Paul Hjul: The Role of Ordinary Inferior courts in Judicial Review of Administrative Decisions in South Africa

There is an easy way to find the South African legal practitioner (or scholar of South African law) among a cosmopolitan gaggle of legal practitioners and academics: you simply mention “PAJA”. At its mere mention, PAJA can bring about a sense of fear, loathing, glee and confusion all at the same time. The Promotion of Administrative Justice Act is a short but peculiar statute, at its heart it sets forth a statutory basis for the ensuring (“promotion”) of the constitutional and natural rights of justice, as against persons cloaked with the power of the state, who are busy making (or failing to make) administrative decisions.

The general fabric of South Africa’s Constitution – or more pertinently the jurisprudence of the Constitutional Court – has conceptualized the doctrines surrounding the lawful exercise of public power in a way that leads to inevitable head scratching, and “South African administrative law is never dull” (Hoexter, 2017).  PAJA does not apply in toto to every exercise of state power as it is intended to apply to administrative decision making rather than all state power exercises. However there is an undeniable manner in which PAJA impacts and informs (some may say complicates) every exercise of public power and there has been a lengthy unresolved questions of whether a litigant must rely on PAJA where same statute finds application and whether PAJA applies to a given impugned act of public power. Any clarity and certainty provided by the Supreme Court of Appeal in State Information Technology Agency Soc v Gijima Holdings (Gijama SCA)  was jettisoned by the Constitutional Court in State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited (Gijama CC). The Gijama CC decision was handed down after the Hoexter post and has attracted considerable criticism and forms part of a body of decisions of the Constitutional Court which is influencing the tone with which the Court is written and spoken about.

What PAJA intended and in effect achieved was to transform the nature of judicial review and to place the review of all truly administrative decisions into a codified rubric while a new constitutional jurisprudence would need to be applied in judicial review proceedings of matters outside of PAJA’s codification area. The shift in judicial review is not only a product of this statute but rather case law developed in conjunction with the passing of the statute.

The Constitutional Court went to great pains in Pharmaceutical Manufacturers Association of South Africa and Others: In re President of the RSA and Others and Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others to assert that the judicial review is fundamentally a constitutional issue and that “[u]nder the new constitutional order … 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.” (O’Regan, 2017).

Moreover the Constitutional Court took the first opportunity available to it in Bato Star v Minister of Environmental Affairs and Tourism and Others to hold that if PAJA was applicable to a particular quest for judicial review then a complainant was obliged to ground their suit in PAJA – and not rely on either the verboten vocabulary used in the pre-Pharmacutical Manufacturers era or the buzzword infested language of constitutionality. But the vast majority of cases since Bato Star have eroded the instances in which PAJA is applicable. An oddity though is that one of the grounds on which PAJA empowers a judicial review is “the action is otherwise unconstitutional or unlawful” and it is therefore inevitable that creative legal representatives will systematically introduce various additional words, concepts and common-law tests under this section – thereby eroding the codification effect. This has already occurred with respect to “vagueness”  (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others paragraph 246).

A prospective litigant therefore faces a situation in which depending on whether PAJA has application to found the cause of action – or if there isn’t a basis codified in PAJA itself rely on section 6(2)(l) of PAJA and set out the “otherwise unlawful” reason – then they will need to follow PAJA (or persuade the Constitutional Court that PAJA does not find application), and if PAJA does not find application rely on other constitutional language. The extent to which PAJA fleshed out and codified a constitutional right while supplanting the common-law in most but not all instances is the first peculiarity of the statute.

The second peculiarity is that the statute required, in section 7(4) (of the amended statute) that procedures for “judicial review” proceedings would be promulgated by the government (through the mechanism of the Rules Board for Courts of Law) before the March 2009. The required change to the rules of court would replace the existing “Rule 53” practice that the High Courts had been using for judicial review cases of every shape and form. Therefore while PAJA grounds were explicitly excluded from various exercises of constitutional power the procedure created to expedite PAJA would find application in all matters of judicial review in so far as it compelled a change to the procedural rules of all courts. The required rules for PAJA were drawn up and duly challenged by sections of civil society and the legal profession. Lawyers for Human Rights v Rules Board for Courts of Law and Another is an intriguing case in which the court was asked set aside the rules promulgated for the purposes of PAJA by applying PAJA to those rules. The court found that the rule making process impugned was not within a PAJA review and instead applied a broader legality and rationality review. The case is unfortunately one that reflects very poorly on the preparedness and capacity of the Department of Justice and Constitutional Development to promote the proper administration of administrative justice.

In the aftermath of the PAJA rules being found wanting the superior courts have simply continued operating with the extant rules of court which were forged with a common law approach to judicial review of more than a century’s pedigree. Therefore while the substantive law concerning administrative law had taken on a constitutional and PAJA air the procedural nuts and bolts remain on a footing that views judicial review as a consequence of the inherent powers and responsibilities of the superior courts in a common law tradition with the brocard of ubi ius, ubi remedium andview of the duty of the superior courts to ensure the Rule of Law underpinning the entire process. Within this conceptual schema the inferior courts – the system of district and regional magistrates courts[i] – are subjects of judicial review rather than courts able to conduct judicial review. PAJA envisages a change to the monopoly of the “antiquated” High Court in hearing petitions for administrative justice and seeks to modernise the mechanisms of judicial review.

It is undeniable that the rise of the administrative and welfare state requires antiquated and quaint approaches towards judicial review be reconsidered. The United Kingdom has centralized the various quasi-judicial tribunals in the Tribunals, Courts and Enforcement Act of 2007 and the United States federal government has continuously grown the administrative law tribunals presided over by administrative law judges. PAJA (especially since its amendment in 2003) correctly envisages a situation in which reviews of administrative decisions can be conducted in a judicial forum other than the High Court. It performs this both by envisaging the possibility of national legislation establishing tribunals with the power to review administrative decisions taken (presumably for a specific class of administrative decision or in respect of specific administrators) and through a mechanism by which the Minister responsible for the administration of justice is able to designate various magistrates courts as having jurisdiction to hear “specified class of administrative actions” judicial review cases. The introduction of language envisaging the possibility of expanding PAJA to afford magistrates’ courts jurisdiction was accompanied by a section concerning the training and certification of magistrates to be eligible to serve in PAJA courts at the magistrates court level.

For fifteen years the mechanism to capacitate the magistrates court system to attend to specific classes of administrative actions in need of frequent judicial review languished. In 2017 PAJA was amended to remove the training and certification criteria for magistrates to be designated. However the rules required by PAJA to apply to all judicial review matters remained outstanding – unpublished (as of the 2nd October 2019) – and there is, despite a process of rewriting the rules of procedure for the magistrates’ courts in 2010, no provisions giving any procedural mechanisms to be able to address reviews of administrative decisions exist for magistrates courts. (The new rules did however cause considerable disruption and difficulties.)

On the 19th September 2019 the minister issued a designation the all magistrates court – both regional and district – are afforded as of the 1st October 2019 jurisdiction to hear all PAJA matters within their area. The designation has major ramifications for forum shopping and I submit that the promulgation will be a recipe for disaster, not least because the Rules Board has confirmed that the relevant rules have not yet been published. Thus that a backtracking is almost inevitable. However the developments in administrative law in South Africa have all kept us at crossroads and raise a more pertinent question: should (i) courts infused with a new jurisprudence and (ii) legislators infused with a mandate of change, rush to re-frame the system of administrative law within the jurisdiction or is the best interests of the proper administration of justice better served by quaint and apparently antiquated ideas about the Rule of Law and the duty of courts to “stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law” (Liversidge v Anderson).

The final oddity in this expansion of PAJA is that while the notice affording designation on the magistrates courts appears in the Government Gazette and is available online, but it does not appear on the portal (which has been updated to include proclamations made on the same day and subsequent days). It may well be that the government has already backtracked and is deciding whether to seek the review of the designation by a court or whether the minister will simply withdraw the designation. We will still however be a jurisdiction at crossroads from which other jurisdictions can learn.

[i] Within the South African legal and judicial system the vast majority of serious criminal offences are not tried in a superior court. In the 1950’s a decision was taken to establish “regional magistrates courts” to consider minor criminal matters that were beyond the then jurisdiction of the district magistrates courts. Over time what has occurred is that the regional courts have been afforded increasing jurisdiction and a shifting focus to more serious offences such that at present it is only treason which is outside of their remit. The regional magistrate’s court is largely comparable to the Crown Court in the United Kingdom, unlike the Crown Court it is still an inferior court. Since 2010 the regional court has also handled divorce matters with the result that we have a murder, mayhem and matrimony court to complement the now replaced English joining of wives, wills and wrecks in the 19th century.

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