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06 April 2024
Topic 04 – Reasonableness and Rationality grounds of review

1. Trinity Broadcasting v ICASA 2003 SCA

Para 5 – Object of the ICASA Act.
Para 16 – Granting of broadcasting license (29 November 2001).
Para 20 - 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.
Para 20 – Review threshold is rationality (s 6(2)(f)(ii) PAJA.
Para – 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 (see s 6(2)(h)).
Para 21 – In applying the rationality test, a reviewing court will ask:
Is there a rational objective basis justifying the connection made by the administrative decision
maker between the material made available and the conclusion arrived at?
The April letter expressed that reasons would be furnished to the appellant on or by 30 April
2002.
Para 24 – The Court held that the question was whether “the words (in the letter) show that no
reasons existed at the time of the decision, or no reasons that had been agreed on by all
councilors.
The Court referred to the following sentence from the letter:
‘We shall be pleased if (you) would grant us an indulgence to furnish you with the said
reasons for Council’s decision on or before 30 April 2002.’
Para 24 – It then concluded that at the time of the decision reasons existed, even if not finally
formulated, when the decision was made granting the license and imposing the conditions.
Para 25 – What follows is the summary of the respondent’s reasons for refusing the requested
extension:
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• Until policies on community television had been implemented it was the respondent’s
view that it was not possible to extend the appellant’s broadcast area.
• The same attitude had been taken in 1997 and no new reasons or argument compelled a
different response.
• The shortage of frequencies would be dealt with in a position paper on community
television.
• There had to be orderly frequency management in the public interest and the respondent
needed to compile a frequency plan in order to identify frequencies, particularly for
regional community television.
• Ad hoc concessions to the appellant would impair the planning of such management and
a proper assessment would probably first necessitate enquiry in all relevant regions.
Para 27 – It would make good sense, and be fair to the appellant, to let the status quo remain in
the interim, but it would be a rational approach for the respondent eventually to allocate
community television licences only on considered implementation of its eventual policy and after
evaluating the respective capacities of the aspirant broadcasters who will no doubt compete for
those opportunities.

2. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004

(CC)

The inquiry into reasonableness commences at para 42.

Para 44 – Section 6(2)(h) of PAJA must be understood to require a simple test, namely that an
administrative decision will be reviewable if it is one that a reasonable decision-maker could not
reach.
Para 45 – what constitutes a reasonable decision depends on the facts of each case. The
following factors are relevant in deciding if a decision is reasonable or not:
1. Nature of the decision.
2. Identity and expertise of the decision-maker.
3. Range of factors relevant to the decision.
4. Reasons given for decision.
5. Nature of competing interests.
6. Impact of decision on those affected.
Para 45 – distinction between review and appeal still significant, though review functions of a
court now have a substantive and procedural ingredient.
Para 46 – Judicial deference.
Para 49 – Courts must be careful not to attribute to themselves superior wisdom in relation to
matters entrusted to other branches of government.
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Para 49 – A decision that requires an equilibrium to be struck between a range of competing

interests and which is to be taken by a person/institution with specific expertise in that area must
be respected by the courts.
Para 52 – The question is whether in adopting five percent, the Chief Director acted
unreasonably.

3. Calibre v Bargaining Council 2010 SCA

Para 60 – Where a decision is founded on reason, it is difficult to see how it could be said that it
is so unreasonable that a reasonable decision-maker could not have come to it.
Sidumo v Rustenburg Platinum Mines, para 110 test – is the decision reached by the
administrator one that a reasonable decision-maker could not reach?
Minister of Defence v Motau, para 69
Distinction between rationality and reasonableness review.
Reasonableness review is concerned with the decision itselt.
Rationality review is about whether there is sufficient connection between the means employed
and the object sought to be achieved.

4. Ehrlich v Minister of Correctional Services 2008 E

Application to review and set aside the ‘decision of the second respondent to deny medium
category offenders at Mdantsane Prison supervised access to the gymnasium in A-section of the
prison for purposes of development programs.
Para [23]– From then until 8 October 2007, the karate development program continued as before.
On that day, however, the applicant was refused access to the gymnasium to
teach a karate class. He took the matter up with the second respondent who
informed him that he had decided that no medium category prisoners were to be allowed into A-
Section because it was now a maximum category section.
Para 37 – The decision by the second respondent is an administrative decision (action). It was
exercise of public power exercised during the administration of the prison in terms of the
Correctional Services Act.
It affected the rights of the applicant and others to take part in a development program.
As it put a stop on the karate development program, it had a direct external legal effect.
Para 40 – The decision was based on an error of law. The second respondent erred in
interpreting his powers.
He failed to properly apply his mind.
Para 43 – the Court held that the second respondent’s decision was unreasonable as no
reasonable decision-maker could have made it.
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5. JSC v Cape Bar Council 2012 SCA

Decisions of the JSC are not reviewable under PAJA, as they are expressly excluded from the
definition of AA.
Para 20 – the High Court (court a quo) found that however, the impugned decision of the JSC
was reviewable under the doctrine of legality.
Para 21 – the principle of legality requires that the exercise of public power should not be
arbitrary or irrational.
Para 36 – The absence of the President and DP of the SCA, the JSC was not properly
constituted, and the JSC decisions as regards the six unsuccessful candidates were not validly
taken.
Para 37 – the Cape Bar Council contended that the JSC’s failure to appoint any of the six
candidates to fill in the two remaining vacancies was irrational and invalid.
Para 38 – the CBC asked the JSC for reasons why it did not recommend any of the candidates,
and instead left the two vacancies. The JSC’s only response was that none of these candidates
received a majority vote.
In response to this, the CBC said that this amounted to no reason at all, and this
warranted an inference that the decision not to recommend any candidate to fill in the two
vacancies was irrational and unlawful.
Para 39 – In its answering affidavit the JSC did not deny that the three candidates proposed by
the CBC were appropriately qualified persons who were fit and proper for judicial appointment
as contemplated by s 174(1), or even that Rogers SC was eminently suitable for judicial
appointment.
Para 45 – The JSC, as a general rule, is obliged to give reasons for its decision not to
recommend a particular candidate.
The court agreed with the CBC that, the reason given by the JSC (“no majority vote”)
was no reason at all.
Para 47 – a duty to given reasons entails a duty to rationalize a decision.
Para 51 – Although the JSC is not under a constitutional obligation to give reasons for every
decision it takes, it nevertheless has a general obligation to do so.
In this case, the facts gave rise to a prima facie inference that the decision not to recommend any
of the suitable candidates is irrational. Consequently, the JSC’s failure to give reasons confirmed
this inference.
The Court held that, the failure by the JSC to fill the two vacancies in the WCHC was irrational
and unlawful.
6. DA v President of RSA 2012 CC
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Para 29 – Reasonableness and rationality tests are two separate tests.

Para 30 –
“The Executive has a wide discretion in selecting the means to achieve its constitutionally
permissible objectives. Courts may not interfere with the means selected simply because they do
not like them, or because there are other more appropriate means that could have been selected.
But, where the decision is challenged on the grounds of rationality, courts are obliged to examine
the means selected to determine whether they are rationally related to the objective sought to be
achieved. What must be stressed is that the purpose of the enquiry is to determine not whether
there are other means that could have been used, but whether the means selected are rationally
related to the objective sought to be achieved. And if, objectively speaking, they are not, they fall
short of the standard demanded by the Constitution.”
Para 32 – Once there is a rational relationship, an executive decision of the kind with which we
are here concerned is constitutional.

PAJA provides that administrative action is reviewable if:

the action itself is not rationally connected to –
the purpose for which it was taken;
the purpose of the empowering provision;
the information before the administrator; or
the reasons given for it by the administrator.
(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;

7. Minister of Defence and Another v Xulu [2018] (SCA)

The SANDF informed Xulu, at the end of 2010, that it did not intend to renew his “employment
contract” that was due to expire on 31 July 2011.
The full bench of the High Court, Pretoria, set aside this decision and ordered the SANDF to
appoint Xulu on a contract for a further six years, expiring on 30 June 2017.
Para 5 – He was afforded an opportunity to make representations.
Para 19 (also SNDU v Minister of Defense 1999 CC, para 27) – Though the relationship
between soldiers and the SANDF is not identical to the ordinary employment relationship, they
are (soldiers) nonetheless workers and entitled to the constitutional protection that workers enjoy
under section 23 of the Constitution.
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Para 26 – failure to follow provisions of the Policy:

The notice given to Mr Xulu was not given eight months before the expiry of his contract.
[27] The end result was that someone who had already determined that his contract should not be
renewed considered Mr Xulu’s representations.
In substance Major General Nkabinde played the roles of prosecutor, judge and executioner. That
was flatly contrary to the Policy and an infringement of Mr Xulu’s right to fair labour practices.
The issue is to determine its legal consequences.
Para 28 – The court a quo (Lephoko J) held that employment related decisions do not constitute
administrative action for purpose of PAJA. He therefore held that the reliance on PAJA by Mr
Xulu was misplaced. → Reliance (by court) was on Chirwa v Transnet 2008 CC, para 139 and
Gcaba 2010 CC, para 64.
Para 29 – The full bench declined to decide whether the decision was administrative action, and
held that it could be resolved through the application of the principle of legality.
The full bench held that: in disregarding its own policy relating to non-renewal of fixed term
contracts and Mr Xulu’s right to fair labour practices the SANDF acted contrary to the principle
of legality. Its decision not to renew Mr Xulu’s contract accordingly fell to be set aside.
[31] In their heads of argument counsel for the SANDF had submitted that departures from the
Policy were permissible provided Mr Xulu’s situation was fairly considered in the exercise of the
SANDF’s discretion whether to renew it.
[32] This argument was untenable in the light of the gross departures from the Policy outlined in
paragraphs 26 and 27.
Para 38 + para 43 – The decision not to renew Xulu’s employment contract was administrative
action.
[45] The final question is whether the exercise of the power in this case, by way of the decision
not to renew Mr Xulu’s contract, had direct, external legal effect.
Para 46 – This decision therefore attracted the application of s 6 of PAJA.
Para 47 – The full court’s avoidance to determine if this decision was AA was incorrect in
principle and must be discouraged.
Para 48 – The role of the principle of legality is to provide control over the exercises of public
power that do not constitute AA.
Para 50 – Apparently there may be a species of judicial review that falls under neither PAJA nor
the principle of legality, but concerns cases brought on the basis of unconscionable state conduct
that is in breach of constitutional principles of reliance, accountability and rationality.
Para 50 –
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1. Is the decision AA? If not

2. Proceed under the principle of legality.
The rationality requirement under legality is narrow, and not the same as the one applied in a
review under s 6(2)(f)(ii) of PAJA.
Para 51 –
From a procedural perspective the decision-making process in defiance of the SANDF’s own
policy was unfair.
From a substantive perspective it was not a reasonable decision in the sense of one that a
reasonable decision-maker could make in the circumstances.
It was based solely on the two old convictions without any investigation of the
circumstances in which they had occurred, their relative inconsequentiality and
the fact that equally senior officers to Major General Nkabinde had not in the past
thought them an obstacle to the extension of Mr Xulu’s contract.
In the decision-making process the strong recommendation by Lieutenant Colonel
Oss was disregarded. So was Mr Xulu’s record of advancement during the
previous five years and the successful completion of a course that could lead to
his promotion to non-commissioned officer. This was a classic case of irrelevant,
or only marginally relevant, considerations being taken into account and all the
relevant considerations being discounted or ignored completely.
[52] It is unnecessary to go further and consider any other possible grounds of review in terms of
s 6(2) of PAJA. Those set out above suffice for the decision not to renew Mr Xulu’s contract to
be set aside. The order of the full court was therefore correct although for different reasons.
Appeal dismissed.