene one of the aforesaid provisions of s6 (e) –(f). It is here where notions of lawfulness (which by necessary implication include and give rise to the principle of legality) and reasonableness come into play. Significantly, in dealing so desperately with the distinction between keeping a review process divorced from an appeal process, it will be recalled how the court in Sidumo took jurisprudential leaps in altering our former law pertaining to the review of CCMA awards. Carephone v Marcus (decided before the coming into operation of PAJA on 30 November 2000) had established and settled the law pertaining to the review of a commissioner’s award to be whether or not there was a rational connection between the information before the commissioner and the material properly before him or her. In Sidumo, however, the court rejected the test as being one in which the decision should be justifiable in relation to the reasons given for it and adopted the test of asking whether:

[…] the decision reached by the commissioner [is] one that a reasonable decision-maker could not reach?

Question 19

What does the provision of reasonableness in PAJA refer to?

Answer 19

REASONABLENESS

It has been correctly stated that there is no single meaning that can be attributed to reasonableness either in the administrative law or public law arena. Significantly, however, is the fact that the term appears as an express and essential ingredient to just administrative action.

In Bato Star Fishing, O ‘Regan J seems to draw some form of nexus between reasonableness and rationality and proceeds to state the obvious, namely that reasonableness would depend on the facts and circumstances of each case. More importantly, O’Regan J points out factors relevant in considering whether a decision is reasonable or not, as follows:

• 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 any competing interests involved; and
• The impact of the decision on the lives and well-being of those ​affected.

Question 20

What does the provision of rationality in PAJA refer to?

Answer 20

RATIONALITY

In this sense, the decision must be supported by the evidence and information before the administrator. There must, in other words, exist a rational connection between the material and the outcome for the decision to be justified. An unjustified decision cannot be said to be rational and an irrational decision cannot be said to be justified. This rational objective based approach is what was accepted by the court in the Carephone case and overflowed into PAJA accepting rationality as a ground upon which a decision may be reviewed in terms of s6(2)(f)(ii).

However, the caution articulated by O’Regan J in Bato Star Fishing that the review functions of the court, with reference to reasonableness and rationality, have a substantive and procedural ‘ingredient’ and the need to keep review and appeal procedures apart and distinguishable ultimately led to the test on review, at least in so far as s145 of the LRA is concerned, being changed in terms of the Sidumo case.

Question 21

What is the significance of the provision of proportionality in PAJA?

Answer 21

PROPORTIONALITY

Hoexter is of the view that reasonableness does not only concern itself with rationality. The purpose of proportionality is:

to avoid an imbalance between the adverse and beneficial effects … of an action and to encourage the administrator to consider both the need for action and the possible use of less drastic or oppressive means to accomplish the desired end.

Sachs J in Minister of Health v New Clicks South Africa stated that proportionality will always serve as an essential ingredient of reasonableness. Proportionality is suggestive of a balance between two things.

Although not expressly provided for, Hoexter points out that the drafters of PAJA decided to include proportionality under s6 in terms of the provisions of s6(2)(h) which speaks only of unreasonableness of the exercise of power or performance of a function. However, how unreasonable must the exercise of such power be for it to be regarded unreasonable, and by implication, not proportionate? Hoexter argues that for something to be unreasonable does not warrant that it constitute ‘gross misconduct‘. She contends that the ordinary grammatical interpretation and meaning should be invoked, namely, that having regard to all the circumstances, ask not whether the decision is perfect or correct, but whether it has been ‘exercised’ within a realm of ‘legitimate diversity’.

Hoexter states that to require more than mere reasonableness would raise the standard unrealistically to require correct or perfect decisions and serve as an invitation for courts to substitute their own views for that of the administrator. An interpretation of reasonableness in the context of socio-economic rights is appropriately interpreted and given effect to by the Constitutional Court in Government of the RSA v Grootboom. The right of access to adequate housing was interpreted by the Constitutional Court as meaning nothing more than ‘reasonable legislative and other measures’ that were to be taken for the right to be progressively realised.

Question 22

What is the importance of reasonableness and respect for separation of powers?

Answer 22

REASONABLESS AND RESPECT FOR THE SEPERATION OF POWERS

In Bato Star Fishing, O’Regan J took great trouble at making clear the regard that must be had to the principle of trias politika. Whilst our courts are tasked to uphold the rule of law and exercise judicial powers of review in terms of PAJA and the LRA, to what extent, and how far, does the court venture before it can be castigated for unlawfully and unconstitutionally interfering in the affairs of either the Legislature or Executive arms of government? O’Regan J correctly points out that judicial deference with regard to the power of a court of review, should not be interpreted to mean ‘judicial courtesy or etiquette’. Rather it is something that refers to the ‘fundamental constitutional principle of the separation of powers itself’. This results in the courts de facto having to decide on the limits to which they may venture into their ‘review’ of a decision. O’Regan J, sets out a comment from Lord Hofmann which states that:

“In a society based upon the rule of law and separation of powers, it is necessary to decide which branch of government has in any particular instance the decision making power and what limits of that power are. That is a question of law and must therefore be decided by the Courts.

This means that the Courts themselves often have to decide the limits of their own decision making power. That is inevitable. […] The Courts are the independent branch of the government and the Legislature and Executive are, directly and indirectly respectively, the elected branches of government.”

The importance of respecting trias politika is recognisable at once in the Pharmaceutical case where Chaskalson P defined administrative law as “…an incident of the separation of powers under which courts regulate and control the exercise of public power by the other branches of government.”

In the matter of Glenister v President, RSA, Langa CJ points out that whilst our constitution makes no express reference to the separation of powers, it is nevertheless: “…by now axiomatic that the doctrine of separation of powers is part of our constitutional design.” Moreover, Langa CJ stated the following:

In our constitutional democracy, the courts are the ultimate guardians of the Constitution. They not only have the right to intervene in order to prevent the violation of the Constitution, they also have the duty to do so. It is in the performance of this role that courts are more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention. It is a necessary component of the doctrine of separation of powers that courts have a constitutional obligation to ensure that the exercise of power by other branches of government occurs within constitutional bounds.

Whilst ss165-172 of the Constitution clearly and expressly set out the powers of the courts and administration of justice, it is clear from the aforesaid that the doctrine of separation of powers operates as a relative and not absolute concept in a constitutional democracy if the courts are to serve as the upper guardians of the rule of law. Whilst the courts are vested with such powers, such powers are not absolute as is evidenced by s8(1) of the Bill of Rights which “Applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”. The State, on the other hand, as defined in s 239 to include Parliament and the Executive also does not have absolute power as is evidenced by s7(1) of the Bill of Rights which provides that: “The state must respect, protect, promote and fulfil the rights in the Bill of Rights”. What does remain absolute and supreme is the Constitution and the rule of law in terms of s1(c).

Question 23

What can be concluded from constitutional pre requisites giving rise to the right to just administrative action?

Answer 23

The constitutional prerequisites giving rise to the right to just administrative action ultimately have their source in the common law rules of natural justice such as the right to state your case or not being able to grant to someone more power than you have yourself. However, with the evolution of our administrative law system that is based on constitutional imperatives the aforesaid common law rights have been subsumed by the constitution and also codified by PAJA. Development of the common law, in line with the principles of legality that flow from the rule of law, will give impetus to the further development and growth of our common law where necessary. In realising one’s rights to administrative action, practical regard must at all times be had to the mechanisms involved to protect a right that has been adversely affected, either directly or indirectly, by the exercise of public power or function. In other words, utilisation of remedies provided for in terms of PAJA is required before relying for relief directly upon s33 of the Constitution save in exceptional circumstances.