REASONABLENESS Flashcards

1
Q

Describe the overview of reasonableness as a ground of review under common law era

A

o Strict distinction between appeal and review was maintained
o Gross (or symptomatic) reasonableness
o Different tests for reasonableness applied in respect of legislative action, administrative action, and judicial decision and the so-called pure administrative action

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2
Q

Conceptual Understanding of Reasonableness

A

v There has been historical resistance to an inquiry into reasonableness of administrative action because of how deep reasonableness can go into merits of a decision (distinguishing review from appeal)

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3
Q

Describe concept of reasonableness

A

v Reasonableness is a variable standard of review that operates in degrees of scrutiny
v It’s context-specific, considering facts & circumstances of a particular case

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4
Q

what was the test that was applied for reasonableness under common law iro pure admin action?

A

Only action that was “grossly unreasonable” could be said to be unreasonable
(i.e. so unreasonable that something else could be inferred from it, like bad faith/ulterior motive)

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5
Q

what was the test that was applied for reasonableness under common law iro legislative action?

A

only action that was:
* manifestly unjust
* disclosed bad faith
* involved oppression and interference
* not contemplated by the legislature
– could be said to be unreasonable

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6
Q

Describe the overview of reasonableness as a ground of review under the interim and the final constitution

A

S 24(d) In. Con:
o S 24(d) of Interim Constitution:
“every person shall have the right to administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected”

Case:
o NEW CLICKS: The Constitutional Court said that at the very least, this means that decisions of administrators must be rational.

S 33: o S 33 of the 1996 Constitution merely says administrative action must be reasonable, without imposing any conditions

Resultant Uncertainty: o For a while there was some uncertainty on whether the common law limitations on reasonableness survived (i.e. whether gross unreasonableness was still the test)

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7
Q

Describe the overview of reasonableness as a ground of review under PAJA [s 6(2)(f)(ii)]
{Rational Connection}

A

Admin Action is reviewable if no rational connection between the decision of the administrator and:
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator

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8
Q

Describe the overview of reasonableness as a ground of review under PAJA [s 6(2)(h)]

A

Admin Action is reviewable if:
> “the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the admin action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function

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9
Q

2 elements of
reasonableness

A

> Rationality’ contemplated in S 6(2)(f)(ii) of PAJA
‘Reasonableness’ which is something more than mere rationality, contemplated in S 6(2)(h) of PAJA

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10
Q

Case law on rationality

A

CAREPHONE V MARCUS 1998 (LAC):

o RATIONALITY → ‘[there must be] a rational objective basis justifying the connection between material properly available to that administrator and the conclusion administrator eventually arrived at’

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11
Q

BATO STAR 2004 (CC) on s6(2)(h)
Legal interpretation

A

O’Regan J said the following about S 6(2)(h):
Literal Interpretation:
Justice O’Regan acknowledged that if we took the language of section 6(2)(h) literally, it might create an overly permissive standard.
Such a standard could lead to decisions rarely being found unreasonable.
However, she emphasized that this literal interpretation is not the proper constitutional meaning to attach to the subsection.

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12
Q

Bato star case O’Reagan on the consistency with the constitution

A

Consistent with the Constitution:
Section 33 of the Constitution requires administrative action to be “reasonable.”
Therefore, section 6(2)(h) should be understood in light of this constitutional requirement.
The goal is to strike a balance between respecting administrative decisions and ensuring they align with reasonableness.

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13
Q

Bato star case O’Reagan’s simple test

A

The Simple Test:
Justice O’Regan proposed a straightforward test:

An administrative decision will be reviewable if a reasonable decision-maker could not have reached the same decision.

In other words, the focus is on whether the decision is within the bounds of reasonableness.

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14
Q

what does reasonable mean?

A

o The courts have said that it is a variable standard.
o Now accepted that its meaning includes rationality but can mean more than rationality.
o It is a variable standard of review.
o It can allow for limited scrutiny by courts, and it can allow more expanded scrutiny by courts.
o It will always depend on the facts of a particular case, whether limited or greater scrutiny is warranted.
o This extended scrutiny has been said to mean the standard of PROPORTIONALITY.

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15
Q

Factors for determining a decision’s
reasonableness: (acc to Bato Star)

A

o “What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case.
o Factors relevant to determining whether a decision is reasonable or not will include:
▪ 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.”

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16
Q

WHATS THE OVERVIEW OF PROPORTIONALITY AS AN ELEMENT OF REASONABLENESS [s 6(2)(h)]

A

PROPORTIONALITY: Rationality is not all there is to reasonableness.

17
Q

Explain proportionality according to Hoexter

A

The notion that one ought not to use a sledgehammer to crack a nut.

18
Q

what’s the purpose of proportionality

A

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

19
Q

3 elements of proportionality

A

(a) balance
(b) necessity
(c) suitability

20
Q

describe proportionality

A

A proportional admin decision (thus reasonable) will be one that is suitable, balanced and necessary – under the circumstances → Proportionality guards against oppressive admin decisions

21
Q

Implicit
proportionality

A

o PROPORTIONALITY implicit in 2 of the BATO STAR FACTORS:

▪ The nature of competing interests AND
▪ the impact of the decision on the lives and well- being of those affected

> Proportionality is about balancing of varying interests and enquiring into the suitability of the decision under the circumstances

22
Q

Explain VARIABILITY OF THE REASONABLESS STANDARD ito perfection

A

Reasonableness does not require perfection

> Court not required to agree with admin decision or find it the correct one — BUT must be satisfied decision falls within range of “legitimate diversity”

(legitimate diversity being the space within which various reasonable choices may be made)

23
Q

EXPLAIN THE VARIABILITY OF THE REASONABLENESS STANDARD ITO LESS OR MORE

A

o To require less than reasonableness would be to allow capricious decision making

o To require more than reasonableness would be to allow the courts to substitute their own views for those of the administrator

24
Q

WHAT IS THE VARIABILITY OF THE REASONABLENESS STANDARD INSPIRED BY?
[Inspiration of Approach]

A

o On the one hand: The need to protect society and to make admin law effective in holding administrators accountable in order to achieve admin justice, and

o On the other hand: The need to respect the principle of Separation of Powers

25
Q

Give the meaning of reasonableness at Minimum vs maximum standards

A

REASONABLENESS is a continuum beginning with RATIONALTY and ending with PROPORTIONALITY.
▪ At minimum: Reasonableness means rationality.
▪ At maximum: Reasonableness means proportionality.

26
Q

what’s the reasonable standard of irrationality?

A

An irrational decision will always be unreasonable (or proportional).
However, a rational decision may still be unreasonable

27
Q

Ian Currie analogy

A

§ Trip to Cape Town via Bloemfontein (Rational but
Unreasonable)
§ Trip to Cape town Via Gaborone & Windhoek (Irrational
and Unreasonable)

28
Q

Explain Judicial
deference when looking at reasonableness and respect as a separation of power consideration

A

JUDICIAL DEFERENCE =
Judges must appreciate and respect that the making of admin decisions is the terrain of ADMINISTRATORS belonging to the other arms of government.
▪ Also that ADMINISTRATORS are the ones who hold the expertise to make such decisions.
▪ Judges must be sensitive of their own constraints in reviewing administrative decisions.
▪ To avoid entry into the terrain of an APPEALS
▪ To minimise or avoid reconsideration of merits (i.e. not about correctness of decision but whether it is reasonable)
– although it must be acknowledged that reasonableness will often touch merits
> HOWEVER, this does not mean that judges must avoid holding administrators ACCOUNTABLE to the principles of administrative justice

29
Q

What’s the important thing to consider when considering factors of when courts may or may not interfere?

A

Reasonableness should be
determined with reference to the
specific circumstances of each case

30
Q

S 6(2)(h) on reasonableness and vagueness

A

o The idea is that a reasonable decision-maker would not make a decision is that is VAGUE.
o This requires that:
▪ Admin decision must be sufficiently clear and accessible.
* There must be reasonable certainty as to what the decision and boundaries thereof – so that the affected people know what the decision is.
▪ Administrative decisions must be consistent and not be contradictory (particularly subordinate legislation, such as regulations, etc.)