ADMINISTRATIVE LAW 2

JUDICIAL REVIEW ( GROUNDS FOR) CONT.

4. ABUSE OF DISCRETION
• An abuse of discretion is a wrongful exercise of the discretion conferred because it is
exercise of a discretion for a power not intended. It may be another species of ultra vires.
Abuse of discretion by a repository of power has nothing to do with the motive of such
exercise, that is even where a public functionary has no mala fide or ulterior motives if he
acts outside the confines and prescriptions of the law he will be said to be abusing his
discretion.
• Abuse of discretion may manifest itself in a number of ways which include
a) Irrelevant considerations- a decision maker who takes into consideration facts which are
immaterial to the facts in issue is said to have abused his discretion. E.g. if the admissions
committee of NUL in considering an application into Master of laws takes into account the fact
that the applicant during his days as an undergraduate was very influential and influenced other
students to go on strike and consequently denied him admission on that ground, that is an abuse
of discretion manifesting itself in irrelevant consideration. See case of Bangtoo Brothers V
National Transport Commission 1973 (4) SA 667 (N) and case of Padfield V Minister of
Agriculture (1968) AC 514
Cont.
b) Fettering Discretion- to fetter oneself means to restrain or to hold oneself
into captivity. So a public functionary who is given power to act who refuses to
act is fettering himself because the law expects him to act. Fettering discretion
may usually occur in two broad sets of circumstances: firstly, where one
contracts away one’s statutory powers; and secondly, when one resolves to
apply general policy blindly. A repository of power contracts away his powers
where he undertakes to treat a member of the public in a particular manner
contrary to the law and he applies policy blindly where he does not apply his
mind to the peculiar facts of the case. He may consequently abdicate his powers
or be dictated upon. In the case of dictation a repository of power allows
himself to function as a rubber stamp by endorsing a decision which he never
applied his mind to. See case of Hofmayr V Minister of Justice and ANOR. 1992
(3) SA 108 (C) at 117F and case of Fellner V Minister of Interior 1954(4) SA 523
Cont.
c) Improper purpose- a law is intended to serve a particular purpose or to cure a particular social ailment.
A repository of power who uses a law for a purpose for which it was not intended is abusing his discretion
and such can be corrected by invoking judicial review. See case of Rikhoto V East Rand Administration
1983 (4) SA 278

d) Unreasonableness- unreasonableness means exactly what it says. An unreasonable decision is a

decision which does not accord with decisions of an average person of a standing of that decision maker
in a particular community that is, a reasonable act or decision of a person within the city of Maseru will
not be the same as that of a person of Hlokoa-le-mafi in Mokhotlong. So reasonableness or otherwise of
a decision will vary from community to community. So where a public functionary has made a decision
which is unreasonable such unreasonableness can be corrected by invoking judicial review. E.g. the World
Health Organization has informed the world that Covid-19 is here to stay so basically everyone has to find
ways of living with it. If the NUL council makes a decision that the best way of dealing with Covid is to
completely shutdown the university for the next 10 years such a decision would be unreasonable. See
case of CCSU V Minister for The Public Service (1984) 3 ALL ER 935 (1985) AC 374. A seminal case for the
determination of unreasonableness Associated Provincial Picture Houses Ltd V Wednesbury
Corporation (1948) KB 223, it is referred to as the Wednesbury test.
5. ERRORS OF LAW AND FACT
An error of fact is sometimes referred to as the no evidence rule that is, where
a decision reached by a public functionary is not based on the facts presented
before him e.g. where the evidence in a criminal case shows that the accused
killed the deceased in cold blood but the presiding officer finds the accused
guilty of assault to cause grievous bodily harm. On the other hand, an error of
law is committed where a decision maker misinterprets or misconstrues the
law. Both errors are correctable in invocation of judicial review.
6. FAILURE TO GIVE REASONS
• 6. under the common law there is no duty to provide reasons for a
decision, but the dictates of modern and good administration will
demand that a decision maker should make an informed decision
which can only be arrived at by providing the person affected by such
decision with a basis of a decision by laying down the reasons behind
such a decision. In modern administrative law failure to give reasons
has become a basis for setting aside a decision. See case of Breen V
Amalgamated Engineers Union (1971) 1 ALL ER 1148 and case of
Mensah V Adjudicator (TSC) et al C of A (CIV) N.o 37/2005
(unreported) and also case of Ntebaleng Masoetsa V Ministry of
Tourism and Others (CIV/APN/243/2007)
7. UNCONSTITUTIONALITY
• where a repository of power makes a decision which is against the
constitution such decision can be challenged and set aside on the
basis of unconstitutionality by invoking judicial review.