Judicial review in South Africa

The Constitutional Court of South Africa has developed several requirements for the lawful exercise of public power, including an elaborate rationality test.

[i] Although the South African judiciary retained these functions throughout the 20th century, its powers of judicial review were otherwise severely limited during the apartheid era.

[1] In Collins v Minister of the Interior,[ii] a judgment written by Chief Justice Albert van der Sandt Centlivres in 1956 at the tail-end of the Coloured vote constitutional crisis, the Supreme Court of South Africa severely curtailed its own "testing power" to review acts of the Parliament of South Africa.

[2] During the negotiations to end apartheid, the proper form of judicial review became a central debate in the South African legal establishment.

[iii] Or, as Justice Kate O'Regan put it four years later in Bato Star Fishing v Minister, constitutional principles had become "the grundnorm" of administrative law.

It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.

In subsequent jurisprudence, the Constitutional Court affirmed several grounds of review arising from the legality principle, beyond the narrow ultra vires requirement not to exceed one's lawful powers.

[11][12] Section 8(1) of the Constitution provides that, "The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state."

[17] In the constitutional era, and even before the enactment of PAJA in 2000, administrative action has been subject to stricter scrutiny than other exercises of public power.

[xi] Moreover, in SARFU, the court outlined broad factors to be considered in deciding whether an action is administrative, including the source, nature, and subject matter of the underlying power.

[vi] In Pharmaceutical Manufacturers Association, Justice President Chaskalson found that decisions requiring a "political judgment" (such as the presidential proclamation of an act) are unlikely to be administrative in nature,[iii] and, later the same year in Department of Education v Ed-U-College, Justice O'Regan expanded on the distinction between administrative action and executive policy-making.

Its spread is reassuringly wide: it covers a good deal of the area protected by the administrative justice clause… By telling us that all exercises of public power must comply with standards such as lawfulness, reasonableness and fairness, the principle of legality points away from all this [statutory] conceptualism and parsimony and perversity.

[20][22] Indeed, in 2010 in Albutt v Centre for the Study of Violence and Reconciliation, Justice Sandile Ngcobo wrote for a unanimous Constitutional Court that, in cases where the broader legality principle is capable of resolving a dispute, resort to PAJA is "ancillary" and unnecessary.

[xiii] Four years later, however, in Minister of Defence v Motau, the Constitutional Court held that, "The correct order of enquiry is to consider, first, whether PAJA applies, and only if it does not, what is demanded by general constitutional principles such as the rule of law"; Justice Sisi Khampepe made this observation in an unobtrusive footnote, without acknowledging that it contradicted Albutt.

[xiv][23] Lower courts have had similarly mixed views about whether the principle of legality may properly be applied in place of PAJA in the review of administrative action.

[8][25] However, in cases such as Soobramoney v Minister of Health,[xv] the Constitutional Court deferred to the government's exclusive prerogative to make policy,[26] and some commentators argue that the reasonableness standard is inherently deferential to the political branches.

[vii] In 2019 in President v Democratic Alliance, the opposition Democratic Alliance sought to challenge the dismissal of Finance Minister Pravin Gordhan; the Constitutional Court heard argument on whether the President's appointments to the Cabinet could be subject to judicial review, but the question became moot before judgment was handed down.

[29] In the 2002 matter of United Democratic Movement v President of the Republic, the court reviewed the procedure that had led to the passage of four acts – two statutes and two constitutional amendments – that permitted floor-crossing in South Africa.

[xxii] In 2006, in Doctors for Life v Speaker, the court invalidated two acts on the basis that the National Council of Provinces had failed to fulfil its constitutional obligation to facilitate public involvement in the law-making process.

[xxiii] The breadth and rigour of South African judicial review of internal parliamentary procedures is "highly unorthodox by comparative standards".

Still more controversial was a series of judgments handed down during the second term of President Jacob Zuma, which related to the manner in which Parliament elected to discharge its function of holding the executive branch accountable.

[33] In United Democratic Movement v Speaker, another case involving the National Assembly's internal procedures, the court declined to prescribe a secret ballot in a parliamentary vote of no confidence, but held unanimously that, per Chief Justice Mogoeng:There must always be a proper and rational basis for whatever choice the Speaker makes in the exercise of the constitutional power to determine the voting procedure...

The exercise of that power must be duly guided by the need to enable effective accountability, what is in the best interests of the people and obedience to the Constitution.

[xxvi] Shortly afterwards, in the related matter of Economic Freedom Fighters v Speaker II, the court overturned an unsuccessful motion to impeach Zuma and held that it should be re-run under an improved procedure; in his dissenting opinion, Chief Justice Mogoeng Mogoeng famously called this judgment "a textbook case of judicial overreach".

However, as confirmed in Pretoria Portland Cement v Competition Commission,[xxx] judicial officers performing non-judicial functions may take administrative action which is reviewable under PAJA.

[36] Outlining the tripartite structure of judicial review in 1903, Chief Justice Innes called this form of review the "most usual" form, "the process by which, apart from appeal, the proceedings of inferior courts of justice, both civil and criminal, are brought before this court in respect of grave irregularities or illegalities occurring during the course of such proceedings".

[36] Under section 22(1) of the Superior Courts Act, grounds of such review are absence of jurisdiction on the part of the court; conflict of interest, bias, malice or corruption on the part of the presiding judicial officer; gross irregularity in the proceedings; and the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.