April 12

Kate O’Regan: The Constitution and Administrative Law: Insights from South Africa’s constitutional journey

The constitutional transition that took place in South Africa between 1994 and 1997 swept away the constitutional and legal structures upon which the apartheid state had been based. Not only did South Africa adopt the principle of universal suffrage, but it also adopted a supreme constitution, founded on the principle that the exercise of all public power had to be consistent with the Constitution, and the courts, and the Constitutional Court, in particular, were given the power to uphold and protect the Constitution, including the rights entrenched in the Bill of Rights.  One of the rights in the Bill of Rights was the right to administrative justice (See the South African Constitution 1996).

Initially, perhaps, it was not appreciated that the new Constitution would have fundamental implications for judicial review of administrative action, but it is now clear that the new Constitution has initiated significant changes in this area of the law. There are at least three important aspects to these changes.  The first concerns the legal source of the courts’ power to review administrative action. The second relates to the legislative codification of the grounds of judicial review within the framework of the constitutional right to just administrative action. And the third involves the conception of the separation of powers that informs the reasoning in judicial review decisions.

The question as to the legal source of the courts’ power to review administrative action arose early in the new constitutional era, partly as a result of the manner in which the jurisdiction of the Constitutional Court and the Supreme Court of Appeal were constitutionally regulated in the early years. In an early case, Pharmaceutical Manufacturers Association of South Africa and Others: In re President of the RSA and Others, the Constitutional Court had to determine whether judicial review of administrative action under the common law was separate from constitutional review under the new Constitution. The Constitutional Court held that it was not, reasoning that “[t]he control of public power by the courts through judicial review is and always has been a constitutional matter” and “[t]he 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.” (See para 33.)

The reasoning of the Constitutional Court echoed a debate about the source of the power of judicial review in the United Kingdom at the turn of the millennium.  Broadly speaking, contributions to that debate may be divided into two camps. The first group asserts that the courts’ powers of judicial review are rooted in the doctrine of ultra vires, in terms of which the grounds of review are impliedly intended by Parliament when it enacts the primary legislation.  If this were not the case, the argument goes, the consequence would be a grave erosion of the doctrine of parliamentary sovereignty.  The alternative view is that courts develop and determine the scope and principles of judicial review in terms of the common law, subject to any clear limitations imposed by Parliament. This view thus asserts a concept of “shared sovereignty” between Parliament and the courts in terms of which courts develop the principles of judicial review, not because Parliament authorises them to do so, but as a result of their own constitutional role.

Under the new constitutional order, the South African Constitutional Court has held that the legal authority for judicial review lies in the new Constitution itself, not in the doctrine of ultra vires, nor in the common law. The new constitutional order thus wrought a fundamental shift in the legal foundation of judicial review.

The second fundamental change lay in the Constitution’s entrenchment of the right to administrative action “that is lawful, reasonable and procedurally fair” (See section 33 of the Constitution). As importantly, the Constitution put Parliament on terms to enact legislation to give effect to the right to administrative justice and Parliament accordingly enacted the Promotion of Administrative Justice Act, 3 of 2000 (PAJA).   PAJA contains a definition of administrative action, a set of requirements for procedural fairness, provisions regulating public inquiries and the giving of reasons by administrators, and a list of the grounds of judicial review, which include many if not all the common-law grounds.  It is, in effect, a codification of judicial review and the Constitutional Court in another early case, Bato Star v Minister of Environmental Affairs and Tourism and Others, held that litigants must plead their cases in PAJA, and not on the constitutional right to just administrative action. The Court noted that PAJA “…divulge[s] a clear purpose to codify the grounds of judicial review of administrative action as defined in PAJA” and “[t]he cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past” (See para 25).

There is an issue of deep constitutional principle here. The Constitution required the enactment of legislation to give effect to s 33.  PAJA is that legislation. When litigants bypass that legislation and found causes of action on the basis of s 33, or perhaps on the basis of the common law alone, they ignore the constitutional framework.

The third area where the Constitution heralded profound change in the field of administrative law relates to the doctrine of the separation of powers. This doctrine is a powerful principle in the field of administrative law, although its precise contours are often hard to discern. One of the problems with the doctrine for administrative lawyers is where the modern bureaucracy should be fitted into the doctrine’s traditional tripartite division between executive, legislature and judiciary.  Indeed, as Justice Jackson put it in a dissent in the US Supreme Court, administrative agencies

“… have become a veritable fourth branch of government, which has deranged our three-branch legal theories … Administrative agencies have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion required, in order to validate their functions within the separation-of-powers scheme of the Constitution.  The mere retreat to the qualifying quasi is implicit with confession that all recognised classifications have broken down, and ‘quasi’ is a smooth cover which we draw over our confusion as we might use a counterpane to cover a disordered bed.”   (FTC v Ruberold Co 343 US 470 (1952) at 487 – 488)

The failure to account for the administrative state compromises the classic account of the separation of powers as a principle of administrative law. Without a coherent conception of the separation of powers, and an account of the proper role of the courts in relation to the administration, it is unlikely that a system of judicial review will be both constitutionally appropriate and doctrinally coherent.

The South African constitutional transition makes clear that while the principle of the separation of powers is constitutionally important, its content is not fixed and immutable, regardless of constitutional framework, or history or political culture.  The shift away from a constitution based on parliamentary sovereignty in South Africa had an ineluctable effect on the doctrine of the separation of powers. For the content of the separation of powers is determined in the first place by constitutional structure and the powers of and relationships between the different branches of government.

Accordingly, when a constitutional framework undergoes fundamental change, as it has in South Africa, the conception of the separation of powers requires recalibration. The new Constitution in South Africa replaced parliamentary sovereignty with constitutional supremacy. It was a seismic upheaval that destabilised the traditional approach to the separation of powers. If courts are not subordinate to Parliament or the Executive, what are the appropriate bounds of their jurisdiction? A new conception of the separation of powers is needed to answer such questions and the courts have been striving to develop one, based on the constitutional text, framework and values, and responsive to the difficult questions that have arisen in the cases.

The constitutional journey that administrative law began in April 1994 is continuing. Judicial review in most cases is now based on a statute, PAJA, whose provisions must be interpreted in the light of the Constitution, and, in particular the right to just administrative action.  Existing rules and principles, such as the separation of powers, need to be critically examined and re- assessed in the light of the new constitutional framework. Yet, of course, the manner in which the principles of judicial review are developed by the courts is incremental and gradual. There is an iterative interplay between fact-bound individual cases, legislative provision and broad constitutional principle. It is not surprising then that only twenty years into South Africa’s new constitutional order, the process of recalibrating judicial review of administrative action is ongoing.

This blogpost draws on this year’s Bentham lecture “A Constitutional Journey: Judicial Review of Administrative Action in Post-Apartheid South Africa” (9 March 2017).


Kate O’Regan is the Director of the Bonavero Institute of Human Rights, Faculty of Law at the University of Oxford.