1. UNIVERSITY OF LUSAKA SCHOOL OF LAW
UNIT 7(2): INTRODUCTION TO THE CONCEPT OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
Kasumpa M. Kabalata
UNIVERSITY OF LUSAKA SCHOOL OF LAW

2. Structure of Presentation
What is Judicial Review?
What is a public body for purpose of Judicial Review
Scope of Judicial Review
Grounds for Judicial Review
Protection of Public Bodies in Judicial Review

3. What is Judicial Review?
Judicial review is a public remedy, by which an individual can challenge the legality of decisions, determinations, orders or even omissions of persons or bodies performing public functions.
It is by judicial review that the Court (high Court) can exercise its supervisory jurisdiction over inferior bodies, tribunals, public bodies and individuals performing public functions.

4. What is Judicial Review?
Judicial review can also be described as a procedure whereby, a court examines the exercise of a delegated discretionary decision-making power, in order to ensure that the power has been properly exercised for its lawful purpose.
The court can intervene where the person or body, which has been given the power fails to act, when it is required to or when it makes a decision which it ought not to have made when acting properly within the terms of the mandate given to them.
Judicial review is an example of the functioning of the doctrine of separation of powers.

5. What is Judicial Review?
The philosophical foundation of Judicial Review has been aptly stated by Scott Gordon and James Madison, Gordon says:
“In all government there is a perpetual intestine struggle, open or secret, between authority and liberty and neither of them can ever absolutely prevail in the contest. A great sacrifice of liberty can never, and perhaps ought never, in any constitution to become quite entire and uncontrollable … it must be owned that liberty is the perfection of civil society, but still authority must be acknowledged as essential to its very existence”.

6. What is Judicial Review?
James Madison said:
“If men were angles, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men, the great difficulty is this: you must enable the government to control the governed and in the next place oblige it to control itself”.

7. What is a Public Body for the Purpose of Judicial Review?
There has been some misconception as to the definition of a “public body” in Zambia and England where the concept of judicial review was imported.
Judicial review is only available to test decisions made by public bodies.
If judicial review is applied for, and the Court rules or determines that the body whose decision is being challenged is a private body, then the remedy will lie in private law, not public law proceedings.

8. What is a Public Body for the Purpose of Judicial Review?
In Ludwig Sondashi vs. Godfrey Miyanda (sued as National Secretary of the MMD (1995/1997) ZR p.1, the appellant had been expelled from the respondent political party and he sought a judicial review and a declaration that he had been wrongly expelled. The Trial Court found that the wrong procedure had been adopted, as respondent was a society dealing with private matters. The application was dismissed.

9. What is a Public Body for the Purpose of Judicial Review?
On appeal to the Supreme Court, the questions to be considered was whether the tribunal against which the order was sought was one dealing with public law, the Respondent being a political party and its concerns being those of a private association, its tribunals dealing with private, not public law, judicial review could not lie against a political party.
It was held that the Appellant was entitled to come to court, but had adopted a wrong procedure as “the proper course would have been to have issued a writ of summons claiming a declaration and injunction, not by way of application for judicial review”.

10. What is a Public Body for the Purpose of Judicial Review?
Similarly, in Nkumbula vs Attorney-General (1987), the United National Independence Party (UNIP), it was held was a club and therefore a subject of private law.
The reason why public law disputes have been subjected to the Order 53 procedure is that specific protections have been incorporated into this order for benefit of public authorities. It is a trite or settled law that government is a privileged litigant.

11. What is a Public Body for the Purpose of Judicial Review?
In R v. City Panel on Takeovers and Mergers ex parte Datafin Limited (1987) QB 815, City Panel had dismissed a complaint by a bidder of acting in concert contrary to the rules on takeovers. The bidders applied for judicial review. The Court declined to grant the application on the basis that there were no grounds for judicial review, but nevertheless, rejected the claim made by the City Panel, that the Court had no jurisdiction to consider the application.
The City panel was subject to judicial review, despite its lack of statutory or prerogative source of power because it was a body exercising public functions parallel or analogous to those, which could be or have been, in the absence of the panel, exercised by a government department.

12. What is a Public Body for the Purpose of Judicial Review?
Lloyd LJ. Stated that, for the most part, the source of power will be decisive. Accordingly, if a body is set up under the statute or by delegated legislation, then the source of the power brings the body within the scope of the judicial review.
However, Lloyd LJ, also recognized that in some cases the matter would be unclear, where the situation existed, it was necessary to look beyond the source of power and consider the ‘nature of the power’ being exercised.
In Lloyd’s view, if a body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.

13. What is a Public Body for the Purpose of Judicial Review?
The above case can also be compared with the case of R v Disciplinary Committee of the Jockery Club ex parte Age Khan (1993) WLR 909.
The Age Khan sought judicial review of the jockery club’s decision, to disqualify his winning horse from a race for failing a dope test, and the court ruled that it had no jurisdiction.
The relationship between racehorse owners and the club and the powers of the club, derived from the agreement between the parties and was a matter of private rather than public law.

14. What is a Public Body for the Purpose of Judicial Review?
The same principle will be applied whenever a matter is regulated by contract between two private parties, as the matter is one of private law and not public law.
There is a fine distinction though, which has to be drawn here. The regulation of a private school, for example, has been held to be a matter of private law whereas the regulation of City Technical College, a non-fee paying publicly funded institution, is a matter of public law.

15. What is a Public Body for the Purpose of Judicial Review?
However, where a pupil attends a private school under a publicly funded assisted places scheme, that school falls within jurisdiction of judicial review in relation to a school’s decision, in particular, the decision to expel a pupil. See R v Governor of Haberdasher’s Asker’s Hatcham College trust ex parte T.
In determining whether or not the body whose decision is being challenged on an application for judicial review is a public body, as opposed to a private body, the court will look at functions exercised by the body.

16. What is a Public Body for the Purpose of Judicial Review?
The test is not whether or not the authority is government body as opposed to a private body. The court will look at the functions.
Whether it is a body exercising powers parallel or similar or analogous to those exercisable by government bodies.

17. Scope of Judicial Review
In the case of Nyampala Safaries (Z) Limited and Others v Zambia Wildlife Authority and Others (SCZ No. 6 of 2004) the Supreme Court of Zambia restated the following basic principles underlying the process of judicial review:
(a) The remedy of judicial review is concerned, not with the merits of decision, but with the decision-making process itself.

18. Scope of Judicial Review
(b) The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected to and that it is not part of that purpose to substitute the opinion of the judiciary or the individual judges for that of the authority constituted by law to decide the matter in question.

19. Scope of Judicial Review
(c) a decision of an inferior court or public authority may be quashed (by an order of certiorari) where that body or authority acted:
(i) without jurisdiction; or
(ii) exceeded its jurisdiction; or
(iii) failed to comply with the rules that are applicable; or
(iv) where there is an error of law on the face of the record; or
(v) the decision is unreasonable in the Wednesbury Sense, namely that it was a decision which no person or body of persons property directing itself on the relevant law and acting reasonably, could, have reached.

20. Grounds for Judicial Review
In Council of Civil Service Unions v Minister of State for Civil Service (1981) AC 363, the House of Lords, took the opportunity to offer a rationalization of the grounds for judicial review and ruled that the basis for judicial review could be subsumed under three principal heads, namely: Illegality, Irrationality, and Procedural Impropriety.
Other grounds might emerge.

21. Grounds for Judicial Review
Lord Diplock elucidated the concepts as follows:
(i) By ‘illegal’ as a ground for judicial review, I mean that the decision maker must understand correctly that the law regulates his decision making power and give effect to it.
(ii) By ‘irrationality’ I mean what can now be succinctly referred to as Wedbesbury unreasonableness.
It applies to a decision, which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to question to be decided could have arrived at it.
Whether the decision falls within this category is a question that judges by their training and experience should be well equipped to answer.

22. Grounds for Judicial Review
(iii) Procedural Impropriety is a failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.
This is because susceptibility to judicial review, under this head covers also failure by an administrative tribunal to observe rules that are expressly laid in the legislative instrument by which its jurisdiction is conferred, even though such failure does not involve any denial of natural justice.

23. Grounds for Judicial Review
Further grounds may include:
(i) Proportionality
(ii) Abuse of Power – Ulterior motives or irrelevant Consideration.

24. Protection of Public Bodies in Judicial Review
Access to judicial review is not a matter of right.
It is subject to the discretion of the court as Sir H. Woolf observed, “if the leave stage was abolished, the court will be deprived of the power to exercise discretion”.
The leave stage empowers the court to dispose applications for judicial review summarily without taking evidence or hearing submissions of the body alleged to have acted unlawfully.

25. Protection of Public Bodies in Judicial Review
The leave stage is meant to protect public bodies from being harassed by applicants making ill-founded challenges.
Lord Scarman in the case of IVC v National Federation of self Employed Small Business Limited (1982) AC 617 at page 653 stated that “Leave enables the court to prevent abuse of busy bodies, by cranks and other mischief makers. I do not see any other purpose served by the leave requirements.”

26. Protection of Public Bodies in Judicial Review
It is expected that at the leave stage, unmeritorious applications will be weeded or thrown out.
The application should contain a statement of the relief sought and the grounds upon which it is sought.
The application should be accompanied by an affidavit verifying the facts relied on.
From these documents, a judge is expected to ascertain whether the application has any merit.

27. Protection of Public Bodies in Judicial Review
No leave for judicial review should be granted unless the applicant can show that they have a sufficient interest in the matter.
Care should be taken in such a matter, so as not to reject bonafide public interest litigation.
The court faced with an application for leave for judicial leave, should assess the litigant and decide whether, he has a bonafide complaint. See R v Secretary of State for Foreign Affairs ex parte World Development Movement (1995) 1 All ER 611

28. Protection of Public Bodies in Judicial Review
Leave will not usually be granted where the applicant has not exhausted alternative remedies.
As Lord Donaldson has stated in R v Epping and Harlow General Commissioner ex parte Goldstraw (1993) 3 All ER 257 at page 262 “expect in exceptional circumstances, the judicial review jurisdiction will not be exercised where other remedies are available and they have not been used”.
A judge faced with a situation, for example, where a right to appeal is provided, has to weigh the circumstances and exercise his discretion whether or not to grant leave.

29. Protection of Public Bodies in Judicial Review
The Sufficient Interest Test
The court must not grant leave for an application for judicial review unless it considers that the applicant has sufficient interest (otherwise expressed as “standing” or “locus standing” in that matter, to which the application relates.
The justification for such a requirement lies in the need to limit challenges to administrative decision making to genuine cases of grievance and to avoid unnecessary interference in the administrative process by people whose objective are not authentic.

30. Protection of Public Bodies in Judicial Review
The applicant may be an individual whose personal rights and interests have been affected by a decision, which affects the interests of society as a whole.
Alternatively, the application may be brought by an interest or pressure group desiring to challenge a decision, which affects the rights and interests of members of that group or society at large.

31. Protection of Public Bodies in Judicial Review
The manner in which the Sufficient Interest Test is applied, see following cases:
R v Inland Revenue Commissioners ex Parte National Federation of Self-Employed and Small Business
Schmidt v Secretary of State for Home Affairs
Gouriet v Union of Post Office Workers (1948) 1 KB 223
R v Secretary of State for Foreign and Commonwealth Affairs ex Parte Rees – Mog (1985) AC 370

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