Review Pathways

Question 1

According to pharmaceutical, the court held that common law and s33 are two separate systems of law

Answer 1

F
Court held that there are not 2 systems of law. There is one system, shaped by the Constitution.

Question 2

According to the Principle of subsidiarity, you go to PAJA first.

Answer 2

True
- PAJA is the default route to judicial review when AA. (Bato star)
POS - if legislation gives effect to the constitution, rely on that.

Question 3

The role of the Common law is interpretative, informative and supplementary

Answer 3

True
- Pharmaceutical and bato star

Question 4

Whether conduct is AA must be determined by reference to S33

Answer 4

F - PAJA (Matou, Masuka)
PAJa gives content to the right to just AA. Therefore PAJA is the threshold.

Question 5

S33 is used when challenging legislation as inconsistent with S33

Answer 5

True
- Zondi: PAJA cannot be used to evaluate constitutional challenges.
- A const challenge must be evaluated under S33 of the Cont.

Question 6

Common law review must be used when there is Private power which is not AA

Answer 6

True

Question 6

There was a culture of authority in pre-constitution times

Answer 6

True
- Primacy of judicial review

Question 7

PAJA must be used even if there is a special statutory review

Answer 7

F
- Sidumo: Nothing in S33 precludes specialised leg regulations of AA.
- SSR or PAJA? SSR

Question 8

SARFU was the first time that the principle of legality was recognised as an NB part of the Rule of Law

Answer 8

F
- FEDSURE

Question 9

FEDSURE held that Public power must be within the confines of what has been lawfully conferred on it.

Answer 9

True
- PP only legitimate when lawful

Question 10

SARFU held that under the POL, people exercising PP must do so in good faith and must not misconstrue their powers.

Answer 10

True

Question 11

Albutt held that POL does not have to include procedural rationality.

Answer 11

False.
- Albutt and DA: Developed POL to include process/procedural rationality
- Process rationality: consult certain groups before the exercise pf am act.

Question 12

SARFU held that there is a duty on decision makers to provide reasons.

Answer 12

False
- Albutt and DA

Question 13

If an exercise of public power does not constitute Admin Action, there is no duty to provide reasons

Answer 13

False.
JSC: Even if there is no exercise of PP that is AA, still implied duty to provide reasons.
- Values of accountability and transparency = NB

Question 14

You can rely on POL freely

Answer 14

False
-Bato star: PAJA cannot be avoided.
- Matou: first determine whether exercise of PP is AA under PAJA

Question 15

Albutt deliberately avoided PAJA

Answer 15

True

Question 16

A separate claim may be relied on, based on the same conduct, even though the conduct amounted to AA under PAJA

Answer 16

True
- KZN joint liaison committee
- The court created a new public law remedy

Question 17

The identity of the person/entity is a criterion for determining the pathway to review.

Answer 17

True
- Gijima : S33 must protect humans against the state. The state cannot be both the beneficiary of a right and the bearer of obligations.

Question 18

When an organ of state is reviewing it’s own decisions, they must rely on S33 and PAJA

Answer 18

False
- Gijima
- POL applies