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1 ADMINISTRATIVE ACTION THE CONSTITUTION AND THE PROMOTION OF

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1 ADMINISTRATIVE ACTION THE CONSTITUTION AND THE PROMOTION OF

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									ADMINISTRATIVE

ACTION:

1 THE CONSTITUTION

AND

THE

PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000 Clive Plasket BA, LLB, LLM (Natal) Associate Professor, Rhodes University, Grahamstown Attorney

A paper presented to a Legal Resources Centre seminar on the Promotion of Administrative Justice Act 3 of 2000 in Johannesburg on 23 October 2001

[A] INTRODUCTION

1. In Premier, Mpumalanga v Executive Committee, Association of State Aided Schools, Eastern Transvaal 1 O’ Regan J spoke of the interaction between the affirmative steps needed to achieve transformation, on the one hand, and the requirements of procedural fairness, on the other. She said:2 ‘ This case highlights the interaction between two constitutional

imperatives, both indispensable in this period of transition. The first is the need to eradicate patterns of racial discrimination and to address the consequences of past discrimination which persist in our society, and the second is the obligation of procedural fairness imposed upon the government. Both principles are based on fairness, the first on fairness of goals, or substantive and remedial fairness, and the second on fairness in action, or procedural fairness. A characteristic of our transition has been the common understanding that both need to be honoured.’

2. It is in blending these two requirements for the fulfillment of the public interest that administrative law plays an important role: on the one hand, governmental
1 2

1999 (2) SA 91 (CC). At para 1.

2 policy must be capable of effective implementation but, on the other, that implementation cannot be effected at any price and in any manner that may take the whim of the administrator concerned. Administrative law serves both to empower administrative officials so that they can implement policies and programs and to limit the exercise of power by officials by requiring all administrative action to meet certain minimum requirements of legality, reasonableness and fairness.3

[B] THE CONSTITUTION IN GENERAL

3.The founding values of the Constitution that encapsulate the essential features of the South African state, are set out in s1. This section provides: ‘ The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the

advancement of human rights and freedoms. (b) (c) (d) Non-racialism and non-sexism. Supremacy of the constitution and the rule of law. Universal adult suffrage, a national common voters roll, elections to and ensure a multi-party system of democratic and

regular

government, openness.’

accountability,

responsiveness

4. From these values a number of important provisions of the Constitution flow so as to give it a capacity to control the exercise of all public power. In President of

Baxter Administrative Law Cape Town, Juta and Co: 1984, 2 (hereafter referred to as Baxter) defines what he terms general administrative law as ‘ general principles of law which regulate the the organization of administrative institutions and the fairness and efficacy of the administrative process, govern the validity of and liability for administrative action and inaction, and govern the administrative and judicial remedies relating to such action or inaction’ .

3

3 the Republic of South Africa v South African Rugby Football Union4 the Constitutional Court set these out as follows:5 ‘ The constitutional goal is supported by a range of provisions in the Constitution. First, in the Bill of Rights there is the right of access to information and the right to just administrative action. Both these

provisions require national legislation to be enacted by 3 February 2000 to give effect to these rights. Pending the enactment of that legislation, the provisions of the interim Constitution apply. Secondly, all the provisions of the Bill of Rights are binding upon the Executive and all organs of State. The Bill of Rights, therefore, imposes considerable substantive obligations upon the administration. Thirdly, chap 10 of the Constitution, entitled

“ Public Administration” sets out the values and principles that must , govern public administration and states that these principles apply to administration in every sphere of government, organs of State and public enterprises. This chapter also establishes a Public Service Commission to promote the values of public administration. Fourthly chap 9 of the Constitution establishes the office of the Public Protector, whose primary task is to investigate and report on conduct in the public administration which is alleged to be improper. Fifthly, the Constitution establishes the office of the Auditor-General whose responsibility is to audit and report on the financial affairs of national and provincial State departments and administrations as well as municipalities.’

5. Of prime importance for present purposes is the fact that the Constitution is based on the founding value of constitutional supremacy and the rule of law. This value is directly enforceable. The Constitutional Court has held that the rule of law means that: no body or person may exercise public power or perform

4 5

2000 (1) SA 1 (CC). At para 134.

4 public functions unless the authority to do so has been conferred by law;6 that when such functionaries exercise power or perform functions they are required to do so in good faith and they may not misconstrue their powers;7 that they are required to exercise powers rationally;8 that, to protect fundamental rights, laws should be ‘ pre-announced, general, durable and reasonably precise rules administered by regular courts or similar independent tribunals according to fair procedures’9 and the rules must be stated in a ‘ ; clear and accessible manner’10 .

6. It is no accident that s1(c) forms part of the Constitution. It gives expression to the broader value that underpins every constitutional state – that every exercise of public power must be capable of rational justification. This idea was eloquently expressed by Ackermann J in S v Makwanyane11 albeit in the context of the constitutionality of the death penalty and against the backdrop of another founding value, that of equality:12 ‘ reaction to our past, the concept and values of the constitutional State, In of the “ regstaat” and the constitutional right to equality before the law are , deeply foundational to the creation of the “ new order” referred to in the preamble. The detailed enumeration and description in s33(1) of the

criteria which must be met before the Legislature can limit a right entrenched in chap 3 of the Constitution emphasise the importance, in our new constitutional State, of reason and justification when rights are sought to be curtailed. We have moved from a past characterized by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional State where State action must be such that it is
6

Fedsure Life Assurance Limited v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC), para 58. 7 President of the Republic of South Africa v South African Rugby Football Union, supra, para 148. 8 Pharmaceutical Manufacturers Association of South Africa; in re: Ex Parte Application of the President of the Republic of South Africa 2000 (2) SA 674 (CC), paras 89 and 90. 9 De Lange v Smuts NO 1998 (7) BCLR 779 (CC), para 46, quoting the formulation of the rule of law of Mathews Freedom, State Security and the Rule of Law Cape Town, Juta and Co: 1986, 20. 10 Dawood v Minister of Home Affairs 2000 (8) BCLR 837 (CC), para 47. 11 1995 (3) SA 391 (CC). 12 At para 156.

5 capable of being analysed and justified rationally. The idea of the constitutional State presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules which are inherently

arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution. Arbitrariness must also inevitably by its very nature, lead to the unequal treatment of persons. Arbitrary action or decision-making is incapable of providing a rational explanation as to why similarly placed persons are treated in a substantially different way. Without such a rational justifying mechanism, unequal treatment must follow.’

7. The founding values expressed in s1(d), and particularly

accountability,

responsiveness and openness, are also of prime importance for purposes of constitutional control of public power. This has been articulated by Froneman DJP in Carephone (Pty) Ltd v Marcus NO:13 ‘ [34] The particular conception of the State and the democratic system of

government as expressed in the Constitution determines the power to review administrative action and the extent thereof (cf Craig Administrative Law 3ed at 3-40). Of importance in this regard, for present purposes, is the constitutional separation of the executive, legislative and judicial authority of the State administration, as well as the foundational values of accountability, responsiveness and openness in a democratic system of government (s1(d) of the Constitution). The former provides legitimacy for the judicial review of administrative action (but nor for judicial exercise of executive or administrative authority), whilst the latter provides the broad conceptual framework within which the executive and public administration must do its work and be assessed on review.
13

1999 (3) SA 304 (LAC), paras 34 and 35.

[35]

When

the

6 Constitution requires administrative action to be

justifiable in relation to the reasons given for it, it thus seeks to give expression to the fundamental values of accountability, responsiveness and openness. It does not purport to give courts the power to perform the administrative function themselves, which would be the effect if justifiability in the review process is equated to justness or correctness.’

[C] ADMINISTRATIVE JUSTICE

8. Writing in 1989, the present President of the Constitutional Court, Justice Arthur Chaskalson, said of administrative law that it was the ‘ interface between the bureaucratic state and its subjects. The day to day lives of ordinary people are profoundly affected by the way those who hold power of their lives exercise that power. Important steps towards the creation of a just society can be taken by opening up the administrative process and developing an equitable system of administrative law’14 .

9. The first important steps towards creating such a system of administrative law were taken when the interim Constitution15 introduced a fundamental right to what it termed ‘ administrative justice’16 The final Constitution contained a similar . fundamental right to what it termed ‘ just administrative action’ Section 33 . provides:
‘ The Past Ten Years: A Balance Sheet and Some Indicators for the Future’(1989) 5 SAJHR, 293, 298 - 299. At the time that this article was written administrative law functioned in a very different context when compared with the present constitutional dispensation. This point was made by Professor Dean ‘ Our Administrative Law: A Dismal Science?’(1986) 2 SAJHR 164, 164: ’ Notwithstanding a blossoming of interest in the subject amongst lawyers, administrative law remains a somewhat depressing area of South African law. It has developed within a system of government which concentrates enormous powers in the hands of the executive and the state administration and in which law has been used not to check or structure those powers, but rather to facilitate their exercise by giving those in whom they are vested as much freedom as possible to exercise them in the way they see best. In this process the South African courts have at times appeared to be all too willing partners displaying what virtually amounts to a phobia of any judicial intervention in the exercise of powers by administrative agencies.’ 15 Constitution of the Republic of South Africa 200 of 1993. 16 See s24.
14

7 ‘ Everyone has the right to administrative action that is lawful, (1) reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must – (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.’

10. In the South African Rugby Football Union case, Chaskalson P held that the ‘ principal function of s33 is to regulate conduct of the public administration and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common-law principles developed over decades’17 .

11.In Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government18 Froneman J held: ‘ Mention has already been made that the Constitution provides that the courts have a policing role to ensure that public power is exercised in accordance with the principle of legality. It also declares ours to be a democratic state (section 1). One of the foundations of democracy is that those who are chosen to rule must be accountable to those they govern. The Constitution recognizes that as a founding value of our democracy
17

18

Supra, para 136. 2000 (12) BCLR 1322 (E), 1328H-1329B. See too Carephone (Pty) Ltd v Marcus NO, supra, para 19 in which Froneman DJP stated that the purpose of the administrative justice section of the Bill of Rights ‘ to extend the values of accountability, responsiveness and openness to is institutions of public power which might not previously have been subject to those constraints’ .

8 (section 1(d)). It also recognizes that modern societies need to be run by persons other than those directly elected by the people. Those in the public administration must accordingly also be subject to the foundational values of democracy, otherwise the promise of democracy may become an illusion. So the Constitution states explicitly that public administration must be governed by the democratic values and principles of the Constitution, and states specifically that public administration must accountable (section 195, particularly section 195(1)(f)). The fundamental importance of accountable public power is emphasized in the Bill of Rights chapter of the Constitution by providing that everyone has the right to administrative action that is lawful, reasonable and fair (section 33). And the courts are the final instruments to ensure the accountability of the exercise of public power (sections 34 and 165). In this way the courts become an indispensable instrument of democracy as far as the public administration of the country is concerned … ’

12. From the above it will be evident that the Constitution is premised on what Professor Corder refers to as a ‘ rights-based conception of public law’that seeks, as its main aim, to prevent abuse of power. For administrative law, he argues that this means the following:19 ‘ The core values of this approach to democracy and the functioning of the state are openness of action, participation in decision-making, justification for decisions made, and accountability for administrative action. The importance of the constitutional requirements of lawfulness, procedural fairness, reason-giving and justification for administrative action to such a conception of democracy is self evident. So the particular form of

democratic framework within which we now operate is explicit and
‘ Administrative Justice: A Cornerstone of South Africa’ Democracy’(1998) 14 SAJHR 38, 41. s See too van Wyk ‘ Administrative Justice in Bernstein v Bester and Nel v Le Roux’(1997) 13 SAJHR 249, 251. See further, Henderson ‘ The Curative Powers of the Constitution: Constitutionality and the Ultra Vires Doctrine in the Justification and Explanation of the Judicial Review of Administrative Action’(1998) 115 SALJ 346.
19

9 mandatory, and the principles of administrative law must be revised and developed or created to give expression to such a concept.’

13. In terms of s33(3) of the Constitution, the rights to lawful, reasonable and procedurally fair administrative action and to reasons for adverse administrative action are to be given effect to by national legislation. That legislation has now been passed. It is the Promotion of Administrative Justice Act 3 of 2000. It states in its preamble that its objects are to ‘ promote an efficient administration and good governance’and to ‘ create a culture of accountability, openness and transparency in the public administration or in the exercise of a public power or the performance of a public function, by giving effect to the right to just administrative action’ .

14. The Act provides for certain minimum requirements of procedural fairness in s3. Section 3(1) states that when administrative action ‘ materially and adversely affects the rights or legitimate expectations of any person’ that administrative action must, in order to be valid, be procedurally fair. While the Act

acknowledges that what is fair depends on the circumstances of each case, s3(2)(b) provides that the following are the minimum requirements of procedural fairness: ‘ (a) adequate notice of the nature and purpose of the proposed administrative action; (b) a reasonable opportunity to make representations; (c) a clear statement of the administrative action; (d) adequate notice of any right of review or internal appeal, where applicable; and (e) adequate notice of the right to request reasons in terms of section 5.’

15. In certain instances the above minimum requirements may be insufficient: procedural fairness may demand more. For this reason, administrators are

10 granted discretion to allow a person to be assisted or legally represented, in serious or complex cases, to ‘ present and dispute information and arguments’ and to appear in person before the administrator concerned.20

16. Section 5 gives effect to the fundamental right to reasons for administrative action that adversely affects a person. This section provides, in essence, for a procedure for requesting and obtaining reasons. For present purposes s5(3) is of some importance. It states that if ‘ administrator fails to furnish adequate an reasons for an administrative action, it must, subject to sub-section (4) and in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the administrative action was taken without good reason’21 .

17. Section 6 of the Act codifies the grounds for judicially reviewing administrative action. Section 6(1) provides that any person ‘ may institute proceedings in a court … for the judicial review of an administrative action’ . Section 6(2) provides the grounds for doing so. They fall, essentially, into the three broad categories mentioned by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service22 namely ‘ illegality’ ‘ , irrationality’ and ‘ procedural impropriety’ .

18. So, for instance, an administrative act may be set aside if the administrator in question was not authorized by the empowering provision to perform that act,23 if he or she acted under an unauthorized delegation of power,24 if ‘ mandatory and a material procedure or condition prescribed by an empowering provision was not
Section 3(3). Note that other requirements – essentially notice and comment procedures for public enquiries – are required for purposes of complying with the requirements of procedural fairness in respect of administrative action that affects the public generally. In other words, s4 applies when an administrator wants to make subordinate legislation. 21 For comment on what is meant by the word ‘ reasons’ see Plasket and Khoza ‘ , The Fundamental Right to Reasons for Administrative Action’(2001) 22 ILJ 52. See too Nomala v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government 2001 (8) BCLR 844 (E). 22 [1984] 3 All ER 935 (HL), 950h-i. 23 Section 6(2)(a)(i). 24 Section 6(2)(a)(ii).
20

11 complied with’25 if the administrative action was ‘ , materially influenced by an error of law’26 was taken for ‘ reason not authorized by the empowering , a
28 provision’27 for an ‘ , ulterior purpose or motive’ or ‘ because of the unauthorized

or unwarranted dictates of another person or body’29 .

19. Administrative action may be set aside for want of procedural fairness if the administrator who took the action concerned ‘ was biased or reasonably
30 suspected of bias’ or if the action was procedurally unfair (as defined in s3 and

s4).31

20. Administrative action may be set aside for want of reasonableness if ‘ irrelevant considerations were taken into account or relevant considerations were not considered’32 if the action was taken in bad faith33 or was taken , arbitrarily or capriciously,34 if the administrative action was not rationally connected to either the purpose for which it was taken, the purpose of the empowering provision, the information before the decision-maker or the reasons given for it by the decision-maker35 or if ‘ the exercise of the power or the performance of the function authorized 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’36 .

25

Section 6(2)(b). Section 6(2)(d). 27 Section 6(2)(e)(i). 28 Section 6(2)(e)(ii). 29 Section 6(2)(e)(iv). 30 Section 6(2)(a)(iii). 31 Section 6(2)(c). 32 Section 6(2)(e)(iii). 33 Section 6(2)(e)(v). 34 Section 6(2)(e)(vi). 35 Section 6(2)(f)(ii). 36 Section 6(2)(h).
26

12 21. In addition to the above, s6(2)(f) makes the failure to take a decision (in circumstances where such a duty exists) a ground for review and, finally, s6(2)(i) provides that administrative action that is ‘ otherwise unconstitutional or unlawful’ can be set aside on review.

22. The Act places two significant hurdles in the way of members of the public who wish to review administrative action. In the first place, s7(1) provides that proceedings for judicial review must be instituted within 180 days of the exhaustion of any internal remedies created by a particular statute, or where no such internal remedies exist, of the date on which the affected person was either informed of the adverse administrative action, became aware of it and of the reasons for it or ‘ might reasonably have been expected to have become aware of the action and the reasons’ This period of 180 days may, in terms of s9(1)(b) . and s9(2) be extended for a fixed period, either by agreement between the parties or by a court on application by the party concerned and in which the court is satisfied that the interests of justice require such an extension to be granted.

23. Section 7(2) places an obligation on a party wishing to judicially review administrative action to exhaust any internal remedies at his or her disposal before approaching a court. A court may exempt such a person from this duty if he or she brings an application in which he or she is able to establish exceptional circumstances and that the interests of justice require such an exemption.

24. The above sections may well be unconstitutional infringements of the rights to just administrative action and of access to court.

25. Section 8(1) of the Act provides that a court that has judicially reviewed administrative action ‘ may grant any order that is just and equitable’ Such an . order may include a range of what may be termed the usual remedies. These include orders to compel administrators to give reasons or to act in a particular

13 manner, to prohibit administrators from acting in a particular manner, the setting aside of administrative action, the declaring of the rights of parties in relation to administrative action, the granting of temporary interdicts or other interim relief and the making of orders of costs.

[D] SOME ISSUES OF INTEREST

26. It is against the legal provisions that have been set out above that the actions and decisions of administrative functionaries will be tested. Unlike the system in existence prior to 27 April 1994, the new administrative law is not predominantly a creature of the common law: its matrix and lodestar is the Constitution and many of its important contours are contained in the Promotion of Administrative Justice Act. The common law still plays a role in this system, albeit a complementary, and far from dominant, role: it will fill in the gaps left by the Constitution and the Act and will be used to give meaning to many of the concepts and principles contained in both.

27.

It is open to doubt whether Parliament, in passing the Act, has in fact

complied with the Constitution’ direction to it to give effect to the rights to lawful, s reasonable and procedurally fair administrative action.

27.1 It places unnecessary and, in all probability, troublesome, qualifications -borrowed from German administrative law -- on the type of administrative action that is subject to the Act by requiring that administrative action, in order to qualify as such must adversely affect rights and must have a ‘ direct, external legal effect’37 ;

37

Section 1(i). One would have imagined that the failed importation of the German concept of the negation of the essential content of a right, in s33(1) of the interim Constitution, would have served as an indication that caution should prevail in the importation of other German concepts in a field of law that has developed very differently to South African administrative law.

14 27.2 the definition of administrative action contained in s1(i) of the Act verges on the absurd: it defines certain categories of administrative action – such as decisions taken under the Promotion of Access to Information Act 2 of 2000, for instance -- to be something other than administrative action;

27.3 it purports to give the Minister of Justice the power to exempt administrators from certain of the requirements of the Act;38

27.4 it omits various well known and essential grounds of review such as vagueness and uncertainty, proportionality, as an aspect of review for reasonableness, and fettering of discretion by way of rigid adherence to a fixed policy, although it will still be possible to argue that these grounds of review must either be read into other grounds or are contemplated by the catch-all ground of review contained in s6(2)(i), namely that the administrative action concerned is ‘ otherwise unlawful or unconstitutional’ ;

27.4 by tying the right to a hearing to the doctrine of legitimate expectation, the Act may have excluded the fairness doctrine, although it may be possible to argue that the fairness doctrine is subsumed under the doctrine of legitimate expectation, as Pickering J did in Gemi v Minister of Justice, Transkei39 or that the fairness doctrine can be applied through the provisions of s6(2)(i);40

38 39

Section 1993 (2) SA 276 (Tk). Whether he was, strictly speaking, correct is open to doubt if one has regard to the development of the two doctrines in English law. See in this regard, Forsyth ‘ Audi Alteram Partem Since Administrator, Transvaal v Traub’in Kahn (ed) The Quest for Justice: Essays in Honour of Michael McGregor Corbett, Chief Justice of the Supreme Court of South Africa Cape Town, Juta and Co: 1995, 189, 204-205 and footnote 93. It may be, however, that whatever their pedigrees in England, South African conditions and circumstances require a different approach along the lines taken by Pickering J and supported by Hlophe ‘ Legitimate Expectation and Natural Justice: English, Australian and South African Law’(1987) 104 SALJ 165 and Grogan ‘ When is the “ Expectation”of a Hearing “ Legitimate” (1990) 6 SAJHR 36. ’ 40 In Van Huysteen NO v Minister of Environmental Affairs and Tourism 1995 (8) BCLR 1191(C), Farlam J held that s24(b) of the interim Constitution entrenched the fairness doctrine. See too Jenkins v Government of the Republic of South Africa 1996 (8) BCLR 1059 (Tk).

15 27.5 by imposing a time limit within which applications for judicial review must be brought and by imposing a rigid requirement that internal remedies must be exhausted prior to proceedings for judicial review being brought, the legislature may well have unconstitutionally infringed the right of access to court and to just administrative action and may also be in breach of its duty to give effect to the rights contained in s33 of the Constitution.41

28. Despite these difficulties, which are, no doubt, going to arise in litigation under the Act sooner rather than later, there are other aspects of the Act that have advanced the cause of administrative justice in accordance with the values of the Constitution. Perhaps the most important of these are:

28.1 the extension of the right to procedurally fair administrative action to administrative action that affects the public generally.42 This provision extends the principle set out in South African Roads Board v Johannesburg City Council;43

28.2 the sweeping away of the rather artificial and (to be frank) absurd, line of cases that have held that ulterior motive is not a ground of review44 through the introduction of the grounds of review that the administrative action was

41

See Plasket ‘ Exhaustion of Internal Remedies and Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000’(2002) 119 SALJ forthcoming; see too Plasket ‘ The Promotion of Administrative Justice Act 3 of 2000 and Procedural Hurdles: the Constitutionality of the Time Limit for Initiating Judicial Review and the Duty to Exhaust Internal Remedies’ unpublished paper to be presented at the Law Teachers Conference in January 2002. 42 Section 4. This section, along with s10, has not been brought into operation yet. It is a provision that is pregnant with possibilities for extending the values of openness, accountability and responsiveness in the making of subordinate legislation. 43 1991 (4) SA 1 (A). See too Minister of Education and Training v Ndlovu 1993 (1) SA 89 (A). 44 See for instance LF Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C); Tsose v Minister of Justice 1951 (3) SA 10 (A). But see University of Cape Town v Ministers of Education and Culture (House of Assembly and House of Representatives) 1988 (3) SA 203 (C) and Highstead Entertainment (Pty) Ltd t/a ‘ Club’v Minister of Law and Order 1993 (2) the SACR 625 (C) for cases in which ulterior motive has been held to be a ground of review. See too Hoexter ‘ Administrative Justice and Dishonesty’(1994) 111 SALJ 700. It is unlikely that the former line of cases could have survived in the face of the requirements of s195(1) of the Constitution which places duties on administrators to perform their functions ethically.

16 45 taken ‘ a reason not authorised by the empowering provision’ and ‘ an for for ulterior purpose or motive’46 ;

28.3 the closure of the debate, such as it is, on whether bad faith is a ground of review: Wiechers had argued that bad faith was not a ground of review on its own and that its only relevance was in relation to whether a court would remit a decision that had been set aside or substitute its own decision for that of the administrator;47 Baxter had argued that bad faith has always been a ground of review, even if it is not relied on very often by the courts and even though, when bad faith is present, other grounds of review are invariably also present.48 Now s6(2)(e)(v) states that administrative action may be set aside if it was taken in bad faith;

28.4 the demise of the symptomatic unreasonableness test of Union Government (Minister of Mines and Industries) v Union Steel Corporation (South Africa) Ltd49 -- that unreasonableness on its own is not a ground of review and that in order to set aside administrative action on this basis, the unreasonableness complained of must be so gross that from it can be inferred the presence of some other ground of review.50 Unreasonableness is now recognized as a ground of review on its own.51

28.5 the introduction of a mechanism, contained in s5 of the Act, to enable those materially and adversely affected by administrative action to obtain reasons for such administrative action on request.

Section 6(2)(e)(i). Section 6(2)(e)(ii). 47 Administrative Law (2ed) Durban, Butterworths:1985, 254-257. 48 Baxter, 516-517. 49 1928 AD 220. 50 At 236-237. 51 Section 6(2)(h). See too the rational connection provisions of s6(2)(f)(ii).
46

45

17 29. Finally, it is important to bear in mind that the principles of administrative law, because of their constitutionalisation, operate in a very different context to their erstwhile common law equivalents. In concrete terms and apart from the different values that now guide the exercise of public power and influence the intensity of its control, the difference is evident in three particular areas, namely, in relation to the issue of justiciability, the rules of standing and the question of remedies for infringements of the right to just administrative action.

29.1 It is evident that the courts in South Africa have embraced a broad approach to justiciability, along the lines followed by the courts in Canada.52 Our courts consider every exercise of public power that infringes or threatens fundamental rights to be justiciable53 and do not ascribe to the English approach that holds that the exercise of certain types of powers, such as those relating to defence and foreign policy are inherently non-justiciable,54 or to the American political questions doctrine which is to much the same effect.55

29.2 While there have been cases in which the courts have shown a reluctance to engage with the extended standing provisions of s38 of the Constitution56 or have applied s38 erroneously,57 the idea of extended standing has increasingly been accepted and applied in accordance with the spirit, purport and objects of the Bill of Rights.58
52

53

See Operation Dismantle Inc v The Queen (1985) 18 DLR (4 ) 481 (SCC). See President of the Republic of South Africa v Hugo 1997 (6) BCLR 708 (CC); Mpehle v Government of the Republic of South Africa 1996 (7) BCLR 921 (Ck); De Lille v Speaker of the National Assembly 1998 (7) BCLR 916 (C). 54 See Chandler v Director of Public Prosecutions [1964] AC 763 (HL). 55 See Hogg Constitutional Law of Canada (3ed) (student edition) Scarborough, Ontario, Carswell: 1992, 804 (para 33.5). 56 See Maluleke v Member of the Executive Council, Health and Welfare, Northern Province 1999 (4) SA 467 (T). For comment on this case see Plasket ‘ Standing, Welfare Rights and Administrative Justice’(2000) 117 SALJ 647. 57 See Prior v Battle 1998 (8) BCLR 1013 (Tk). 58 See Ferreira v Levin NO 1996 (1) BCLR 1 (CC); Minister of Health and Welfare v Woodcarb (Pty) Ltd 1996 (3) SA 155 (N); Wildlife Society of Southern Africa v Minister of Environmental Affairs and Tourism of the Republic of South Africa 1996 (3) SA 1095 (Tk); McCarthy v

th

18 29.3 Finally, even though the superior courts have always enjoyed inherent jurisdiction, and hence have always had the power to fashion new remedies, the Constitution places an imperative obligation on them to provide appropriate relief that meets the twin requirements of justice and equity when they come across infringements of or threats to fundamental rights.59 In addition, s172(1) (a) places an obligation on courts to declare any law or conduct that is inconsistent with the Constitution to be invalid to the extent of the inconsistency.60 These provisions have freed the courts from the constraints of the sparingly used and conservatively applied version of the inherent jurisdiction of the common law and directed them to use their powers to strike decisively at constitutional infractions and to remedy them appropriately and creatively.61

Constantia property Owners’Association [1999] 4 All SA 1 (C); Nomala v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government 2001 (8) BCLR (E). Without doubt the two most important decisions in this respect are Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government 2000 (12) BCLR (E) and Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government v Ngxuza 2001 (10) BCLR 1039 (SCA). 59 See Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC); Hoffmann v South African Airways 2000 (11) BCLR 1211 (CC). 60 Section 172(1)(a) gives concrete expression to s2 of the Constitution which proclaims the Constitution to be the supreme law of the land and which states that law or conduct that is inconsistent with it is invalid to the extent of the inconsistency. 61 For two interesting examples of the creative use of this power see the judgments of Leach J in Mbanga v Member of the Executive Council for Welfare 2001 (8) BCLR 821 (E) and Mahambahlala v Member of the Executive Council for Welfare, Eastern Cape Provincial Government 2001 (9) BCLR 899 (E).


								
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