SOUTH AFRICA

Review of administrative decisions of government by administrative courts and tribunals of SOUTH AFRICA

1. Jurisdiction or competence

1.1. Which categories of administrative decisions are eligible for review (administrative regulations/individual decisions)?

Section 1(i) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) defines

administrative action as

'any decision taken, or any failure to take a decision, by –

(a) an organ of state, when –

(i) exercising a power in terms of the Constitution or a provincial

constitution; or

(ii) exercising a public power or performing a public function in terms of

any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a

public power or performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external

legal effect.'

Section 1 of PAJA determines that any decision which is defined as a decision ‘of an

administrative nature’ can constitute administrative action. But, it excludes from the

scope of the definition of administrative action ‘the executive powers and functions of

the National Executive’. In Masetlha v President of the Republic of South Africa &

Another 2008 (1) SA 566 (CC) the distinction between conduct of an administrative

nature and conduct of an executive nature was at issue. The appellant in this case –

previously head and Director-General of the National Intelligence Agency –

challenged a decision of the President of the Republic to dismiss him relying, inter

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alia, on the argument that the dismissal was procedurally unfair, as he was not

afforded a proper opportunity to state his case to the President before the decision

was taken. This aspect of the challenge to the decision required the appellant to

establish that the President’s decision constituted administrative action. Moseneke

DCJ (with Langa CJ, Navsa AJ, Nkabinde J, O’ Regan J, Skweyiya J and van der

Westhuizen J concurring) held in this respect that the President’s decision did not

constitute administrative action but action of an executive nature. In support of this

approach, Moseneke J pointed out that the power to appoint and to dismiss the head

of the National Intelligence Agency is, although regulated by legislation, derived from

s 209(2) of the Constitution.

In addition, the power is a ‘special power’ conferred specially on the President to

enable him properly to conduct the business of government and, in particular,

effectively to pursue national security. In consequence, so Moseneke DCJ held, it

would not be appropriate to subject this power to the constraints of procedural

fairness, since this would jeopardise the President’s ability to act effectively and

promptly in the interest of national security.

Section 1 (b)(ee) of PAJA excludes from the definition of administrative action the

‘judicial functions of a judicial officer of a court’. In Sidumo v Rustenburg Platinum

Mines Ltd 2008 (2) SA 24 (CC) the Constitutional Court had occasion to consider the

distinction between administrative action and conduct of a judicial nature. The case

dealt with the review of a decision of the Commission for Conciliation, Mediation and

Arbitration (CCMA) in terms of the compulsory arbitration provisions of the Labour

Relations Act 66 of 1995 (LRA) to set aside the dismissal of the appellant by the

respondent and to order the appellant’s reinstatement. One of the issues raised by

the case was the question whether the CCMA’s arbitration award constituted

administrative action subject to review in terms of PAJA. The majority of the court,

per Navsa AJ (with Moseneke DCJ, Madala J, O’Regan J, and Van der Westhuizen J

concurring) held that the award did amount to administrative action in terms of s 33 of

the Constitution and in terms of PAJA, but that it nevertheless stood to be reviewed

not in terms of PAJA but in terms of the LRA. Responding to arguments of the

appellants that the arbitration award constituted judicial rather than administrative

action, Navsa AJ pointed out that, although the nature of the conduct is more

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important than the identity of the decision maker, in deciding whether or not conduct

constitutes administrative action, there are many examples of administrative tribunals

that function in a similar fashion to courts, but whose conduct has always been held

to be administrative action. In this respect he referred by way of example to the

former Industrial Court and to the Amnesty Committee of the Truth and

Reconciliation Committee, both of which functioned in the same way as courts, but

were held to be administrative tribunals exercising administrative action. Navsa AJ acknowledged that there are similarities between the CCMA in its

arbitration role and courts of law: the prescribed manner of adducing evidence,

questioning witnesses and concluding arguments; the powers of subpoena conferred

on a CCMA Commissioner; the possibility of awards of the CCMA being enforced

through contempt proceedings; the finality and binding nature of the CCMA’s

arbitration awards; and the power of the CCMA in arbitration proceedings to make

orders for the payment of costs are all similar to the powers and proceedings of a

court of law.

Nevertheless, he held that the CCMA is not a court of law, because there are what

he considered to be ‘significant differences’: a CCMA commissioner is empowered to

conduct proceedings as he or she sees fit, with the minimum of formalities, as long

as the dispute is disposed of fairly and quickly; no blanket provision is made for legal

representation; the CCMA does not follow a system of binding precedent; and CCMA

commissioners do not enjoy the security of tenure that judges do.

On this basis Navsa AJ concluded that arbitration awards of the CCMA are

administrative rather than judicial in nature.

Excluded from the definition of 'administrative action' in PAJA are also executive

powers or functions of the Provincial Executive and the executive functions of

municipalities. The performance of legislative functions by Parliament and other

elected legislative bodies, a decision to prosecute, decisions relating to the

appointment of judicial officers by the Judicial Service Commission, and so forth.

1.2. According to which criteria is the jurisdictional competence of the court or tribunal (hereafter “court”) determined? Are there certain decisions of

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by reason of the nature or substance of such decision?

Section 6(1) of PAJA provides:

'Any person may institute proceedings in a court or a tribunal for the judicial review of

an administrative action.'

'Court' is defined in s 1(iv) of PAJA defines a court as meaning:

(a) The Constitutional Court, or

(b) (i) a High Court or another court of similar status,

(ii) specially designated magistrates' courts.

While 'tribunal' is defined as 'any independent and impartial tribunal established by

national legislation for the purpose of judicially reviewing an administrative action in

terms of this Act'.

Legislation may provide for the reconsideration on appeal or for the review of a

decision. This legislation will usually establish or designate the specific body from

which one can seek review from, the procedure to be followed as well as the

remedial powers of such a body on review.

South Africa does not have a general administrative appeals tribunal, instead

legislation on an ad hoc basis makes provision for appeals from administrative

bodies to a wide range of officials, boards, tribunals and courts for eg The Lands

Claims Court by s 22 of the Restitution of Land Rights Act 22 of 1994; Competition

Appeal Court by s 37 of the Competition Act 89 of 1998; Commissioner of Patents by

s 75 of the Patents Act 57 of 1978; (Special) Tax Court by s 83 of the Income Tax Act

58 of 1962; Electoral Court ss 18 and 20 of the Electoral Commission Act; Labour

Court and Labour Appeal Court by ss 151, 158, 167 and 174 of the Labour Relations

Act 66 of 1995.

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In terms of ss 167 and 169 of the Constitution decisions of all Review Courts are

subject to appeal to the Constitutional Court, in constitutional matters, and in all other

matters, to the Supreme Court of Appeal.

1.3. Please provide relevant case-law illustrating the extent and limits of the scope of the competence of the court in charge of review.

Grounds for review are set out in s 6(2) of PAJA. It provides:

'(2) A court or tribunal has the power to judicially review an administrative action if—

(a) the administrator who took it—

(i) was not authorised to do so by the empowering provision;

(ii) acted under a delegation of power which was not authorised by the

empowering provision; or

(iii) was biased or reasonably suspected of bias;

(b) a mandatory and material procedure or condition prescribed by an

empowering provision was not complied with;

(c) the action was procedurally unfair;

(d) the action was materially influenced by an error of law;

(e) the action was taken—

(i) for a reason not authorised by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into account or

relevant considerations were not considered;

(iv) because of the unauthorised or unwarranted dictates of another

person or body;

(v) in bad faith; or

(vi) arbitrarily or capriciously;

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( f ) the action itself—

(i) contravenes a law or is not authorised by the empowering provision;

or

(ii) is not rationally connected to—

(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;

(g) the action concerned consists of a failure to take a decision;

(h) the exercise of the power or the performance of the function authorised by

the empowering provision, in pursuance of which the administrative

action was purportedly taken, is so unreasonable that no reasonable

person could have so exercised the power or performed the function; or

(i) the action is otherwise unconstitutional or unlawful.'

The powers of the Review Court are circumscribed in s 8 of PAJA. It provides:

'(1) The court or tribunal, in 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 the manner the court or tribunal requires;

(b) prohibiting the administrator from acting in a particular manner;

(c) setting aside the administrative action and—

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(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 a temporary interdict or other temporary relief; or

( f ) as to costs.

(2) The court or tribunal, in proceedings for judicial review in terms of section

6 (3), may grant any order that is just and equitable, including orders—

(a) directing the taking of the decision;

(b) declaring the rights of the parties in relation to the taking of the decision;

(c) directing any of the parties to do, or to refrain from doing, any act or thing

the doing, or the refraining from the doing, of which the court or tribunal

considers necessary to do justice between the parties; or

(d) as to costs.'

Examples of administrative review:

• Substantive fairness not a requirement. Criteria for administrative review are

legality, procedural fairness and rationality: Del Porto School Governing Body v

Premier, Western Cape 2002 (3) SA 265 (CC) paras 84-90.

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• Judicial deference applied in cases involving complex, multi-facetted

administrative decisions: Bato Star Fishing (Pty) Ltd v Minister of Environmental

Affairs 2004 (4) SA 490 (CC) paras 44-57.

• Unreasonable delay in application may lead to refusal by court to set aside invalid

administrative decision: Associated Institutions Pension Fund v Van Zyl 2005 (2) SA

302 (SCA) paras 46-47.

• Review Court cannot give effect to 'substantive legitimate expectation': Meyer v

Iscor Pension Fund 2003 (2) SA 715 (SCA) para 27.

• Court set aside decision to change name of town for failure by administrative

authority to consult properly: Chairpersons v Minister of Art & Culture [2007] 2 All SA

582 (SCA).

• Court has discretion to exempt party from obligation to exhaust internal remedies

if deemed in the interests of justice: Western Cape Minister of Education v Governing

Body of Mikro Primary School 2006 (1) SA 1 (SCA)

• Organs of State can take its own decisions on review: Pepcor Retirement Fund v

Financial Services Board 2003 (6) SA 38 (SCA).

2. Procedure

2.1. General description of applicable procedural rules:

Where can these rules be found; by which statute or regulations are they defined?

At present the rules of procedure can be found in the Uniform Rules of the High

Court and more particularly Rule 53. But new rules have been promulgated as

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contemplated by s 7(3) of PAJA. These rules are to come into operation on a date

fixed by the Minister of Justice in the Government Gazette.

The answers to the questions that follow are based on the 'new' rules.

Are the various procedural steps in the hands of the parties and/or the court and which role do they respectively play?

The court may give directions for the proper conduct of proceedings under; shorten

any period prescribed in the rules of the court in which the proceedings are instituted

and extend any period prescribed in the rules of the court in which the proceedings

are instituted notwithstanding that that period may have elapsed. The parties have

no power to alter the procedural steps.

Is there a prosecutor? If so which role does he/she play?

In review proceedings there is no prosecutor. Each party is represented by counsel.

Are the court proceedings mainly written or oral i.e. do the parties communicate by exchanging written presentations or in the form of an oral debate before the court?

Court proceedings are mainly written as an application for judicial review of an

administrative action must be brought on notice of motion supported by affidavit. A

judicial officer may at any time after an application for judicial review has been

instituted require the parties to attend a conference in chambers for purposes of-

(a) the limitation of issues;

(b) considering settlement or mediation;

(c) directions as to applications to strike out and other interlocutory

applications;

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(d) directions to expedite proceedings; or

(e) any other matter considered necessary.

Is the case determined by a single judge or a panel of judges?

During review proceedings in the High court (or in courts or tribunals of similar status)

the case is determined by a single judge. Once on appeal the case is determined by

a panel of judges.

2.2. What conditions must be fulfilled in order to confer the right to make a claim for review? Must the plaintiff show some form of personal interest? If so, is it defined in a broad or narrow manner? Please provide relevant case-law.

In terms of s 6(1) of PAJA, anyone may bring review proceedings. S 38 of the

Constitution enumerates the category of persons or bodies that have standing to

challenge the legality of a challenged action.

S 38 reads:

'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 the 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 or

persons;

(d) an association acting in the interest of its members'

The effect of this section is that legal standing is accorded wide and generous

application, extending beyond the traditional common-law approach to standing.

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In Ferreira v Levin; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) para 38 the

Constitutional Court clearly stated that a more generous approach to legal standing

applied to all constitutional cases and not only in cases where an infringement or, or

a threat to, any right entrenched in the Constitution is alleged. The court

emphasised the discretionary powers of courts in relation to standing and stated that

it is for the court to decide what a sufficient interest is in such circumstances. It is

clear from this that in constitutional cases, and thus in administrative cases too –

because they rely indirectly on s 33 of the Constitution - the courts are required to

adopt a broad approach to standing, rather than a narrow one. The link between the

applicant's interest and the requested remedy must not be too tenuous, abstract or

hypothetical. In Kolbatshenko v King 2001 (4) SA 336 (C) the court set out the

factors that could be considered to ensure that the applicant had the requisite

standing to bring the application for review of administrative action.

1. the applicant must have an adequate interest in the subject matter of the

litigation – it is not a technical concept and is usually described as a direct

interest in the relief sought;

2. it must not be too far removed;

3. it must be actual, not abstract or academic, and

4. it must be a current issue and not a hypothetical one.

The question whether these requirements have been met depends on the facts.

Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA

609 (E)

Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA

1184 (SCA).

2.3. Does the plaintiff have direct access to the court, or is he/she obliged to submit his/her demand through a counsel/attorney?

Natural persons have direct access to court. Corporate bodies have to be

represented by duly admitted practitioners, save in exceptional circumstances.

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Manong v Minister of Public Works (518/2008) [2009] ZASCA 110 (23 September

2009)

2.4. Can a legal demand be submitted to an administrative court using electronic technologies (Internet)?

Parties are bound to submit their cases in the form of signed affidavits. Submissions

to the administrative authorities themselves can, however, be done electronically

(see Form A of new regulations).

2.5. Is there some form of public or private legal aid system aimed at providing assistance to a person who cannot afford an attorney?

Yes. The Legal Aid Board is a statutory, public authority and the Legal Resources

Centre is a privately funded organisation that provides financial assistance to

persons who cannot afford legal representation.

2.6. When a claim is made to a court, is the right of the relevant public authority to implement the decision stayed or suspended until the court has determined the case?

Section 8(1)(e) of PAJA authorises a court, in proceedings for judicial review, to grant

'an order that is just and equitable, including an order granting a temporary interdict

or other temporary relief'. A temporary interdict is designed to preserve or maintain

the status quo. It is a preliminary decision regarding the rights of an applicant

pending a final determination of the issues between the parties. Once the matter has

been finally decided the interim interdict will cease operating Interim interdicts are

often used in disputes that concern the validity of administrative action.

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High courts as well as the Supreme Court of Appeal are constitutionally empowered

to declare Acts of Parliament invalid. This order has no effect until confirmed by the

Constitutional Court. Section 172(2)(b) of the Constitution allows a court which

makes an order of constitutional invalidity to grant a temporary interdict or other

temporary relief pending the decision of the Constitutional Court. In the context of

administrative law such an order may prohibit the administrator from exercising

certain powers in terms of a statute or compel it to exercise its powers in a certain

manner. The order of invalidity can be suspended granting Parliament a certain

period of time within which to rectify the defect. The Constitutional Court has granted

an order in the form of a mandamus compelling the authority to exercise its powers in

a certain manner, in compliance with administrative law requirements, until such time

as the defect in question is rectified by Parliament

2.6. Can the court deliver an injunction ordering the Executive or a public authority to produce a document to which the other party could not previously have access? (Please provide relevant case-law).

Yes. The power of the courts to compel public authorities to produce information

legitimately required for litigation purposes is governed by the promotion of Access to

Information Act 2 of 2000 (PAIA). For the application of PAIA see eg: Transmed v SA

Metal Machinery 2006 (6) SA 285 (SCA); Claase v Information Officer, SA Airways

(Pty) Ltd 2007 (5) SA 469 (SCA); Mittal Steel South Africa (Ltd) v Hlatshwayo 2007

(1) SA 66 (SCA).

2.7. Are there emergency or interim procedures? Are they simply aimed at delivering preliminary injunctions (such as a Temporary Restraining Order) or at taking provisional measures, or can they also resolve a fundamental question?

Refer to 2.6

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3. The powers of the administrative judge

3.1. What is the hierarchy of legal standards (Constitution, international law, statutes) that the court takes into account when carrying out review?

In Minister of Health v New Clicks South Africa ( Pty ) Ltd 2006 (2) SA 311 (CC) the

basic question of what the relationship between the Promotion of Administrative

Justice Act, 3 of 2000 (PAJA) and the constitutional right to administrative justice,

entrenched in section 33 of the Constitution of the Republic of South Africa, 1996

(the Constitution), is, was determined by the Constitutional Court.

The case, an appeal against a decision of the Supreme Court of Appeal

(Pharmaceutical Society of South Africa v Tshabalala - Msimang NO ; New Clicks

South Africa ( Pty ) Ltd v Minister of Health 2005 (3) SA 238 (SCA) ), concerned the

validity of a range of regulations enacted by the Minister of Health in terms of the

Medicines and Related Substances Act, 101 of 1965. In its judgment the SCA had

elected to review the regulations at issue for lawfulness directly in terms of section 33

of the Constitution and the common law and not in terms of PAJA. This raised the

question before the Constitutional Court whether or not there exists, independently of

PAJA, an avenue for review of administrative action in terms of sec 33 of the

Constitution.

Chaskalson CJ rejected the SCA's direct reliance on section 33 (at para 93), pointing

out that PAJA had been enacted pursuant to a constitutional command that

legislation be enacted to give effect to the right to administrative justice. In this light,

to allow litigants to go behind the provisions of PAJA to utilise section 33(1) of the

Constitution to review administrative action would frustrate the purpose with which

section 33(3) of the Constitution required the enactment of PAJA (at para 96).

In a separate judgment concurring on this point, Nqcobo J further pointed out that, to

allow administrative law review of administrative action on the basis of section 33(1)

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directly, in addition to PAJA, would lead to the development of two parallel systems

of law dealing with the same subject matter, a situation that he finds untenable (at

para 436). Ngobo J proceeds to hold that litigants can rely directly on section 33(1) of

the Constitution when seeking to review administrative action only when they allege

that the remedies afforded by PAJA are in some way deficient, in which case their

challenge on the basis of section 33(1) would not be directed at the administrative

action in question, but at the offending provisions of PAJA itself, just as it would be

when section 33(1) is used to challenge the provisions of any other legislation (at

para 437).

This residual role for section 33(1) was illustrated in Platinum Asset Management

(Pty) Ltd v Financial Services Board and Others ; Anglo Rand Capital House (Pty)

Ltd v Financial Services Board 2006 (4) SA 73 (W) . The case involved an application

for the review of a decision by the chief executive officer of the Financial Services

Board (FSB) in his capacity as registrar under the Inspection of Financial Institutions

Act 80 of 1998 to order an inspection into the affairs of the applicants. In addition to

their application for review of the registrar's decision, the applicants also sought to

have ss 3 and 4(1) (b) - (f) of the Inspection Act overturned on the ground, inter alia,

that it violated section 33(1) of the Constitution. The applicants were concerned that

the offending sections afforded the registrar too wide a discretion and as such

militated against lawful administrative action. The court rejected this aspect of the

application, in part because it was possible, if the offending sections were read

together with the general provisions of PAJA regulating administrative action, to

interpret the offending provisions in conformity with the constitutional right to

administrative justice (at para 142-143).

The Constitution obliges the courts to consider international human rights.

Administrators must recognise international documents which deal with international

human rights whenever they are relevant to the administrators' functions and the

administrators must act in accordance with these international documents. In S v

Makwanyane 1995 (3) SA 391 (CC) the court held that both binding and non-binding

international law may be used as tools of interpretation unless in conflict with the

Constitution.

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3.2. When the Executive or a public authority gives its interpretation of a statute, can the lawfulness of such interpretation be challenged in court? If so, according to which standards and criteria? Is the court bound by policy decisions of the Executive or a public authority?

The courts are not bound by any interpretation given to statutes by the Executive. In

terms of s165 of the Constitution, the judicial authority is vested in the courts. The

courts are independent and subject only to the Constitution and the law.

3.3. If the Executive gives its interpretation of treaty law, is the court bound by such interpretation?

The executive is responsible for the conduct of South Africa's foreign relations and in

the exercise of this function it will frequently make decisions on subjects governed by

international law. Obviously it is undesirable that different organs of state should

pronounce on the same subject, particularly if their assessment of the legal

implications of the matter should differ. The judgement of the executive is generally

given in an executive certificate handed in to the court and the effect is to substitute

the view of the government for and independent judicial investigation into the factual

position.

In practise the courts extend a margin of appreciation to the executive in which it is

undesirable that the state should 'speak in two voices'. In other cases, such as the

interpretation or continued existence of a treaty, different considerations apply.

Sections 232 and 39(1) of the Constitution require a court to examine whether the

statement in an executive certificate correctly reflects international law. In Harksen v

President of the Republic of South Africa 1998 (2) SA 1011 (C) the court declined to

accept the Minister's certificate as binding upon it and make its own determination of

the question before it.

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3.4. Insofar as discretionary measures are concerned, which type of review does the court exercise? Provide, if possible, relevant case-law to show how the court verifies the reasonableness of a decision of the Executive or a public authority and checks whether the reasons are consistent with the substance of the decision.

The general powers of courts to interfere with the exercise of administrative decisions

and the exercise of a discretions are set out in Section 6(2) of PAJA which is quoted

under question 1.3 above. Reasonableness, in particular, is dealt with in s 6(2)(h). It

provides:

'the exercise of the power or the performance of the function authorised by the

empowering provision, in pursuance of which the administrative action was

purportedly taken, is so unreasonable that no reasonable person could have so

exercised the power or performed the function'.

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004

(4) SA 490 (CC) the court addressed the reasonableness issue in para 44 as follows:

'Even if it may be thought that the language of section 6(2)(h), if taken literally, might

set a standard such that a decision would rarely if ever be found unreasonable, that

is not the proper constitutional meaning which should be attached to the subsection.

The subsection must be construed consistently with the Constitution and in particular

section 33 which requires administrative action to be "reasonable". Section 6(2)(h)

should then be understood to require a simple test, namely that an administrative

decision will be reviewable if, in Lord Cooke's words, it is one that a reasonable

decision-maker could not reach.'

The PAJA test draws directly on the language of the well-known Wednesbury

decision of the English Court of Appeal in Associated Provincial Picture Houses LTD

v Wednesbury Corporation [1948] 1 KB 223 (CA) 233 to 234.

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In Trinity Broadcasting, Ciskei v Independent Communications Authority of SA

[2003] 4 All SA 589 (SCA) Howie P said the following on reasonableness as a

ground for review:

'In requiring reasonable administrative action the Constitution does not, in my view,

intend that such action must in review proceedings be tested against the

reasonableness of the merits of the action in the same way as in an appeal. In other

words it is not required that the action must be substantively reasonable, in that

sense, in order to withstand review. Apart from that being too high a threshold, it

would mean that all administrative action would be liable to correction on review if

objectively assessed as substantively unreasonable: cf Bel Porto School Governing

Body and others v Premier, Western Cape and another. As made clear in Bel Porto,

the review threshold is rationality. Again, the test is an objective one, it being

immaterial if the functionary acted in the belief, in good faith, that the action was

rational. Rationality is, as has been shown above, one of the criteria now laid down in

section 6(2)(f )(ii) of the Promotion of Administrative Justice Act. Reasonableness

can, of course, be a relevant factor but only where the question is whether the action

is so unreasonable that no reasonable person would have resorted to it.'

Logbro Properties CC v Bedderson NO 2003 (2) SA 460 (SCA)

Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd [2003] 2

All SA 615 (SCA).

3.5. Is the court simply empowered to quash (to declare null and void) the decision or to dismiss the legal demand? Instead of quashing the decision, is it within the authority of the court to amend or modify the decision? Can the court substitute an entirely new and different decision? Can the court reconsider the merits of the decision?

The general principle based on separation of powers it that courts should not readily

replace the decisions of an administrator with decisions of their own. Section

8(1)(a)(ii) of PAJA provides for an order directing the administrator to act in the

manner the court or tribunal requires. In essence this subparagraph gives the judicial

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officer the power to substitute his/her own decision for that of the administrator. The

circumstances under which the court would be justified in correcting the

administrative action in question are:

1. Where the end result is a foregone conclusion and it would serve no purpose

to refer the matter back to the original decision-maker;

2. Where further delay would cause undue prejudice to the applicant;

3. Where the original decision-maker exhibits bias or incompetence to such a

degree that it would be unfair to take expect the applicant to submit to its

jurisdiction again;

4. Where the court is in as good a position as the original decision-maker to

make the decision;

5. The willingness of the administrator to re-apply its mind to the issues at stake.

6. Change in circumstances

In terms of section 8(1)(c)(ii) the court can set aside the matter and in exceptional

cases substitute or vary the administrative action or correct a defect. The question

of what constitutes an exceptional case is a difficult one and will depend on the

circumstances of the case.

This confirms the common law position in South African jurisdictions.

3.6. When the court quashes a decision taken by a public authority, does this take effect retroactively, when the original decision was made, or simply when the court rules? Does the judge have power to fix the time from which the annulment operates? On what principles is a date chosen?

The case of Seale v Van Rooyen 2008 (4) SA 43 (SCA), concerned an appeal

against an order of the Pretoria High Court cancelling the registration by the

Registrar of Deeds of a servitude in favour of the appellant (Seale) over property

belonging to the North West Provincial Government. The case is a sequel to the

decision of the SCA in Bullock NO v Provincial Government , North West Province

2004 (5) SA 262 (SCA) ( Bullock ), in which the court set aside on review a decision

of the Premier of the North West Province (the Premier) to register a notarial deed of

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servitude in favour of Seale. The trouble giving rise to Seale was that, by the time the

SCA in Bullock issued its order setting aside the decision of the Premier, and

unbeknown to the SCA and the appellant in Bullock, the Registrar of Deeds in

Pretoria had already registered the servitude. Because it was unaware that

registration had already taken place, the SCA in Bullock did not, consequent upon its

decision setting aside the Premier’s decision, also issue an order that the registration

of the servitude be cancelled. When the appellant in Bullock learned of the

registration of the servitude and approached the Registrar with a request to cancel it,

the request was met with an assertion that the registration could not be cancelled

without an order to do so from the SCA. This prompted the Transvaal Yacht Club

(TYC) (the appellant in Bullock who had sought the review and setting aside of the

Premier’s decision) to approach the Pretoria High Court for an order directing the

cancellation of the registration of the servitude, which order was granted, and against

which order Seale appealed to the SCA.

Before the SCA, Seale, apart from attacking the locus standi and authority of the

TYC to bring the application to have the registration cancelled before the High Court,

argued that the High Court had erred in holding that the registration of the servitude

be cancelled as an ineluctable consequence of the decision giving rise to it (the

Premier’s decision). Rather, he argued, the registration of the servitude by the

Registrar of Deeds was a separate decision and should have been taken on review

and set aside on its own terms. This argument the SCA, per Cloete JA, rejected. For

Cloete JA it was clear that the registration of the servitude by the Registrar was not a

‘decision’. Instead, he argued, the implementation of the power of attorney by the

relevant official of the Province that enabled the registration of the notarial deed of

servitude, the conclusion of the notarial deed of servitude and the submission of the

relevant documents with the Registrar of Deeds were simply consequent upon the

Premier’s decision: ‘acts performed to give effect to the decision of the Premier to

register a notarial deed of servitude in favour of Seale’.

As such, so he continued, the setting aside of the Premier’s decision inevitably meant

that the registration of the servitude became null and void.

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Seale then sought recourse in passages from the decision in Oudekraal Estates (Pty)

Ltd v City of Cape Town 2004 (6) SA 222 (SCA) distinguishing between the

continued validity of acts consequent upon an initial administrative decision where

those acts depended for their consequent validity on the substantive validity of the

initial decision and where those acts simply depended on the mere fact of existence

of the initial decision, arguing that the registration of the servitude was the latter kind

of act and as such was not affected in its validity by the setting aside of the Premier’s

decision. Again Cloete JA disagreed – certainly, he argued, the registration of the

servitude depended for its validity not on the substantive soundness of the Premier’s

decision but on its mere existence, as Seale claimed. However, a correct reading of

the relevant passages from Oudekraal showed that such acts would be valid only for

so long as the initial decision on whose mere existence they depended remained

intact. Courts on review, Cloete JA explained, having found a decision to be invalid,

retain the discretion whether or not to set that decision aside. For as long as that

discretion is not exercised, or where the discretion is exercised so that the invalid

decision is not set aside, acts consequent upon the invalid decision remain in place,

but as soon as the discretion is exercised to set the invalid decision aside, the acts

consequent upon it become null and void. In this case, Cloete J then concluded on

this point, the discretion was exercised already in Bullock – the decision was found to

be invalid and was then set aside. That meant that, immediately consequent upon

that exercise of discretion, the registration of the servitude was ‘of no force and

effect’.

In addition, Cloete JA pointed out, the order of the SCA in Bullock setting aside the

Premier’s decision operated retrospectively in the sense that it substituted the order

of the High Court in that case against which the TYC had launched the appeal. As

such, the decision of the Premier consequent upon which the Registrar registered the

servitude was indeed invalid and set aside on the date the High Court handed down

its order in Bullock, at which time, of course, the Registrar had not yet registered the

servitude. For that reason also it could be held that the registration of the servitude

was of no force and effect (although, as in the first case also, an order of court would

be required to enable the Registrar to cancel it).

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3.7 What means are available to a judge to compel the administration to enforce a decision which the executive does not wish to carry out?

Section 8(1)(c)(ii)(bb) of PAJA reads as follows:

'The court or tribunal, in proceeding for judicial review in terms of section 6(1), may

grant any order that is just and equitable, including orders –

(a) settings aside the administrative action and

(i) …

(ii) In exceptional cases –

(aa) …

(bb) directing the administrator or any other party to the proceedings

to pay compensation.

This section has been relied upon in the High Courts in an effort to ensure

compliance by the provincial government of its constitutional duties of efficient and

accountable public administration. If an official should refuse or fail to comply with a

direct order he or she will be liable for both civil and criminal contempt of court.

Problems have, however, arisen in respect of orders to pay money particularly with

regards to social grants. These problems were dealt with in Nyathi v MEC for

Department of Health, Gauteng and another 2008 (5) SA 94 (CC) where the

Constitutional Court made the following remarks:

'[79] The practical effect of s 3 [of the State Liability Act 20 of 1957, which prohibits

execution against State property] is that the State cannot be forced to honour court

orders as there is no manner in which compliance can be enforced. In the result, the

ordinary citizen has no effective remedy available in a situation where the State and

its officials fail to comply with a court order. In terms of contempt proceedings the

High Court found that s 3 of the Act does not mean that a Minister cannot be arrested

for contempt of court. It was held that Ministers of State and other public officials can

in fact be held in contempt in the exercise of the courts' inherent power to protect and

regulate their process, especially in light of s 173 of the Constitution. However,

contempt of court proceedings do not put money in the pocket or food on the table.

[80] Certain values in the Constitution have been designated as foundational to our

democracy. This in turn means that as pillar-stones of this democracy, they must be

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observed scrupulously. If these values are not observed and their precepts not

carried out conscientiously, we have a recipe for a constitutional crisis of great

magnitude. In a State predicated on a desire to maintain the rule of law, it is

imperative that one and all should be driven by a moral obligation to ensure the

continued survival of our democracy. That in my view means at the very least that

there should be strict compliance with court orders.

[81] The State's function is to execute its duties in terms of the relevant legislation.

The failure of the State to edify its functionaries about the very legislation which

governs their duties is unacceptable. It may be true that the problem lies with the

officials who do not know what their responsibilities are, and regrettably with legal

representatives who do not know who the responsible functionaries are. However,

this ignorance is no justification for their failings. It may explain the cause of the

problem, but it constitutes neither a good excuse nor a justification thereof and

cannot serve to protect the State from being held responsible.

[82] In terms of s 172(1)(b) of the Constitution a court which has declared a statutory

provision to be unconstitutional, and there-fore invalid, may make any order that is

just and equitable, including 'an order limiting the retrospective effect of the

declaration of invalidity' and 'an order suspending the declaration of invalidity for any

period and on any conditions, to allow the competent authority to correct the defect'.

[83] As stated earlier, the courts have referred to the obligations of the State to pay

its debts as a moral obligation and one which should, as a consequence of being

elected to power, be exercised in the interests of maintaining confidence in its rule.

This reliance on the moral obligation of the State to pay its debts is no longer

acceptable, as it has proven to be unproductive and has revealed the State's inability

or refusal to abide by its own moral standards. Hence, we need legislative measures

that will provide an effective way in which judgment orders may be satisfied, and

mechanisms that will inform the litigants in detail on the procedures that they will

need to follow regarding payment of court orders against the State. It has become

necessary for this court to oversee the process of compliance with court orders and

to ensure ultimately that compliance is both lasting and effective.

[84] The legislature is mandated to ensure the impartiality and efficiency of the

courts and their accessibility via legislative measures. It is apparent from the facts

and history of this case that the legislature and the executive have not taken

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measures, legislative or otherwise, to ensure that the orders of a court are obeyed.

What is required in this matter is for the State to take heed of the order made by this

court and change the manner in which it deals with the satisfaction of judgment

debts. This is in line with the constitutional duty placed on it.

[85] It is indeed unfortunate that judicial officers are placed in the invidious position of

having to oversee State action. However, oversight is essential in the circumstances.

In the interests of justice and in an effort to uphold the rights and principles that are

espoused in our Constitution, there can be no other effective manner to ensure that

the State complies with the order.

[86] Because of the 200-odd cases against the State for payment of judgment debts

there is a need for finality in those cases. An effective manner of dealing with the

problem at hand is to allow attachment against the funds. This would have a minimal

impact on the proper functioning of the State as the judgment creditor would be

executing against a fund and not against assets that are required for essential

services. The State has not made lack of resources an issue and has recognised that

the problem is an administrative one. The administrative delays can therefore be

overcome if execution is allowed. I do, however, recognise the need for proper

accounting procedures and the need to respect the authority of other arms of the

State - even those organs that do not always accord the courts the same respect.

The practice in other countries is to issue a certificate, which on presentation to the

relevant authorities will result in payment.

[87] Bearing in mind the many instances of State officials' inefficiency, the only

effective way to ensure that all outstanding debts are satisfied is to make an

appropriate order. I shall make that order.

[88] Regard needs to be had to the State's interest in monitoring and controlling its

accounting procedures and in being able to account for the losses, expenditures and

liabilities that the State incurs. The respondents have referred more than once to the

accounting processes which this court should bear in mind when making a decision

and this is a valid submission which needs to be considered seriously...

These processes are within the domain of the executive and should not be interfered

with unless clear and compelling reasons exist for doing so. In as much as this court

has the power to craft any order it deems fit in the circumstances, it does have to

ensure that the order is not too wide or far-reaching…

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[I]t is my view that the legislature should be allowed to introduce mechanisms that

would enable a judgment creditor to execute against the funds. The legislature is in

the best position to make this decision and also to integrate any policy changes that

would then have to be made. The separation of powers doctrine needs to be

respected and due deference afforded to the other arms of government, especially

when the matter relates to complex procedures beyond the expertise of this court. On

the concept of deference, this court in Bato Star further stated that

'the need for Courts to treat decision-makers with appropriate deference or

respect flows not from judicial courtesy or etiquette but from the fundamental

constitutional principle of the separation of powers itself.'

[89] This area of law has been problematic not only for South Africa, but for other

jurisdictions that have struggled to reach a balance between State immunity from tort

liability and government accountability to the State's citizens. In a State that has

pledged itself to redeem the dignity of its citizens, it should not be the State itself that

tramples on the rights of its citizens. On the contrary, everyone should be working

tirelessly to protect and promote that dignity, it being accepted that we are dealing

with a majority of previously disadvantaged persons.'

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC)

Jayiya v MEC for Welfare, Eastern Cape Provincial Government 2004 (2) SA 611

(SCA)

Kate v MEC for Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE)

ANY FURTHER INFORMATION OR ELECTORNIC VERSIONS OF CASE LAW MENTIONED ABOVE CAN BE MADE AVAILABLE ON REQUEST.

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