Review Powers Of The Court Flashcards
What does s24 of the Constitution state?
Section 34 of the Constitution, dealing with access to courts, provides that:
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
Significant elements of the definition are that:
- access to courts is not limited to certain individuals;
- no qualification is placed on the nature of the dispute, implying that the dispute may be of a private or public law nature;
- resolution of the dispute is encouraged by way of a legal interventionist approach, thereby discouraging people and persons from taking the law into their own hands to resolve disputes and giving effect to the principle of the rule of law as contained in s 1(c) of the Constitution;
- the nature of place for dispute resolution of any dispute may not only be a formal court in the traditional sense involving a judge or magistrate, but can take on the form of a tribunal or forum;
- irrespective of the make of the nature of the institute tasked with resolving the dispute, such resolution of dispute must take place in public (where justice can not only be done, but can also be seen to be done;
- the hearing can only be fair if presided over by someone who is impartial, thereby giving effect to the nemo in iudex sua causa principle; and
- the fact that everyone is accorded the constitutional right to have a dispute settled in a ‘hearing’ obviously gives effect to the audi alteram partem principle.
What important aspect must be kept in mind when referring to the review powers of the court?
INTRODUCTION
When referring to the review powers of the courts, it is important to keep in mind the subject matter that one requires the court to review.
Is it subject matter arising from an administrative act performed as manifested by a hearing, namely a hearing at the CCMA, or a hearing in a government department which hearing was not conducted in terms of a disciplinary code and procedure.
Alternatively, is the subject matter under review, conduct of an administrator. Perhaps the administrator at the department of Home Affairs failed to apply his mind to regulations pertaining to the issuance of passports. Baxter states that ‘[t]he function of review is to scrutinize the legality of the administrative action, not to secure a decision by a judge in place of the administrator’.
What significant elements can be taken from s34 of the Constitution.
Section 34 of the Constitution, dealing with access to courts, provides that:
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
Significant elements of the aforesaid definition are that:
- access to courts is not limited to certain individuals;
- no qualification is placed on the nature of the dispute, implying that the dispute may be of a private or public law nature;
- resolution of the dispute is encouraged by way of a legal interventionist approach, thereby discouraging people and persons from taking the law into their own hands to resolve disputes and giving effect to the principle of the rule of law as contained in s 1(c) of the constitution;
- the nature of place for dispute resolution of any dispute may not only be a formal court in the traditional sense involving a judge or magistrate, but can take on the form of a tribunal or forum;
- irrespective of the make of the nature of the institute tasked with resolving the dispute, such resolution of dispute must take place in public (where justice can not only be done, but can also be seen to be done;
- the hearing can only be fair if presided over by someone who is impartial, thereby giving effect to the nemo in iudex sua causa principle; and
- the fact that everyone is accorded the constitutional right to have a dispute settled in a ‘hearing’ obviously gives effect to the audi alteram partem principle.
What other provisions of the Constitution in reference to the courts review powers?
Section 38 of the Constitution, dealing with enforcement of rights, provides that:
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and an association acting in the interest of its member.
It is also necessary to keep in mind the provisions of s172 of the Constitution, which is headed ‘powers of courts in constitutional matters’.
What section of PAJA deals with judicial review?
PAJA
Section 6 of PAJA deals with judicial review of administrative action by means of setting out certain minimum pre-requisites for the judicial review of administrative action as detailed more specifically in s 6(2)(a)-(i).
Section 7 of PAJA sets out the procedure for judicial review of administrative action.
- In terms of time periods, it is important to note that s7(1) of PAJA requires any proceedings for the judicial review of administrative action to be instituted without reasonable delay and not later than 180 days after the date once internal remedies have been exhausted (s7 (1)(a)), alternatively, where no internal remedies exist, the date on which the applicant is informed of the administrative action or might reasonably been expected to have been aware thereof (s 7(1)(b)).
What possible remedies are available to a successful applicant in a review application of admin action?
The possible remedies available to a successful applicant in a review application of administrative action is set out in s 8 of PAJA, which provides that:
(1) The court or tribunal, in any proceedings for judicial review in terms of section 6 (1), may grant any order that is just and equitable, including orders-
(a) directing the administrator –
(i) to give reasons; or
(ii) to act in a manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular manner;
(c) setting aside the administrative action and –
(i) remitting the matter for reconsideration by the administrator, with or without directions; or
(ii) in exceptional cases-
(aa) substituting or varying the administrative action or correcting a defect resulting from the administrative action; or
(bb) directing the administrator or any other party to the proceedings to pay compensation;
(d) declaring the rights of the parties in respect of any matter to which the administrative action relates;
(e) granting ta temporary interdict or other temporary relief; or
(f) as to costs.
Where does the courts power of review stem from?
CONSTITUTIONALISATION OF REVIEW POWERS
Innes CJ in Johannesburg Consolidated Investment v JHB Town Council stated that the review power of the court was ‘a right inherent in the court’.
Since the constitutionalisation of administrative law it must be borne in mind that the default manner in which judicial review of administrative acts is brought is in terms of PAJA which was enacted to ‘give effect to’ the provisions of s33 of the Constitution.
In Bato Star Fishing it was confirmed that the power of judicial review no longer stems from the common law but more generally from the Constitution and specifically from PAJA. O’Regan stated that:
[T]he cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past.
Does PAJA deal only with constitutional cases?
Significantly, PAJA deals not only with cases falling within the ambit of constitutionalism in order to give effect to s33, but instances of the control of public power.
This is underscored by the Pharmaceutical case, which stated that not all cases involving the control of public power are necessarily constitutional cases.
PAJA applies only to the review of administrative action. It has no application in respect of any other matter or issue.
Judicial review is still available where no administrative action has taken place, in which review would be conducted on the basis of some other means of review provided by another statute, such as the Labour Relations Act 66 of 1995 (ss 145 and or 158).
Review may also be brought in terms of the constitutional principle of legality. Common law review would govern the exercise of private power, such as a private arbitration between parties.
What was stated in the Clicks case about the relationship between the Constitution and PAJA?
In Minister of Health v New Clicks SA, which had to do with whether certain regulations concerning health care and medicines were made in accordance with the requirements of the Constitution and the law, Chaskalson CJ stated that:
A litigant cannot seek to avoid the provisions of PAJA by going behind it, and seeking to rely on s 33 (1). It was clearly intended to be, and in substance is, a codification of these rights. It was required to cover the field and purports to do so.
Chaskalson CJ went further to re-iterate that what is or what is not an administrative action for purposes of PAJA will be determined by the definition in s 1 [of PAJA]. Once so determined, then s 4 comes into operation. What s 3 of PAJA requires is that the administrative action must be procedurally fair. In a concurring judgment Ngcobo J stated the following:
The role of the Courts is to police the exercise of that discretion [determination of dispensing fees by the Minister]. Where it is exercised in a manner that is inconsistent with PAJA, the Courts will, and must, intervene. [own emphasis]
In a concurring judgment, yet for different reasons, Sachs J contends that judicial review is osmotic in its outreach in that whether the administration is involved with a ‘narrow task of dealing with the rights of individuals or fulfilling the wider function of creating subordinate legislation, it must act according to the same broad democratic values and principles enshrined in the constitution’. It is therefore imperative that, according to Sachs J ‘…whether judicial review of delegated legislation is conducted through the lens of legality, as I believe it should be, or through the prism of s 33 and PAJA, as the Chief Justice holds, the consequences should at least roughly be the same.’ Sachs J expands on the principle of legality as follows:
In my view, the basis for judicial review of subordinate legislation lies in an expansive notion of legality derived from both express provisions and implied principles of the Constitution. It flows from the notion of constitutional legality, the foundational and organising principle that binds together the text of the Constitution in a unified and coherent whole. Legality in this sense draws its life-blood from multiple texts of the constitution and lies at the structural heart of our constitutional democracy.
What is the procedure that must be followed for reviews?
REVIEW PROCEDURES
Rule 53 of the Uniform Rules permits review applications to be launched for the review of decisions of inferior courts, tribunals, boards and officers ‘performing judicial, quasi-judicial or administrative functions’. This is brought by way of motion proceedings on application the aim of which is expedience. The notice of motion will call on the respondent to show cause why the decision (or proceedings) should not be reviewed and set aside or corrected and set aside.
Although no time period is specified in terms of when a review in terms of Rule 53 is to be brought, our law would require the application to be brought within a reasonable time. Applications for condonation for the late filing of review applications will need to be brought in circumstances where there has been an inordinate delay for the simple reason that our law is premised on the principle that a validation of something which is otherwise ‘invalid’ may arise since the ‘judicial discretion helps to ensure that finality is achieved in administrative matters. Finality is important not only because it may cause prejudice to the respondent but also because the public interest in certainty’, as indicated by Cleaver J in Yuen v Minister of Home Affairs.
What remedies are there for judicial reviews?
REMEDIES IN JUDICIAL REVIEW PROCEEDINGS
Review at common law gives the applicant the primary remedy of setting aside and correcting.
The same remedies appear in s8 of PAJA, together with orders to give reasons, an order prohibiting the administrator from acting in a certain manner or an order declaring the rights of the party.
What does setting aside of an admin action/decision entail?
SETTING ASIDE
Until set aside, an administrative action or decision remains valid and binding, irrespective of its illegality. Only a court of law may declare same invalid.
However, the effect of a decision will usually be suspended, save where the enabling legislation provides otherwise, once an appeal is lodged (See Max v Independent Democrats).
What does remitting an admin action to the administrator entail?
REMITTING THE MATTER TO THE ADMINISTRATOR
Section 8(1)(c)(i) of PAJA provides that the remedy of setting aside is coupled with ‘remitting the matter for consideration by the administrator, with or without directions’.
Hence, we see the courts’ reluctance to interfere with the functions and assume the discretion of other branches of government in terms of the doctrine of trias politika.
When will a court declare a decision void or voidable?
DECLARING SOMETHING VOID OR VOIDABLE?
PAJA does not refer to the issue, however, practically it is bound to be considered. Since unlawful administrative action continues to have effect until such time that it is set aside by a court of law, it is often referred to as ’voidable’ rather than ‘void’.
It has been stated that an administrative act would have to be ‘grossly defective’ for it to be described as ‘void’ (See Coalcor v Boiler Efficiency Services).
Baxter on the other hand argues that ‘voidable’ purports to suggest illegal action is valid until declared invalid and if the court refuses to declare a remedy the impression is that the refusal has in a sense validated or ratified the decision. As Baxter reasons, an undetected crime is not declared lawful. Why then should an administrative act be treated as lawful merely because of the fact that it remains unchallenged or a remedy is not available.
Generally, an administrative act should be ‘treated as valid until declared invalid’ since this reasoning is underscored by the omnia praesumuntur rite esse acta principle. Moreover, it is unlikely for an administrator to admit that an administrative act was invalid, and even if she was inclined to do so, would be without the power to undo the nullity since she is functus officio.
When will a court correct or substitute its own decision?
CORRECTING OR SUBSTITUTING
At common law the rule is that the court will generally refer the matter back to the decision-maker to attempt to ‘correct’ the decision.
The court will only substitute its own decision for that of the administrator in exceptional circumstances, such as:
- where the result or outcome is a foregone conclusion;
- where any further delay would cause unjustifiable prejudice to the applicant;
- where the decision-maker has exhibited bias or incompetence to such a degree that it would be unfair to ask the applicant to submit to its jurisdiction once again; and
- where the court is as well qualified as the original decision-maker to make the decision.
The criticism to be directed against the last two of the exceptions is the extent to which it may be argued they compromise the trias politika doctrine and principle of legality.
