CHAPTER 3

JUDICIAL REVIEW
LEARNING UNIT 3
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Learning outcomes:
 Distinguish between appeals and reviews focusing on the analyses made by the courts

 Discuss the different types of appeals

 Evaluate the different review process taking into account the applicable legislation where necessary

 Differentiate between the review of administrative action before & after the Constitution, 1996

 Evaluate the relationships between the PAJA, section 33, special statutory review, the principle of legality
and the common law

 Differentiate between public and private powers and functions

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Appeal & Review:

 Both these are ways of reconsidering a decision

 Based on dissatisfaction with the results

 Appeal & Review performs different functions

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Appeal:
 Appropriate if believed that the decision-maker came to a wrong conclusion on the facts or the
law

 It is concerned with the merits of the case

 On appeal – the 2nd decision maker is entitled to declare the 1st decision right or wrong

Review:
 Not concerned with the merits of the decision

 But whether it was arrived at in an acceptable fashion

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In Rustenburg Platinum Mines (Limited) vs Commission for Conciliation, Mediation & Arbitration:
 The SCA indicated that, ‘[t]he focus is on the process, and on the way in which the decision-maker
came to the challenged conclusion’

 The question in this process in NOT whether the decision was right or wrong

 Review court – looks at issues such as the following:

 Impartiality of the decision maker
 The admissibility of the evidence taken into account
 Decision may be set aside on review
 The question on review is not ‘whether the record reveals relevant considerations that are capable
of justifying the outcome. That is the territory of appeal, when the question is whether the decision
was correct.
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 The distinction between appeal and review is one of the fundamentals of SA administrative
law
 In general and judicial review in particular

 In Chief Constable of the North Wales Police vs Evans – the English Court held that:
‘Judicial review is concerned, not with the decision, but with the decision-making
process…”
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Types of appeal in South African Law:

 Appeals from lower courts of law to higher courts of law

 Administrative appeals (Falls more on the administrative law side)

 These are both important remedies as they are a type of external check on the administration
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Types of Review in South African Law:

 Review of the proceedings of inferior courts

 Automatic review

 Judicial review in the constitutional sense

 Judicial review in the administrative law sense

 Special statutory review

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1. Review of the proceedings of the lower courts:

 High Courts may be requested to review the decisions of the lower courts

 Magistrates courts
 Small claims courts

 Sec 24 of the Supreme Court Act, 59 of 1959 – sets out the grounds of such review (as follows):

 Absence of jurisdiction
 Bias or corruption on the part of the presiding officer
 Gross irregularity in the proceedings
 Admission of inadmissible evidence
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2. Automatic review:
 Judges automatically reviewing the magistrates decisions

 Review not initiated by an aggrieved individual – but by virtue of statutory trigger

 See s302 of the Criminal Procedure Act 51 of 1977:

 It provides review by judges of certain sentences imposed by magistrates

 See s19(3) of the Extension of Security of Tenure Act 62 of 1997:

 Provides for automatic review of orders of eviction granted in the magistrates courts
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3. Judicial review in the constitutional sense:

 Constitutional law –
 Power of the court to review “any” type of legislation (original or delegated)
 Power to review state conduct that infringes on the right in the Bill of Rights
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4. Judicial review in the administrative law sense:

 Powers of the courts to scrutinise and set aside administrative decisions or rules

 This is done on certain grounds of review

 Pre-democratic era – this was an inherent power of the Supreme Court (governed by common law)

 Today – this type of review is regulated by s33 of the Constitution & directly by PAJA

 Where PAJA is not of application for whatever reason, this type of review is governed by:

 Principles of the Constitution (section 1(c) – where public powers are concerned
 By common law in the case of private powers
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5. Special Statutory Review:

 Courts have the statutory review powers (conferred by the legislature)

 It differs from ‘ordinary’ judiciary review in the admin law sense

 It is sometimes a wider power than ordinary review, and thus more akin to an appeal
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Review of administrative action before and after the Constitution, 1996

 Pre-democratic era – supervision of administrative decision making took place largely in terms of
the common law

 In that era – courts inherent justification for interfering in administrative decisions was the ‘ultra
vires doctrine’

 Parliamentary sovereignty
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After 1994:
 New constitutional dispensation

 Section 33 of the Constitution

 PAJA, 2000 – had the effect of adding new kinds of administrative law review to those available in
the past
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Relationship between – PAJA, s33, special statutory review, principle of legality & common law:

PAJA & Section 33:

 PAJA was enacted to give effect to section 33 of the Constitution, 1996

 PAJA provides the most immediate justification for judicial review

 It draws its own legitimacy from the constitutional mandate in section 33

 PAJA does not repeal or amend section 33 of the Constitution – instead, it gives effect to it
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 In Bato Star vs Minister of Environmental Affairs, O’Regan J confirmed that ‘[t]he cause of action
for the judicial review of administrative action now ordinarily arises from the PAJA, not from the
common law as in the past. She summed up the post PAJA position as follows:

“The Courts power to review administrative action no longer flows directly from the common
law but from PAJA and the Constitution itself.
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 Interestingly – O’Regan J went further to say “The grundnorm of administrative law is now to be
found in the first place not in the doctrine of ultra vires, nor in the doctrine of parliamentary
sovereignty, nor in the common law itself, but in the principles of our Constitution…”
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 The common law informs the provisions of PAJA and the Constitution and derives its force from
the latter.

The Principle of Legality:

 Non-administrative action – is catered for by the Constitution in general (more particularly, by the
broad principle of legality
 The Concourt described the principle of legality as an aspect of the rule of law
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The principle of legality (cont…)

 In Fedsure Life Assurance Ltd vs Greater Johannesburg Transitional Metropolitan Council:

The court identified the principle of legality and described it as an aspect of the rule of law. Here
the principle was held to imply that a body exercising public power – in this case, a municipality
making original legislation in the form of budgetary resolutions – had to act within the powers
lawfully conferred on it.
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 In President of the Republic of South Africa vs South African Rugby Football Union, it was held
that the principle required the holder of public power to act in good faith and not to misconstrue
his or her powers.
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END OF LEARNING UNIT 3