Sustainable transformation through innovation”

SCHOOL OF LAW

STUDENT NAME : TSHEPO TEFO NCHOLO

STUDENT # : A2357501

CONTACT DETAILS (CELL & EMAIL): +260 779 107 7271 [email protected]

YEAR OF STUDY : 2024

SEMESTER OF STUDY : SECOND SEMESTER

COURSE NAME & CODE : ADMINISTRATIVE LAW/L122

ASSIGNMENT (1 or 2) : 2

DUE DATE : 12th APRIL, 2024.

COURSE LECTURER : MR. BESA

 In Nyampala Safaris (Z) Limited and Others v Za mbia Wildlife Authority & Others1 the court
outlined the principle of judicial review as follows:
‘That the remedy of judicial review is concerned, not with the merits of the decision, but with the
decision-making process itself; (b) That the purpose of judicial review is to ensure that the
individual is given fair treatment by the authority to which he/she has been subjected and that it is
not part of the purpose to substitute the opinion of the judiciary or of the individual Judge for that of
the Authority constituted by law, to decide the matter in question’

In detail and succinctly, discuss the statement above and explain the distinction between judicial
review and an appeal.

To start off, judicial review is defined as the branch of Public Law that is concerned with the
establishment of public administrative bodies, confers on them the functions and powers that they
have, regulates the exercise of the functions and powers as conferred on them to ensure conformity
to the law, establishing them in the performance of their functions, failure to which, recourse
mechanisms would be had via an application to the High Court known as judicial review, where the
court has the power to grant an order of certiorari, also known as a quashing order, an order of
mandamus, also known as a mandatory order, and an order of prohibition.

Judicial Review is indeed concerned more with the decision making and thought process leading
up to a decision than the merits of said decision, as stipulated by the court in Nyampala Safaris (Z)
Limited and Others v Zambia Wildlife Authority & Others.
Their continuance to say that judicial review is to ensure that the individual in is given fair
treatment by the authority to which they have been subjected is in line with the factors that are put
into consideration by the courts when judicially reviewing a case; those questions being “has the
respondent followed procedure?” “Did the respondent act legally?” and last, but certainly not least,
“Did the respondent act fairly?”

To as to place emphasis on the aspect of fairness, as has been done by the court, it will be the
final address; the first being the aspect of legality, or lack thereof so far as conduct of the
respondent or body under review is concerned.
This merely begs the question of whether or not the body under review has been given by statute,
or Acts of Parliament, the jurisdiction to act in the manner that they did. No institution concerned
with governance has the authority to exercise their function out of their discretion, and so are
constituted by a concise body of laws which speaks to and defines their function, powers, and
orders of operation.

Take into account the case of Harrington v Silya & Another (Appeal 111 of 2009) [2011] ZMSC
2 (7 July 2011); where the Deputy Chief Justice held that the consideration of a constitutional
provision by a tribunal that had come together to judicially review the case was illegal because that
tribunal had exceeded its jurisdiction, as constitutional matters were at the time preserved for the
High Court, and the jurisdiction of the tribunal began and ended within the confines of the
concerned legislation.

The next question is of adherence to procedure, else known as the question of procedural
impropriety, which is one of whether or not there has been failure on the part of a public authority to
act in accordance with the requirements of procedural fairness and in compliance with the common-
law rules of natural justice. This especially is where the notion that Judicial Review is focused more
so on decision making procedure than on merit of decisions is derived from.
At the heart of procedural impropriety lies the sacrosanct concept of natural justice; with its twin
pillars of audi alteram partem, which means “hear the other side”, and nemo judex in causa sua,
which translates to “no one should be a judge in their own cause’, that serve as a measure against
arbitrary decision-making. Natural justice demands that peoples affected by a decision be afforded
the opportunity to present their case, to know the case against them, and to have their matters
adjudicated by impartial decision-makers; hence judicial review.
Moreover, procedural impropriety encompasses breaches of statutory procedures. As previously
stipulated, administrative bodies and their decisions are governed by specific legislative frameworks
delineating the procedures that must be followed. When decision-makers of bodies which carry out
functions concerning the public ignore, or work in spite of these statutory provisions, they are
acting ultra vires, and improperly so far as established procedure is concerned.

The case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult
(No 2) highlights this well.
The Chagos Islanders had been forcibly removed from their homeland in the late 1960s and early
1970s to make way for a US military base on the island of Diego Garcia.
 The issue was one of whether or not the British government’s decision to prohibit Chagos
Islanders from returning to their homeland in the Chagos Archipelago was procedurally sound
despite its being made with no legislation to confirm its legitimacy; especially when taking into
account that in 1971, the Foreign Secretary had made a statement that lead the Chagos to believe
that they were free to return home—which may or may nor have created a legitimate expectation,
which is covered under the parameters of natural justice.
The House of Lords in 2008 found that after taking into account the Foreign Secretary’s words,
the decision-making process leading to the expulsion of the Chagos Islanders was procedurally
improper and contrary to rules of natural justice, as the Foreign Secretary’s statement had not been
clear, and was unambiguous enough to provide legitimate expectation.

Another case to consider is the case of Anisminic Ltd v Foreign Compensation Commission
[1969] 2 AC 147, where as a result of the Suez Crisis some mining properties of the appellant,
Anisminic, located in the Sinai peninsula were seized by the Egyptian government before
November 1956. Anisminic then sold the mining properties to The Economic Development
Organisation (TEDO), owned by the Egyptian government, in 1957. In 1959 and 1962, Orders in
Council were made under the Foreign Compensation Act 1950 to distribute compensation paid by
the Egyptian government to the UK government with respect to British properties it had
nationalised. Anisminic claimed that they were eligible for compensation under the Orders, and the
claim was determined by a tribunal (the respondents in this case) set up under the Foreign
Compensation Act. The tribunal decided that Anisminic were not eligible for compensation, because
TEDO, their “successors in title”, did not have British nationality, as required by the Orders.
Anisminic sought judicial review of the tribunal’s decision. Anisminic were successful in the
High Court, but the decision was reversed by the Court of Appeal; Anisminic then appealed to the
House of Lords, who found the the tribunal’s purported decision to be invalid, because the tribunal
had misconstrued the term “successor in title”, which was procedurally improper. Since the
tribunal’s determination that Anisminic did not qualify for compensation was null, Anisminic were
entitled to a share of the compensation paid by the Egyptian government.

Finally, we arrive at the point of address for the ground of procedural unfairness.
This is in reference to unfairness in performance of prescribed function in concern to how
decisions are made. Primarily taking into consideration the factors of bias and inadequacy of
reasoning in considering in making a decision.
 One of the most fundamental principles of procedure is that decision-makers must be impartial
and unbiased in their application of their powers and performance of their function. In a situation in
which the decision-maker had a personal interest, prejudice, or bias in the matter under
consideration, the decision may be found to be null by the court.
One of the most fundamental aspects of procedural fairness is provision of a fair hearing, in
which the individual whom the decision is being made to the detriment of is given the opportunity
to present their case or respond to the case against them. Every individual has a right to be heard
and to have their perspective considered before a decision is made.
This also implies that parties affected by a decision should have a reasonable opportunity to
present evidence and arguments in support of their case. If this opportunity is denied or unduly
restricted, it can undermine the fairness of the decision-making process to the detriment of the body
or institution which is being judicially reviewed.

For such instance, consider the case of Ridge v Baldwin [1964] AC 40; where the Brighton
police authority dismissed its Chief Constable, Charles Ridge, without offering him an opportunity
to defend his actions. The Chief Constable appealed, arguing that the Brighton Watch Committee,
which was headed by the respondent, George Baldwin, had acted unlawfully in terminating his
appointment in 1958 following criminal proceedings against him.
The House of Lords held that Baldwin’s committee had violated the doctrine of natural justice,
overturning the principle outlined by the Donoughmore Committee thirty years before that the
doctrine of natural justice could not be applied to administrative decisions. This became the
landmark case in so far as decisions taken by the UK executive to judicial review in English law are
concerned. A case against which all cases are considered.

The case of R (G) v Governors of X School (2011) is also a relevant case to consider in such
instance. Here, a student, referred to as G, was permanently excluded from X School by the
governing body of the school following an incident of violent behaviour. The decision to exclude G
was made without giving him a fair opportunity to challenge or respond to the allegations against
him. As a result, G brought a legal challenge against the school's decision, arguing that it was
procedurally unfair and violated his rights.
The Court of Appeal held that the school’s decision to exclude G was procedurally unfair. The
court emphasised that the principles of natural justice require that individuals affected by a decision
should be given a fair opportunity to present their case and respond to any allegations made against
them. In this case, G was not provided with sufficient notice of the allegations or given the
opportunity to adequately challenge the decision to exclude him.

Another factor taken into consideration in concern to procedural fairness is the provision of
reasons, or so far as unfairness goes, the lack thereof. Disclosure of reasoning behind decisions is
important for accountability and transparency. If a decision is made without adequate explanation or
justification, it can be deemed by the courts to be procedurally unfair.

Such is what transpired in the case of R. v. Secretary of State for the Home Department, ex parte
Doody (1993). Four prisoners; namely Stephen Doody, John David Pierson, Elfed Wayne Smart and
Kenneth Pegg, serving mandatory life sentences, requested judicial review after the Home Secretary
refused to release them after serving their minimum terms, but gave no reason for the decision.
In his ruling, Lord Mustill determined that it was incumbent upon the Home Secretary to provide
justifications for their decisions. He contended that decisions exercised under statutory authority
must adhere to principles of fairness, as the grant of such authority inherently implies a commitment
to fairness. Consequently, he inferred that it’s often necessary to afford individuals the opportunity
to present their case, which necessitates informing them of the grounds prompting their
representations in the first place.

To summarise, judicial review serves as a mechanism within Public Law to ensure the adherence
of public administrative bodies to legal standards and principles. It is primarily concerned with
scrutinising the decision-making processes of these bodies rather than evaluating the merits of their
decisions. Three key pillars guide this scrutiny: legality, procedural propriety, and fairness.
Legality encompasses whether the body under review has acted within the scope of its statutory
authority. Failure to do so renders their actions ultra vires, as exemplified in cases like Harrington v
Silya & Another and Anisminic Ltd v Foreign Compensation Commission.
Procedural propriety, or adherence to due process, ensures that decision-makers follow fair and
transparent procedures. This includes considerations of natural justice, such as the right to be heard
and impartial decision-making, as seen in cases like R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte Bancoult (No 2) and Ridge v Baldwin.
Fairness, the cornerstone of judicial review, demands unbiased decision-making and the
provision of reasons for decisions. Lack of fairness, as demonstrated in cases like R (G) v
Governors of X School and R. v. Secretary of State for the Home Department, ex parte Doody, can
lead to decisions being overturned by the courts.
Ultimately, judicial review safeguards the rule of law by holding public authorities accountable
for their actions, ensuring that they act intra vires, follow fair procedures, and provide reasoned
justifications for their decisions.

As for the distinguishing between judicial review and appeal, the purposes of either should be
the first factors to be considered.

Judicial review is, as established multiple times now, concerned with the legality, propriety, and
procedural fairness of decisions made by public bodies, including government agencies, tribunals,
and local authorities. Judicial review focuses on decision-making processes, not on the outcomes of
cases. It examines whether the decision-makers had the legal authority to make the decision,
whether they followed the correct procedures, and whether the decision was rational and fair.
Judicial review does not reassess the merits of the decision or reevaluate the evidence presented in
the case.
In as far as the outcome goes where judicial review is concerned, the decision in contention may
be quashed, affirmed, or remitted back to the decision-maker for reconsideration. It does not
necessarily lead to a change in the decision itself but may prompt a reconsideration based on legal
and procedural grounds.

An appeal, on the other hand, is a process by which a higher court reviews the decision of a
lower court or tribunal with the aim of correcting errors of law or fact. The appellant typically
challenges the outcome of a case, seeking a review of the entire case, including the evidence
presented and the application of law by the lower court. The appellate court can either affirm,
reverse, or modify the decision of the lower court. Appeals generally focus on the substantive merits
of the case rather than the process followed by the lower court.

The key differences lie in the jurisdiction and purposes of either. Judicial review ensures that
governmental actions comply with the rule of law and established principles, while an appeal aims
to correct errors made by lower courts in applying the law.
 Take into consideration the words of Lord Greene in the case of Associated Provincial Picture
Houses Ltd v Wednesbury Corp; the case in which the principle of wednesbury unreasonableness
was established—following his dismissal of the appeal that Associated Provincial Picture Houses
Ltd made of Wednesbury Corp’s decision-making process in respect to opening hours, when he
said, “the power of the court to interfere in each case is not as an appellate authority to override a
decision of the local authority, but as a judicial authority which is concerned, and concerned only, to
see whether the local authority have contravened the law by acting in excess of the powers which
Parliament has confided in them.”

The confusion typically arises from the notion that judicial review, like appeal, is to reconsider
the decisions made in the situation of first instance; but the shortcoming of this notion is the idea
that a governmental body’s decision can be considered as a first instance hearing when in actuality,
that is reserved for the judiciary. That is to say that while judicial review may be an issue of first
instance, appeal is never an issue of first instance, as implied by the term “appeal”.
Even the relevant courts in judicial review as opposed to appeal are not the same. Judicial
review, as highlighted in the definition, begins at High Court level, and may develop to the point of
being heard by the Supreme Court.
Appeal, on the other hand, implies that a case has already been heard in a lower court. That is to
say that a High Court overturning the decision of a lower court in appeal usually means that the
lower court had the jurisdiction to hear the case in the first place, which is not possible where
judicial review is concerned.

In conclusion, distinguishing judicial review from appeal, the former focuses on reviewing the
decision-making process of public bodies, while the latter aims to correct errors of law or fact made
by lower courts. Judicial review does not reassess the merits of a decision but may prompt
reconsideration based on legal and procedural grounds. Appeals, however, scrutinise the entire case,
including evidence and application of law, with the goal of affirming, reversing, or modifying the
decision of the lower court.
The distinction between judicial review and appeal lies in their purposes and jurisdictions.
Judicial review ensures governmental actions comply with the rule of law, while appeal corrects
errors made by lower courts in applying the law. Understanding these differences is crucial for
effective recourse to legal mechanisms and upholding the principles of justice and fairness in
governance.
1. Precedents:

Nyampala Safaris (Z) Limited and Others v Zambia Wildlife Authority & Others
Harrington v Silya & Another (Appeal 111 of 2009) [2011] ZMSC 2 (7 July 2011)
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Ridge v Baldwin [1964] AC 40
R (G) v Governors of X School (2011)
R. v. Secretary of State for the Home Department, ex parte Doody (1993)
Associated Provincial Picture Houses Ltd v Wednesbury Corp
2. Statutes/Statutory Provisions:

Foreign Compensation Act 1950