Introduction to the Standards of Administrative Justice and Grounds of Review

Question 1

give an overview of the judicial oversight

Answer 1

In SA admin action courts are the primary mechanism for regulating admin action

Question 2

Elaborate on the oversight

Answer 2

• The way in which administrative law has developed, was premised on oversight of judicial the work of the administration
• As a discipline, at least in the common-law tradition, administrative law is thus closely tied to judicial enforcement.
• The rules of administrative law are consequently often formulated in a negative way, called grounds of review, which are essentially descriptions of when courts may interfere with administrative action.

Question 3

Pharmaceutical Association of SA & Another, paras 44-45 def of admin law in the context of the judicial review of admin action

Answer 3

Administrative law ‘is an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of
government’

Question 4

In which sections of the constitution is judicial review expressly mandated? And explain these sections

Answer 4

Judicial review is expressly mandated in sections 33 and 34 of the Constitution.

• In the current constitutional democratic dispensation, the courts are the primary
  mechanism of regulating administrative action

Question 5

What do sections 33 and 34 say?

Answer 5

Section 33: Just Administrative Action
Everyone has the right to administrative action that is lawful, reasonable, and procedurally fair.
If your rights have been adversely affected by administrative action, you have the right to be given written reasons.

Section 34: Limitation of Rights
The rights in the Bill of Rights may be limited only in terms of general law.
Limitations must be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.

Question 6

Explain how through judicial review in administrative law cases, the courts exercise judicial oversight of the work of the administration

Answer 6

This means that the courts scrutinize administrative action against the rules of administrative law

(they look at whether the admin action that was taken actually correlates with the admin action rules)

Question 7

State Section 33 of the Constitution

Answer 7

(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, and must—

(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2);
(c) promote an efficient administration.

Question 8

Give an explanation of s33 of the constitution

Answer 8

Section 33 sets out the standards of administrative law.

These standards are enforced by the courts

Ø Thus, judicial review of administrative action is tied to the enforcement of section 33 of the Constitution.
v The courts are the primary mechanism of regulating administrative
action, in the current democratic dispensation.

Question 9

provide the def for enforcement

Answer 9

The act of compelling observance of or compliance with a law, rule, or obligation

Question 10

Give the def for what the grounds of review are

Answer 10

It is the formulation of rules of admin action in a negative way

They ‘are essentially descriptions of when courts may interfere with administrative action’

Question 11

From where do the grounds of review arise?

Answer 11

The grounds of review ordinarily arise from PAJA since it
was enacted to give effect to section 33

As an example, alleged invalid administrative action may be
review on the grounds that it is unlawful, unreasonable and/or
procedurally unfair.
Effect of the Separation of P

Question 12

Explain the effect of the SoP specifically with regard to the court’s role.

Answer 12

The court’s role in administrative law is not to usurp (take over) the functions of the
administration.

• The reviewing court must ensure that the administration keeps within its mandate.
  when courts review admin action

Question 13

Bato Star case on PAJA’s connection with grounds of judicial review

Answer 13

In the Bato Star Fishing Constitutional Court also heldthat PAJA amounts to a codification of the grounds of review.
This means that an applicant must argue his or her case on review in terms of one or more of the grounds set out in section 6(2) of PAJA.

[judicial review of administrative action involves proving that the
administrator made one or more of the mistakes described in section 6(2) of PAJA.]

Question 14

what are the courts concerned with in judicial review of admin action?

Answer 14

In judicial review of administrative action, the courts are concerned with the manner
in which decisions are taken, i.e. the question of ‘how’ the decision was taken

Question 15

describe the steps taken by the courts in reviewing admin action

Answer 15

The reviewing court can only ask a limited number of questions;

it must essentially determine whether the administration has exercised its function in a manner prescribed by the relevant law

and in a manner consistent with the standards of
lawfulness, fairness and reasonableness.

Question 16

What are the boundaries in which the court should not cross when reviewing admin action and provide an exception

Answer 16

The reviewing court does not assess the appropriateness or correctness (i.e. the
merits or substance) of the administrator’s decision itself.

Exception:
§ If the ground upon which the administrative action is
challenged is either reasonableness or mistake of fact or
law.
* In this case there is not a clear line between judging
whether the decision was made in the correct manner or
whether the correct decision was taken.

Question 17

Appeal vs Review

Answer 17

it becomes challenging to distinguish between assessing whether the decision-making process was correct (a review function)
and evaluating whether the ultimate decision itself was correct (an appeal function)

Review function=The manner is the focus

Appeal function =the correctness(merits) is the focus)

Question 18

Give an explanation of ‘standard’ in the context of judicial review

Answer 18

A rule, requirement or principle established by authority [viz, Constitution, PAJA or
common law] for the measure of valid [administrative] conduct.

[lawfulness+ procedural fairness + reasonableness=valid admin conduct]

Question 19

Give a explanation of ‘ground’ in the context of judicial review

Answer 19

The legal basis for the court’s finding that the administrative conduct is invalid, i.e. the
court will use unlawfulness, procedural unfairness or unreasonableness as a ground or
basis for declaring the conduct invalid.

[unlawfulness and/or procedurally unfairness and/or unreasonableness=invalid admin action]

Question 20

Overall diff between standard and grounds of review in determining validity

Answer 20

§ Valid administrative conduct must meet ALL the requirements.
§ Invalid administrative conduct only has to fail to meet ONE
of the requirements.

Question 21

Describe the avenues/ pathways to review that should apply in relation to the particular conduct

Answer 21

1. cases where the administrative law
   might apply
2. type of conduct should
   determine the avenue/pathway to review (is it public or private)
3. the conduct is examined against
   the relevant standards

Question 22

Desribe the process taken when considering the 2nd requirement for the avenues/ pathways to review that should apply in relation to the particular conduct

Answer 22

1. Conduct
2. Is it public or private?
3. If PUBLIC CONDUCT

3.1 Is it admin action or non-admin action
3. 1.1 If it is admin action then PAJA grounds of review apply
3..1.2 If its non-admin action then legality grounds of review apply

4. If Its PRIVATE conduct
   4.1 Common law grounds of review apply if the power mimics public power, e.g. private entity exercises
   coercive power over individual in
   non-employment contexts

Question 23

Explain how Hoexter has termed the ‘different pathways to administrative-law review’ identifying five such pathways

Answer 23

1.Review under PAJA

2.Review in terms of special statutory provisions other than PAJA where the action qualifies as
administrative action as defined, but for policy reasons are reviewed along a separate avenue
from PAJA.

3.Review in terms of the constitutional principle of legality without reliance on PAJA or section 33 of
the Constitution where the action is public, but not administrative action as defined.

4.Review directly in terms of section 33 of the Constitution

5.Review in terms of the common law without reliance on PAJA or section 33 of the Constitution in cases of private actions that do not qualify as administrative action as defined, but that were subjected to administrative-law principles at common law.

Importantly, this does not include cases where private bodies
exercises public functions, which would be subject to review under PAJA

Question 24

WHAT ARE THE STANDARDS OF JUST ADMIN ACTION/ADMIN JUSTICE AND WHERE CAN THEY BE FOUND?

Answer 24

Section 33 of the Constitution sets out the standards of ‘just’ administrative action or
‘administrative justice’.

• The ordinary legal meaning of the term ‘just’ is lawful, fair, impartial and/or
  reasonable.
• ‘Just’ in section 33 of the Constitution means ‘lawful, reasonable and procedurally
  fair’

Question 25

list and explain the section 33 constitutional standards of ‘just’ administrative action

Answer 25

(i) LAWFUL
conduct that conforms to, or aligns, with the rule of law;

(ii) PROCEDURALLY FAIR conduct by an administrator that follows a fair process and is impartial/unbiased;

(iii) REASONABLENESS
an administrator must be able to account for/ justify theirdecision as being:
* rational (always),
* effective (most of the time),
* proportional(some of the time)

Question 26

Explain the relation between admin action and the reasons given for it

Answer 26

Section 33(2) of the Constitution states that everyone whose rights have been
adversely affected by administrative action has the right to be given written
reasons.’
* Thus, section 33(2) requires that reasons for administrative action be given upon the
request of persons adversely affected by the administrative action.

Question 27

Whats the effect of PAJA being enacted to give effect to section 33 of the Constitution?

Answer 27

the cause of action (ground of review) for judicial review of administrative action arises from PAJA on the authority of the Constitution.

Therefore, where a person alleges that conduct that satisfies the definition of ‘administrative action’
in section 1 of PAJA is inconsistent with the standards of just administrative action (i.e.
lawfulness, procedural fairness and reasonableness), such conduct (i.e. administrative action) may be judicially reviewed/scrutinised on the grounds stipulated in section 6(2)
of PAJA.

Question 28

Describe the structure of grounds of admin action ito s6(2) of PAJA?

Answer 28

The list of grounds of review in section 6(2) of PAJA do not follow a logical structure,
such as aligning the particular grounds of review with each of the three main pillars
of administrative justice in section 33(1) of the Constitution, namely lawfulness,
reasonableness and procedural fairness.

• Section 6(2) of PAJA sets out a ‘jumble of grounds’, addressing particular aspects of
  lawfulness, reasonableness and procedural fairness, with some overlap between
  them

Question 29

What are the grounds of review ito principle of legality?

Answer 29

1. Unlawfulness
2. Sometimes procedurally unfairness
3. Irrationality