UNIT 4 & 5 REVISION 2012/10/15

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION UNIT 4.2 JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

Control of administrative action Non Judicial review Control by Parliament & other functionaries than courts units 4.1 & 4.3 Judicial control of administrative action Control of administrative action by courts Unit 4.2

Introduction In democratic society it is the duty of the judiciary (1) to uphold the guidelines of the constitution; (2) to act as caretaker over the other branches of government; and to ensure that the exercise of powers are done in accordance with the well know legal principles of our society. (3) Private individuals are subordinate in the administrative law relationship, and it isimportant to regulate the use of administrative power by the state so that the state does not use its superior position to impose on our rights to freedom. With this in mind the Constitution makes specific provision for the rights of courts to control administrative action. Generally speaking courts won’t impose too much on the exercise of discretionary administrative powers, as these powers are mostly intertwined with the functions of the administrator.

Inleiding The principal of separation of powers is of fundamental importance for the independence of the courts. Judicial review must be free from politics and political influence and must enjoy the trust of the general public.

COURTS COURTS CANNOT BE SUPER-ADMINISTRATORS, THEY MUST NOT INTERFERE UNRESONABALLY WITH THE FUNCTIONS AND DISCRESSION OF THE EXECUTIVE AUTHORITY. INDEPENDENT: SEPERATION OF POWERS

Geregtelike Kontrole onder die nuwe Grondwetlike Bedeling Mees effektiewe en mees belangrike metode van kontrole van administratiewe handelinge omdat dit `n outoritêre en finale metode is om administratiewe dispute op te los. Dit is die funksie van die regsbank om wag te hou oor die Grondwet, en om te verseker dat die beoefening van regeringsmagte voeldoen aan die vereistes van die wet. Die outoritêre vindinge van die howe, gekoppel aan die beginsel van presedente, verseker dat die beginsels wat kom van die howe algemene geldigheid en toepassing verkry. Hierdie metode van beheer is terugwerkend – die howe kan terugwerkend die misbruik of inkorrekte beoefening van magte van die administrateur regmaak. Die aansoek vir hersiening mot gebasseer word op een van die gronde van hersiening neergelê in PAJA. Die funksie van `n hersienende hof is om te bepaal of die handeling uitgeoefen deur die administrateur is regmatig, redelik en prosedureel billig. Artikel 33 van die Grondwet maak dus voorsiening vir die basis van geregtelike intreding binne die sfeer van die administrasie. (NA DIE GRONDE VAN HERSIENING ONTSTAAN – ARTIKEL 33 REGVERDIG DIE INMENGING VAN DIE HOWE – SOOS IN DIE GRONDWET) Minister of Health v New Clicks Sa (Pty) Ltd, Pharmaceutical Society of South Africa and Others wys duidelik dat die omvang van geregtelike hersiening breër gemaak is deur ander beginsels van die Grondwet, meer spesifiek die anti-diskriminasie beginsel van gelykheid (artikel 9), the reg tot toegang van informasie (artikel 32), eiendomsregte (artikel 25) en artikel 34.

Geregtelike Kontrole onder die nuwe Grondwetlike Bedeling Judicial control under the new constitutional dispensation Judicial control under the new Constitutional Dispensation Courts have to give meaning to the values in the Constitution. Const makes provision that no person or organ of State may intervene with the functioning of courts. Sec 165(4) – Organs of state must assist and protect courts to ensure their independence. Courts must not substitute its opinion with that of the gevernment. But this does not mean thatthe descision by the President to enact new legislation cannot be subject to Constitutional review – Pharmaceutical Manufacturers Association of SA In Re: Ex Parte Application of President of the RSA. There are several cases wherein the courts have laid down these important principles. These principles have been ensrined by the stare decisis rule.

Judicial control under the new constitutional dispensation Which court has jurisdiction? Past: Judicial review of administrative action by High Courts was done in terms of their inherent common law powers of review. Definition of COURT in PAJA made it possible for courts the review administrative action. Sec 1(iv) of PAJA : The Constitutional Court, or (i) a High Court or another court of similar status, (ii) specifically designated magistrates’ courts. Including Magistrate couts is a big difference from the past. Problem = Magistrates are prohibited in sec 170 of the Constitution to Determine the constitutionality of legislation and presidential action.

Judicial control under the new constitutional dispensation Which court has jurisdiction? When all legislation is taken into account in the legislation referred to in sec 170, magistrates are excluded from deciding on the lawfulness of legislation or the acts of the president. Position of Magistrate in the judicial hierarchy is a problem. The question is if magistrates are independent organs of state who are judicial officers who function like judges. In Van Rooyen v S (High Court) was daar twyfeling oor die onafhanklikheid van die Landdroste soos vereis deur die Grondwet. Statutêre bepalinge soos die Magistrates Act, voorsien nie vir die instansie se onafhanklikheid, wat essensieël is vir onafhanklikheid van die Landdros. Verdere probleme vir die onafhanklikheid van die Landdros vloei uit die metode van aanstelling, bevordering en opleiding van die Landdroste.

Judicial control under the new constitutional dispensation Distinction between appeal and review Wade en Forsyth: “The system of judicial review is radically different from the system of appeals. When hearing an appeal the court is concerned with the merits of the decision under appeal. When subjecting some administrative act or order to judicial review, the court is concerned with its legality. On an appeal the question is ‘right or wrong’? On review the question is ‘lawful or unlawful’?” Review = way that a decision was made Appeal = merits of the matter. High Court never had an inherent appeal jurisdiction: right to appeal exists only when a specific statutory provision provides that it may take place.

Judicial control under the new constitutional dispensation The distinction between judicial appeal and review PAJA regulates the review of administrative action in accordance with sec 6. The procedure of review is also stipulated in the act. PAJA does not make provision for the right to appeal. One has to search for it in the enpowering provision that regulates the administrative power, to determine if the right to appeal exists. . Review concerns itself with, if the actions that took place conformed with the requirements of fair administrative action. Sec 6 – PAJA – grounds for judicial review. In review proceedings a court may not decide on the merits of an administrative decision. Rights to appeal may differ. Some legislation make provision for wide appeal – total re-trial or restricted to only certain legal question.

Judicial control under the new constitutional dispensation The distinction between judicial appeal and review Dit mag gebeur dat howe tydens die hersiening van `n administratiewe handeling, bewus word dat `n besluit verkeerd was, byvoorbeeld waar die besluitnemer nie die korrektheid van die besluit kan regverdig nie. Maar, aangesien die howe nie op die meriete van die besluit kan ingaan nie – die reg of verkeerd daarvan, wat kan gedoen word onder hierdie omstandighede? Dit is duidelik dat hierdie voorbeel wys dat die tradisionele onderskeid tussen hersiening en appèl al hoe meer onduidelik raak. Hierdie onduidelikheid is veral duidelik in die ondersoeking van redelike administratiewe handelinge.

Judicial control under the new constitutional dispensation Common law Review In common law the High Court always had the inherent power of judicial review. To be successful with a common law action a applicant had to prove the unlawfulness of the administrative act, and in order to do that he could use the common law principles that the action did not comply with the rule of natural justice or does not comply to the statutory formal requirements. Johannesburg Consolidated Investment company v Johannesburg Town Council: “Whenever a public body has a duty imposed on it by statute, and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the duty, this court may be asked to review the proceedings complained of and set aside or correct them. This is no special machinery created by the Legislature; it is a right inherent in the Court.” In Johannesburg Stock Exchange v Witwatersrand Nigel Ltd, judge held that to prove grounds of review, it had to be shown that the administrator did not apply his attention to the matters, and not the rules of natural justice.

Judicial control under the new constitutional dispensation The law regarding judicial review underwent fundamental changes with the new constitutional dispensation. Application of Review is now much wider than it was referred to in South African Roads Board v Johannesburg City Council. In a constitutional matter within its power, a court must declare that any right or action that falls outside the provisions of the constitution, is unlawful. This can be done by the SCA, high court, or a court of the same status. This declaration will have no effect until it is confirmed by the CC.

Judicial control under the new constitutional dispensation Constitutional Review The SCA looked at the question of parallel jurisdiction with the CC in Commissioner of Customs and Excise v Container Logistics (Pty) Ltd: Commissioner of Customs and Excise v Rennies Group Ltd t/a Renfreight: “The common law grounds for review have not ceased to exist. What is lawful and procedurally fair within the purview of s 24 is for the Courts to decide and I have little doubt that, to the extent that there is no inconsistency with the Constitution, the common law grounds for review were intended to remain intact. There is no indication in the interim Constitution of an intention to bring about a situation in which, once a court finds that administrative action was not in accordance with the empowering legislation or the requirements of natural justice, interference is only permissible on constitutional grounds. It is not the intention to abolish the branch of common law, but to leave it to the courts to bring it into conformity with the spirit, purport and objects of the Bill of rights.”

Judicial control under the new constitutional dispensation But in Pharmaceutical Manufacturers - Chaskalson found that: “The control of public power by the courts through judicial review is an always has been a constitutional matter. The common law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution, and in so far as they might continue to be relevant to judicial review, they gain their force from the Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts.” He did not find that the common law is a body of rules apart from the Constitution.: “There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.” This was also followed in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others.

Judicial control under the new constitutional dispensation Constitutional Review Effect of this decision is that constitutionalism shifts the focus of the common law to the Constitution. Common law is still material in the development of the public law. The common law amplifies the Constitution but derives its power from the Constitution. Thus the common law right to review has been replaced by the constitutional right to review. As stated in Sec 33 of the Constitution.

QUESTION 130 TO 139 IN WORKBOOK Very important, combined with judicial review. Question 138 Very important

Question 138: How does one determine whether an official is acting in his capacity as servant of the state? (20) To determine this, formal and material tests must be applied. Formal tests, although useful, not always decisive, and therefore material tests which concentrate mainly on the nature of the person’s activity, must also be employed(1)

FORMAL TESTS MATERIAL TESTS (i) Was the person acting within normal working-hours? (1) Examine the purpose for which the person was acting. This will usually be directed at the promotion of the general interest (2) (ii) Was he in uniform at the time?(1) The nature of the act. (1) The charac­teristic trait which distinguishes a servant of the state from other employ­ees is that he is the bearer of Govt authority. (1) (iii) (Where such servant normally wears a uniform); Did he indi­cate, either expressly or by implication, that he was acting in his capacity as a servant? (1) Look at the relationship between the state and the servant. (1) In the past the “control test” of private law was used to establish a state/servant relationship.(1) Initially the court found that a person was not acting in his capacity as servant of the state when he was exercising a discretion.(1) It was argued that under these circumstances the state cannot control the exercise of a discretion, with the result that the official was said to be acting in his own capacity. Sibiya v Swart.(1) Courts approach changed over years and the concept “within the scope of his authority” has been extended to “within the scope of his employment”, thereby allowing the court to judge the action of the servant objectively within the scope of his employment (1)

This doesn't mean the control test is without merit, but it is largely a formal test allowing the courts to ask whether the official falls under the control of the state and whether departmental control applies to him. (1) [Police cases: because all members of the police are prima facie servants of the state, a delict committed by a policeman in the course of his employment will that the state will be held prima facie liable. The state must then show that the officer was exercising a duty which took him out of the category of ‘servant ‘ in this particular case, ie the duty is of a personal nature]

SOME IMPORTANT QUESTION OUT OF THE WORKBOOK: Q 7 Q 97 Q 10 Q 99 Q 23 Q 113 Q 24 Q 114 Q 44 Q 116 Q 45 Q 117 Q 46 Q 125 Q 50 Q 126 Q 51 Q 128 Q 67 Q 135 Q 68 Q 138 Q 70 Q 85 Q 86 Q 95 Q 96

VERY IMPORTANT: DO NOT STUDY ONLY THE ABOVE – THE QUESTIONS PROVIDED ARE A GUIDELINE , IT IS NOT SUFFICIENT TO STUDY ONLY THAT. SUPLEMENT THE ANSWERS PROVIDED IN THE WORKBOOK WITH YOU TEXTBOOK, SLIDES AND CASE LAW. CASE LAW IS VERY IMPORTANT – STUDY THE CASES SO THAT A SHORT SUMMARY OF THE RELEVANT FACTS, THE LEGAL QUESTION AND THE RATIO CAN BE GIVEN WHEN YOU ANSWER EXAM QUESTIONS. PAJA – RELEVANT SECTIONS WHERE IT IS POSSIBLE, REFER TO CASE LAW AND PAJA