Admin Law Notes Part 3

ADMIN LAW NOTES- NDZINGE-MAKHAMISA’S GROUP
PART 3
JUDICIAL REVIEW
Application of the general principles of judicial review is not straightforward.
The attitude of the courts towards judicial review has been far from
consistent, alternating between strict and liberal interpretations of the
principles of judicial review and when judicial review should be available,
resulting in some very fine distinctions and a degree of contradiction, which
makes the subject difficult to tackle.
The role of judicial review is as the legal control of the use of power by the
executive. The Court, when employing judicial review, is exercising its
supervisory jurisdiction as opposed to its appellate jurisdiction.
‘Judicial review is the means by which the Court exercises a supervisory
jurisdiction over inferior courts, tribunals and other public bodies (including
individuals charged with public law functions.)
‘Judicial review is the procedure whereby the High Court is able, in certain
cases to review the legality of decisions made by a wide variety of bodies
which affect the public, ranging from government ministers exercising
prerogative or statutory powers, to the actions of certain powerful self-
regulatory bodies’
Maripe B. Judicial Review and the Public / Private dichotomy: An appraisal of developing
trends; 4 UBLJ (2006) 23-53
Distinction between Judicial/Quasi-judicial/ Administrative action
A judicial decision is a decision made according to administrative policy. A
judge attempts to find what is the correct solution according to legal rules
and principles. An administrator attempts to find what is the most expedient
and desirable solution in the public interest. There will always be grey areas.
Nevertheless the mental exercises of judge and administrator are
fundamentally different. The judge’s approach is objective, guided by his
idea of the law. The administrator’s approach is empirical, guided merely by
expediency.
We can divide the principles applicable to judicial review under three

headings
a) The criteria and method the court will apply in deciding whether judicial
review is applicable
b) Grounds for review
c) Remedies that apply
Judicial Review is not concerned with the merits of a decision, ie whether it
is right or wrong(the facts), but rather whether the decision maker has kept
within the legal limits and followed the broad principles of fairness and
rationality. The Court is not seeking to replace the substantive decision but
rather whether the decision is legal and/or rational/ reasonable and abided
by the rules of natural justice.
The grounds of judicial review have classically been classified under three
heads. Illegality, Irrationality and Procedural Impropriety.
For one to be able to institute Judicial Review they must
a) The case must relate to one of the grounds for review, and it must not
be an appeal(question the merits)
b) Subject matter ( the subject of the review) must be a decision or a

refusal to make a decision made by a public authority exercising a
public function
c) It must be justiciable, i.e Relating to an administrative action, to which
one of the remedies for judicial review is sought, and should not relate
to matters of high policy as this would be an interference with the
powers of the executive.
d) The decision must alter rights/obligations of that person(s) which are

enforceable by or against him
e) Depriving a person of some benefit/advantage which they have

enjoyed; have a legitimate expectation they will continue to enjoy –
unless validly withdrawn
f) A party for judicial review must have standing before the courts, and
have sufficient interest in the matter.
g) In addition, there are instances where there is the statutory exclusion

of review This arises where the state seeks to balance two factors
a. The balance and control of legality of admin action; and
b. Efficiency of the modern state on the other
Locus Standi
- The right or capacity to bring an action or to appear in a court.
- For one to bring a matter before the court, one must have sufficient
(personal) interest in the subject matter of the application.
- The purpose of locus standi is to;
- Prevent abuse of court process by busy bodies
- To prevent parties dragging others to court when they have no right to seek
a particular relief.
Exclusion of Review (Ouster Clauses)
In some instances parliament uses statutory machinery designed to limit the
interference of the Courts in the interests of administrative efficiency by
inserting into the relevant statutory provisions sections designed to ‘oust’ the
supervisory jurisdiction of the courts.
Whilst the interpretation of any particular ouster clause will be a matter that
turns heavily on the text of that individual case, there is inevitably a tension
between the aim of preserving an element of judicial supervision of
executive/administrative action, on the one hand, and Parliament’s
ostensible desire to allocate final decision-making authority to executive
bodies or specialist tribunals, on the other.’
Traditionally, ouster clauses have 3 forms

1) Time limit clauses
2) Final Clauses
3) Should not be questioned in any court of law clauses
Where the Parliament has limited the availability of review, the Courts will
adopt a restrictive interpretation of the statutory words, employing the
presumption that Parliament did not intend, save in the most express manner
to exclude the jurisdiction of the court.
Time Limit Clauses
In an attempt to protect decisions from challenges which may impede or
otherwise affect their implementation, statute may provide that there should
be no challenge by way of judicial review other than within a specified period
of time.
Under Botswana law, this is in two instances
1. Rules of the High Court, Order 61 rule 8 subrule 8- Except with leave
of the Judge, on good cause shown, no application for review shall be
brought later than four months after handing down of the decision or
conclusion of the proceedings complained of
See Segwaba v. Botswana Defence Force 2010 BLR 92, which reiterates
that if the Order 61(8)(8) is not followed than an application for review shall
fail on that ground alone.
2. Specific clauses inserted in Statutes, usually 6 weeks. Designed to
oust the jurisdiction of the Court.
In Smith v. East Elloe Rural District Council, the statute provided that if the
decisions of the Council where not challenged within 6 weeks they shall not
be questioned in any Court of Law whatsoever. The applicant sought to
challenge the decision 6 years later, and the Court held that it could not be
challenged. Viscount Simmons explained that ‘ Although courts generally
have little sympathy for ouster clauses, the words in the statute were clear
and plain, and the Court should give them their proper meaning, and thus
the Court could not entertain the action.’
In R v. Secretary of State for the Environment, ex parte Ostler the Court
followed the same reasoning as in Smith and Lord Denning explained that ‘
the person aggrieved must come promptly, he must come within 6 weeks. If
he does so, the court can and will entertain his complaint. But if 6 weeks
expire without any application being made, the court cannot entertain it
afterwards. The reason being that , as soon as that time elapses, the
authority will take action. The public interest demand that they should be safe
in doing so.
Time ouster clauses seek to balance the interest of citizens, and the interest
of the public on one hand, to have conclusive action and finality in
administrative action.
The approach of the court to time limit ouster clauses may perhaps be
explained by the fact that time limitations protect the interest in the finality of
decisions (a usual justification for ouster clauses) whilst still allowing the
courts a supervisory role provided proceedings are brought within time. This
of course assumes that the relevant time limit does not create an undue
burden on the ability of a party to challenge government decisions. The usual
requirement that proceedings be brought ‘promptly, and in any event within
three months.’
Final Ouster Clauses and Shall not be Questioned in any Court of Law
Clauses
Parliament has on rare occasions inserted provisions which state that a
decision shall either be ‘final’ or ‘shall not be questioned in any court of law
whatsoever’ or both. The rationale being to keep the decision within the
realms of the particular decision maker and to prevent ‘excessive
intervention’ from the Courts.
The q.s is how have the courts interpreted these clauses, particularly with
respect to this supervisory jurisdiction.
R v. Medical Appeal Tribunal-in dealing with a ‘final clause’ Lord Denning
opined that ‘ I find it very settled law that the remedy by certiorari is never to
be taken away by any statute except by the most clear and explicit words.
The word ‘final’ is not enough. That only means ‘without appeal’. It does not
mean ‘without recourse to review…it is final on the facts but not final on the
law.’
The court further stated that ‘ The remedy of certiorari is not excluded by the
fact that the determination of the Tribunal is by statute made ‘final.’
Parliament only gives the impress of finality to the decisions of the tribunal
on the condition that they are reached in accordance with the law.’
Anisminic v. Foreign Compensation Commission-the statute stated that the
decision of the commission shall not be questioned in any court of law. The
Court held, in allowing the review that the decision of the Commisiion was a
nullity, and that it was a well established principle that a provision ousting the
jurisdiction of the Court must be construed strictly…undoubtedly such a
provision protects every decision which is not a nullity.
The decisions of the court illustrate the Court’s reluctance to give effect to
any legislative provision that attempts to exclude their jurisdiction in judicial
review. Even when such an exclusion is relatively clearly worded, the courts
will hold that it does not preclude them from scrutinizing the decision on an
error of law and quashing it when such an error occurs.
The Botswana Courts have also had the opportunity to state their position
with regard to final ouster clauses:
Tsayang Express Services; The Statute provided that the decision of the
Transport tribunal was final and conclusive and shall not be questioned in
any court of law. The Court in examining the application of the ouster clause
held that the rule of strict application was to be applied. Failure to observe
the principles of natural justice, and failure to take into account matters which
the tribunal was obliged to take into account could ground a review by the
court nothwithstanding the existence of an ouster clause. If the effect of such
failure was that in law the tribunal had not decided the matter at all. i.e the
decision was a nullity.
See Smith’s Transport Index, where the court applied the same principle in
the case.
Contrast the two decisions.
In conclusion, the common law seems to suggest that the Courts have
sought to make a distinction between time limit clauses and final ouster
clauses. Time limit clauses have been strictly applied, and urge the
complainant to speedily seek a remedy, owing to the expeditious nature
required of the review process whilst on the other hand the courts have had
little sympathy for final ouster clauses which seek to oust the jurisdiction of
the court altogether.

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ADMIN LAW NOTES- NDZINGE-MAKHAMISA’S GROUP

We can divide the principles applicable to judicial review under three

b) Subject matter ( the subject of the review) must be a decision or a

d) The decision must alter rights/obligations of that person(s) which are

e) Depriving a person of some benefit/advantage which they have

g) In addition, there are instances where there is the statutory exclusion

Traditionally, ouster clauses have 3 forms

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