Chapter 3

1. Some are of the opinion that a strict distinction between appeal and review cannot be upheld in
South Africa, especially not in light of South African administrative law. Discuss this comment in
light of the distinction between appeal and review in South African administrative law. (7)

 The traditional distinction between an appeal and review is that an appeal is an appropriate remedy
where it is thought that the decision-maker came to the wrong conclusion on the facts or the law,
focusing on the merits of a case.
o Second decision-maker is entitled to declare the first decision right or wrong.
 Whereas a review is concerned with whether the decision was arrived at in an acceptable fashion.
o Focus is on the process, and on the way in which the decision-maker came to the conclusion.
o Concerns itself with issues such as the impartiality of the decision-maker = admissibility of
the evidence taken into account.
 Distinction between appeal and review is one of the fundamentals of SA administrative law in
general and judicial review in particular. (Anxious to uphold this distinction)
 Chief Constable of the North Wales Police v Evans
o Judicial review is concerned with decision-making process, not with the decision
 In practice the distinction between appeal and review is not as clear cut as it made to seem,
especially with regards to South African administrative law.
 This is primarily based on judicial review in administrative law, which mainly focuses on a decision
itself as opposed to the decision-making process.
 In truth it is in some cases impossible to separate the merits from the rest of the matter, since a
court cannot effectively judge the legality of a decision without considering the merits as well.
 This is particularly important in judicial review as courts are called to determine the reasonableness
of administrative action, which must contain a merits-based substantive element. This however is not
an appeal nor a review and therefore would more correctly be regarded as a “substantive” or “wide”
review.
 Rustenburg Platinum Mines case
o Line between review and appeal is ‘notoriously difficult to draw’.

 Nevertheless, the distinction between appeal and review continues to be asserted and upheld.
 The reason being that the distinction reflects the separation of powers doctrine, which is
fundamental to our constitutional order.
 The doctrine holds that it would be unacceptable for judges to pronounce on the merits of
administrative decisions, for then they would be acting ultra vires, (usurping the functions) impeding
on the functions entrusted by the Constitution to the Executive.
 Consequently making the courts reluctant to deviate from the strict distinction some believe cannot
be upheld.
 Judicial scrutiny, even on the merits, is not dangerous in itself – it is only when that scrutiny is
translated too readily into intervention that it becomes objectionable, for the court may well be
imposing its own idea of what the right decision would be. (Courts should be separate).

 Two main types of appeal: Appeals from Lower Courts to Higher Courts + Administrative Appeals
2. Briefly describe the five types of review found in South African law. (10)

Review of proceedings of inferior courts

This is where High Courts may be asked to review the proceedings of inferior courts, such as
magistrates’ courts and small claim courts.
The grounds = absence of jurisdiction, bias or corruption on part of presiding officer, gross
irregularity in proceedings, and admission of inadmissible evidence.

Automatic review

Certain statutes make provision for decisions of magistrates or other judicial officers to be
automatically reviewed by judges – review is not initiated by an aggrieved individual but
takes place by virtue of a statutory trigger.

Judicial review in the constitutional sense

In constitutional law ‘judicial review’ usually means the power of the courts to scrutinise and
declare unconstitutional any type of legislation, original or delegated, or state conduct that
infringes on rights in the Bill of rights or otherwise conflicts with the provisions on the
Constitution.

Judicial review in the administrative-law sense

This refers to the power of the courts have to scrutinise and set aside administrative
decisions or rules (delegated legislation) on the basis of certain grounds of review.
This type of review is regulated indirectly by s33 of the Constitution and directly by PAJA.
When PAJA is not of application, this type of review will be governed either by other
principles of the Constitution [s1(c) where public powers is concerned], or common law in
case of private powers.

Special statutory review

This is when the legislator confers on the courts the power of review. This is ‘special’ for it
differs from ‘ordinary’ judicial review in the administrative law sense. It is sometimes a wider
power than ordinary review and thus more akin to an appeal, but it may also be narrower,
with the court being confined to particular grounds of review or particular remedies.
Although statutory review power may be considered ‘far wider’, it is clear that the precise
extent of the power always depends on the particular statutory provision concerned.
Nel NO v The Master
 3. A complex and sensitive relationship exists between section 6 of the Promotion of Administrative
Justice Act (PAJA) and Section 33 of the Constitution concerning Judicial Review. Describe this
relationship in detail as well as the related aspect of the doctrine of subsidiarity. (10)

 PAJA is the default pathway to review, it also derives its legitimacy from the constitutional mandate
in s 33(3) of the Constitution – to ‘give effect to’ the administrative-justice rights and ‘provide for the
review of administrative action by a court or, where appropriate, and independent and impartial
tribunal’.
 Its main purpose is to give effect to the constitutional rights in s 33 of the Constitution, providing
immediate justification for judicial review.
 This purpose is achieved largely by s 6 of PAJA, which confers the powers of review on a ‘court or
tribunal’ and contains familiar grounds of review found in our common law.
 Resulting in the cause of action for judicial review of administrative action to now arise from statute
(PAJA) as opposed to our common law.
o Bato Star v Minister of Environmental Affairs
o Court’s power to review administrative action no longer flows directly from common law but
from PAJA and the Constitution.
o The extent to which common law remains relevant to administrative law review will have to
be developed on a case-by-case basis as the Courts interpret and apply PAJA + Constitution.
 This displacement of the common law by PAJA may be regarded as an aspect of the constitutional
principle of subsidiarity.
 The doctrine of subsidiarity, ‘is a familiar norm of almost all modern, democratic legal systems’,
defers to the legislature also by limiting the availability of direct constitutional review under sec 33
(due to PAJA).
 Direct review under s 33 is thus available only in limited instances, either where the constitutionality
of the PAGA is impugned (conflict with s 33 or fails to give effect to rights in s 33) or where other
original legislation is challenged on the basis that it infringes on the rights of s 33 unjustifiably.
o Zondi v MEC for Traditional and Local Government Affairs
 A related aspect of subsidiarity is that the doctrine of general norms should be resorted to only when
norms of greater specificity have run out.

 The PAJA and s 33 are confined to the category of ‘administrative action’, not all public power
qualifies as administrative action and thus do not fall under PAJA and s 33. (Some actions excluded).
 This does not mean it is all together unreviewable, but falls under the scope of special statutory
review.
 Special statutory review ordinarily operates to the exclusion of ‘default’ review under the PAJA,
which is necessarily so where offending conduct does not qualify as administrative action, however,
where it does qualify under PAJA, the applicant will presumably be in a position to choose between
the remedies offered by the PAJA and the regime of statutory review.

 The PAJA should not necessarily be regarded as the sole piece of national legislation giving effect to
s33, for there was nothing in s33 to preclude further specialized legislation – s145 of LRA

4. Is non-administrative action also catered for in South African law? Substantiate your answer by
reference to the principle of legality and the rule of law. Also refer to case law as examples. (7)
  Yes, non-administration action is catered for by the Constitution in general and by the broad
principle of legality identified by the Constitutional court as an aspect of the rule of law.
 The principle of legality provides a general justification for the review of exercises of public power
and operates as a residual source of review jurisdiction – 4th pathway to review.
 Since s 33 specifically requires administrators (administrative action) to act lawfully, reasonably and
procedurally fair, and to give reasons in certain circumstances; and the detailed content of legality
has been written down in the form of a list of grounds of review in s 6 of PAJA.

 But legality also has a wider meaning that goes beyond administrative action – the broad
constitutional principle of legality that governs the use of all public power.
 Principle of legality is an aspect of rule of law – fundamental idea is that ‘the exercise of public power
is only legitimate where lawful’.
 Acting as a safety net, giving the courts some degree of control over non-administrative action for
the purposes of the PAJA and s 33 but still involves the use of public powers

 Examples of cases involving non-administrative action:

 In Fedsure Life Assurance ltd v Greater Johannesburg Transitional Metropolitan Council, The court
identified the principle of legality as an aspect of the rule of law. Here it was held to imply that a
body exercising public power had to act within the powers lawfully conferred on it.

 In Pharmaceutical Manufacturers Association case, where near-legislative action was in issue, it

demanded that the exercise of public power should not be arbitrary or irrational – Chaskalson P said:
It is a requirement of the rule of law that the exercise of public power by the Executive and other
functionaries should not be arbitrary; decisions must be rationally related to the purpose for which
the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement.

 In President of the RSA v SA Rugby Football Union, the principle required the holder of public power
to act in good faith and not misconstrue his or her powers.

 More recently in Albut v Centre for the study of violence and reconciliation, the CC expanded the
principle of legality by treating procedural fairness as a requirement of rationality.

Just administrative action

33. (1) Everyone has the right to administrative action that is lawful, 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.
Narrow Approach Wide Approach
Ultra Vires = acting outside the scope of your powers
Enabling provision All administrative action must comply with the general
Reasonableness outside the provision’s ambit principles / precepts as determined by the law –
administrative action must therefore be in accordance
May not act beyond scope of authority conferred by the with the law. Thus:
enabling statute 1. Must comply with the Constitution
Problem – formalistic approach which takes into 2. Demands compliance with the provisions of the
account formal regularity only. Where empowering enabling statute.
provision does not expressly prohibit unreasonableness 3. Demands compliance with the rules and
or retrospective action, such unreasonable action will regulations of common law.
not be invalid. 4. “Umbrella” term or collective noun for all the
legal requirements for valid administrative action.
1. Can be traced back to English law where ultra vires
action meant that an administrative authority had Illustration of the wide approach – University of Cape
exceeded the bounds of the empowering statute. Town v Ministers of Education – the imposition of certain
conditions (the failure to comply with these conditions
entitled the Minister to withhold all or part of the
university’s subsidy) had been prompted by an “ulterior
What does the principle of legality mean in motive” to achieve an object not empowered by the
administrative law? empowering Act – ultra vires and invalid

-Similar to the broad approach to ultra vires. Also, in the case of Natal Newspapers v State President of
-Requires that all administrative action comply with the Republic of South Africa the court also adhered to the
the provisions of the supreme Constitution. It also broad approach to ultra vires. The court found that the
requires that administrative action not defined in question whether a regulation by the State President was
section 6 of PAJA comply with lawfulness, intra vires or not, depended firstly on the scope and
reasonableness and fairness. terms of the enabling provision of the Act and secondly
-Must comply with the requirements of the on whether the subject-matter of the regulation had
empowering statute and all the rules and prescripts been authorized by those terms.
of common law. Thus, contrary to the narrow
approach of ultra vires.
-Administrative action must not only conform to the
provisions of the empowering statute, it must also
conform to all the general principles laid down by
law.
-It is said that legality encompasses the powers of
the administration as well as the actions of the
administration as a whole.

SAFETY NET
To give courts control where use of public power is
not “administrative action” in terms of PAJA or
section 33, but still involve use of public power

5. Is it possible for judicial review to remain a constitutional matter if the body exercising the power
happens to be a private rather than a public body? Thus, can a private body, performing a public
power and function be subject to judicial review? (10)
 Under our Constitution it is quite possible for a judicial review to remain a constitutional matter even
if the body exercising the power happens to be a private rather than a public body.
 The nature of the actor (whether private or public) while possibly relevant, is not the primary
determinant of subjection to the Constitution or the Bill of Rights.
 The main determining factor would be whether the nature of power or function the entity performs
is public or private.
 Thus a private body, performing a public power and function can very much be subject to a judicial
review.
 Section 8(1) of the Constitution makes the Bill of Rights binding to all three arms of government + all
organs of state.
o S 239 Organ of state = any department of state or administration in national, provincial or
local sphere of government; or any other functionary or institution (excluding the courts or a
judicial officer) which either:
 exercises a power or performs a function in terms of the Constitution or provincial
constitution; or
 exercises a public power or performs a public function in terms of any legislation.
 The implication of this provision is that the exercise of public power is always subject to
constitutional control and to the rule of law, even when the entity exercising the power is not acting
as an organ of state (that is, even when the power is not exercised in terms of a constitution or
legislation), the power will still be subject to the principle of legality.
 Some private actors conduct might even be ‘administrative action’ for the purpose of the PAJA.
PAJA’s definition is liberal when it comes to private actors.
 Since the definition includes both juristic and private (natural) person when exercising a public
power or performing a public function in terms of an empowering provision, thus enabling private
actors to be subject to PAJA.
Not sure if I should include more work from the textbook.
6. Can a private body, performing a private power and function be subject to judicial review in
South African law? (5)
 Yes, in the context of administrative law s 39(2) of the Constitution provides constitutional
justification for the review of private power.
 Reviewability of private power in administrative law is embeddedin s8(2) of the Constitution, which
contemplates the direct ‘horizontal’ application of constitutional rights in the private sphere, binding
natural or juristic persons if, and to the extent that, it is applicable, taking into account the nature of
the rights and the nature of any duties imposed by those rights.
 It has also been suggested that such review could possibly be situated in the horizontal application of
s33 of the PAJA.

 Today however reviewability takes place in terms of the well-established principles of our common
law rather than the direct application of sec33 (not ruling out the indirect application).

7. South Africa has begun to follow the lead of other countries that have privatized or contracted
out some of the functions traditionally performed or provided by government. Describe the
 trend towards privatization of government functions and its effect on the public/private
distinction. Also refer to case law. (8)

 The trend towards privatizing or contracting out some of the functions traditionally performed or
provided by government stem from the supposed benefits privatization provides.

 Such as improvement to: the efficient delivery of services; while reducing the cost of services to the
consumer; as well as the increased accountability of service providers; while addressing the issues in
our traditional mechanisms of accountability for administrative power and other forms of legislative
oversight, which are inadequate to the scale and complexity of modern government. One main
argument is that the effect of competition would lead to the healthy disciplinary effect of
competition, reason being that they would have to fight for market share with other commercial
entities, which will be good for delivery and public purse.

 The trend towards privatization raises several issues of concern to administrative law.
 The public rely on the delivery of certain essentials, where the state may be duty bound under
public-law.
 Privatization, however, turns citizens into ‘consumers’ which introduces them into private law
relationships with the providers of services. In reality, the consumers may have little or no choice as
to their relationships with service providers.

 Our legal systems today has become more astute (competition law and consumer protection law,
inter alia) in general to protect the vulnerable in their private relations, in order to take account of
the way in which private power is exercised. Nevertheless the label “private” makes life considerably
easier for any organization.

 Courts however seem to be tempted, in situations where relative immunity of private companies
arise to “fill the accountability vacuum” as illustrated in R v Panel on takeovers and mergers, where a
private company failed at claiming immunity from review (claiming that they fall outside the judicial
review scope, as a private organization) the court determined they had no such immunity, since the
nature of the power which a private organization has is also relevant.

 Similarly, Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock exchange the court reviewed the
JSE and held that they had the authority for such review as the JSE was under statutory duty to act in
public interest, based on the important nature of the public function performed by the JSE. The
effect this movement has on the public/private distinction is abundant, due to the growth of
privatization and or contracting out of governmental functions, the distinction between private and
public grows ever smaller.