UNIT 7(1): INTRODUCTION TO THE CONCEPT OF JUDICIAL REVIEW OF

ADMINISTRATIVE ACTION

Kasumpa M. Kabalata
 What is Judicial Review?
 What is a public body for purpose of Judicial
Review
 Scope of Judicial Review
 Grounds for Judicial Review
 Protection of Public Bodies in Judicial Review
 Judicial review is a public remedy, by which an
individual can challenge the legality of
decisions, determinations, orders or even
omissions of persons or bodies performing
public functions.
 It is by judicial review that the Court (high
Court) can exercise its supervisory jurisdiction
over inferior bodies, tribunals, public bodies
and individuals performing public functions.
 Judicial review can also be described as a procedure
whereby, a court examines the exercise of a delegated
discretionary decision-making power, in order to
ensure that the power has been properly exercised for
its lawful purpose.
 The court can intervene where the person or body, which
has been given the power fails to act, when it is
required to or when it makes a decision which it ought
not to have made when acting properly within the
terms of the mandate given to them.
 Judicial review is an example of the functioning of the
doctrine of separation of powers.
 The philosophical foundation of Judicial Review has been
aptly stated by Scott Gordon and James Madison, Gordon
says:
 “In all government there is a perpetual intestine struggle,
open or secret, between authority and liberty and neither
of them can ever absolutely prevail in the contest. A great
sacrifice of liberty can never, and perhaps ought never, in
any constitution to become quite entire and uncontrollable
… it must be owned that liberty is the perfection of civil
society, but still authority must be acknowledged as
essential to its very existence”.
 James Madison said:
 “If men were angles, no government would be
necessary. If angels were to govern men, neither
external nor internal controls on government
would be necessary. In framing a government
which is to be administered by men, the great
difficulty is this: you must enable the government
to control the governed and in the next place
oblige it to control itself”.
 There has been some misconception as to what a
“public body” is, in Zambia and England where the
concept of judicial review was imported.
 Judicial review is only available to test decisions
made by public bodies.
 If judicial review is applied for, and the Court rules
or determines that the body whose decision is
being challenged is a private body, then the
remedy will lie in private law, not public law
proceedings.
 In Ludwig Sondashi vs. Godfrey Miyanda (sued
as National Secretary of the MMD (1995/1997)
ZR p.1, the appellant had been expelled from the
respondent political party and he sought a judicial
review and a declaration that he had been
wrongly expelled. The Trial Court found that the
wrong procedure had been adopted, as
respondent was a society dealing with private
matters. The application was dismissed.
 On appeal to the Supreme Court, the questions to be
considered was whether the tribunal against, which the
order was sought was one dealing with public law, the
Respondent being a political party and its concerns
being those of a private association, its tribunals
dealing with private, not public law, judicial review
could not lie against a political party.
 It was held that the Appellant was entitled to come to
court, but had adopted a wrong procedure as “the
proper course would have been to have issued a writ of
summons claiming a declaration and injunction, not by
way of application for judicial review”.
 Similarly, in Nkumbula vs Attorney-General (1987),
the United National Independence Party (UNIP), it
was held was a club and therefore a subject of
private law.
 The reason why public law disputes have been
subjected to the Order 53 procedure is that specific
protections have been incorporated into this order
for benefit of public authorities. It is a trite or
settled law that government is a privileged
litigant.
 In R v. City Panel on Takeovers and Mergers ex parte Datafin
Limited (1987) QB 815, City Panel had dismissed a complaint
by a bidder of acting in concert contrary to the rules on
takeovers. The bidders applied for judicial review. The Court
declined to grant the application on the basis that there
were no grounds for judicial review, but nevertheless,
rejected the claim made by the City Panel, that the Court
had no jurisdiction to consider the application.
 The City panel was subject to judicial review, despite its lack of
statutory or prerogative source of power because it was a body
exercising public functions parallel or analogous to those,
which could be or have been, in the absence of the panel,
exercised by a government department.
 Lloyd LJ. Stated that, for the most part, the source of power will
be decisive. Accordingly, if a body is set up under the statute
or by delegated legislation, then the source of the power
brings the body within the scope of the judicial review.
 However, Lloyd LJ, also recognized that in some cases the
matter would be unclear, where the situation existed, it was
necessary to look beyond the source of power and consider
the ‘nature of the power’ being exercised.
 In Lloyd’s view, if a body in question is exercising public law
functions, or if the exercise of its functions have public law
consequences, then that may be sufficient to bring the body
within the reach of judicial review.
 The above case should be contrasted with the case of
R v Disciplinary Committee of the Jockery Club ex
parte Age Khan (1993) WLR 909.
 The Age Khan sought judicial review of the
jockery club’s decision, to disqualify his winning
horse from a race for failing a dope test, and the
court ruled that it had no jurisdiction.
 The relationship between racehorse owners and
the club and the powers of the club, derived from
the agreement between the parties and was a
matter of private rather than public law.
 The same principle will be applied whenever a
matter is regulated by contract between two
private parties, as the matter is one of private law
and not public law.
 There is a fine distinction though, which has to be
drawn here. The regulation of a private school, for
example, has been held to be a matter of private
law whereas the regulation of City Technical
College, a non-fee paying publicly funded
institution, is a matter of public law.
 However, where a pupil attends a private school under a
publicly funded assisted places scheme, that school falls
within jurisdiction of judicial review in relation to a
school’s decision, in particular, the decision to expel a
pupil. See R v Governor of Haberdasher’s Asker’s
Hatcham College trust ex parte T.
 In determining whether or not the body whose decision is
being challenged on an application for judicial review is a
public body, as opposed to a private body, the court will
look at functions exercised by the body.
 The test is not whether or not the authority is
government body as opposed to a private
body. The court will look at the functions.
 Whether it is a body exercising powers parallel
or similar or analogous to those exercisable by
government bodies.
 In the case of Nyampala Safaries (Z) Limited
and Others v Zambia Wildlife Authority and
Others (SCZ No. 6 of 2004) the Supreme Court
of Zambia restated the following basic principles
underlying the process of judicial review:
 (a) The remedy of judicial review is concerned,
not with the merits of decision, but with the
decision-making process itself.
 (b) The purpose of judicial review is to ensure
that the individual is given fair treatment by the
authority to which he has been subjected to and
that it is not part of that purpose to substitute the
opinion of the judiciary or the individual judges
for that of the authority constituted by law to
decide the matter in question.
 (c) a decision of an inferior court or public authority may be
quashed (by an order of certiorari) where that court or authority
acted:
 (i) without jurisdiction; or
 (ii) exceeded its jurisdiction; or
 (iii) failed to comply with the rules that are applicable; or
 (iv) where there is an error of law on the face of the record;
or
 (v) the decision is unreasonable in the Wednesbury Sense,
namely that it was a decision which no person or body of
persons property directing itself on the relevant law and
acting reasonably, could, have reached.
 In Council of Civil Service Unions v Minister of
State for Civil Service (1981) AC 363, the House
of Lords, took the opportunity to offer a
rationalization of the grounds for judicial review
and ruled that the basis for judicial review could
be subsumed under three principal heads,
namely: Illegality, Irrationality, and
Procedural Impropriety.
 Other grounds might emerge.
 Lord Diplock elucidated the concepts as follows:
 (i) By ‘illegal’ as a ground for judicial review, I mean that the
decision maker must understand correctly that the law
regulates his decision making power and give effect to it.
 (ii) By ‘irrationality’ I mean what can now be succinctly
referred to as Wedbesbury unreasonableness.
 It applies to a decision, which is so outrageous in its defiance
of logic or of accepted moral standards that no sensible
person who has applied his mind to question to be decided
could have arrived at it.
 Whether the decision falls within this category is a question that
judges by their training and experience should be well equipped
to answer.
 (iii) Procedural Impropriety is a failure to observe
basic rules of natural justice or failure to act with
procedural fairness towards the person who will
be affected by the decision.
 This is because susceptibility to judicial review,
under this head covers also failure by an
administrative tribunal to observe rules that are
expressly laid in the legislative instrument by
which its jurisdiction is conferred, even though
such failure does not involve any denial of natural
justice.
 Further grounds may include:
 (i) Proportionality
 (ii) Abuse of Power – Ulterior motives or
irrelevant Consideration.
 Access to judicial review is not a matter of right.
 It is subject to the discretion of the court as Sir H.
Woolf observed, “if the leave stage was abolished,
the court will be deprived of the power to exercise
discretion”.
 The leave stage empowers the court to dispose
applications for judicial review summarily
without taking evidence or hearing submissions of
the body alleged to have acted unlawfully.
 The leave stage is meant to protect public bodies
from being harassed by applicants making ill-
founded challenges.
 Lord Scarman in the case of IVC v National
Federation of self Employed Small Business
Limited (1982) AC 617 at page 653 stated that
“Leave enables the court to prevent abuse of busy
bodies, by cranks and other mischief makers. I do
not see any other purpose served by the leave
requirements.”
 It is expected that at the leave stage, unmeritorious
applications will be weeded or thrown out.
 The application should contain a statement of the
relief sought and the grounds upon which it is
sought.
 The application should be accompanied by an
affidavit verifying the facts relied on.
 From these documents, a judge is expected to
ascertain whether the application has any merit.
 No leave for judicial review should be granted
unless the applicant can show that they have a
sufficient interest in the matter.
 Care should be taken in such a matter, so as not to
reject bonafide public interest litigation.
 The court faced with an application for leave for
judicial leave, should assess the litigant and
decide whether, he has a bonafide complaint. See
R v Secretary of State for Foreign Affairs ex parte
World Development Movement (1995) 1 All ER 611
 Leave will not usually be granted where the applicant
has not exhausted alternative remedies.
 As Lord Donaldson has stated in R v Epping and Harlow
General Commissioner ex parte Goldstraw (1993) 3 All
ER 257 at page 262 “expect in exceptional
circumstances, the judicial review jurisdiction will not
be exercised where other remedies are available and
they have not been used”.
 A judge faced with a situation, for example, where a right
to appeal is provided, has to weigh the circumstances
and exercise his discretion whether or not to grant
leave.
 The Sufficient Interest Test
 The court must not grant leave for an application for
judicial review unless it considers that the applicant has
sufficeint interest (otherwise expressed as “standing” or
“locus standing” in that matter, to which the
application relates.
 The justification for such a requirement lies in the need to
limit challenges to administrative decision making to
genuine cases of grievance and to avoid unnecessary
interference in the administrative process by people
whose objective are not authentic.
 The applicant may be an individual whose
personal rights and interests have been affected
by a decision, which affects the interests of
society as a whole.
 Alternatively, the application may be brought by
an interest or pressure group desiring to challenge
a decision, which affects the rights and interests
of members of that group or society at large.
 The manner in which the Sufficient Interest Test
is applied, see following cases:
 R v Inland Revenue Commissioners ex Parte national
Federation of Self-Employed and Small Business
 Schmidt v Secretary of State for Home Affairs
 Gouriet v Union of Post Office Workers (1948) 1 KB
223
 R v Secretary of State for Foreign and
Commonwealth Affairs ex Parte Rees – Mog (1985)
AC 370
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