JUDICIAL REVIEWS
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
Judicial reviews can be brought on any issue where an administrative decisions has been made.
The decisions made by the Department of Home Affairs, the Refugee Appeals Authority and the Standing Committee for Refugee Affairs, or the failure to take a decision by one of these bodies, may be reviewed by the High Court of South Africa on the ground:
- that administrative action was procedurally unfair: for instance, where the applicant did not receive the assistance of an interpreter and was not informed of his right to bring an interpreter to assist him [Katshingu v SCRA], where the Appeal Board was not properly constituted [Harerimana v RAB], where the applicant was not given notice of his right to make representations before the Standing Committee or to be heard by the Appeal Board [AOL v Minister of Home Affairs] or where the applicant did not get the opportunity to deal with evidence upon which the rejection was based upon;
- that the rejection was taken in bath faith, arbitrarily or capriciously: for instance where the adverse decision was made after the applicant refused to pay a bribe or provide sexual favours [Khan, F & Scheier, T Refugee Law in South Africa (Juta, 2014) 196];
- that the decision was affected by an error in law: for instance, where an incorrect standard of proof was applied to the facts presented by the asylum seeker [Tantoush v RAB] or where an incorrect application was made in relation to the perpetrators of harm or to the internal flight alternative [Katabana v SCRA];
- that the decision maker was biased, or acted under unwarranted dictatesor that the decision was taken for an ulterior motive: these are fundamental defects which may not be cured by the Appeal Board on appeal [Tantoush v RAB];
- that the decision is based on irrelevant considerations orrelevant considerations were not considered: the failure to take up-to-date and relevant information on the situation prevailing in the country of origin and on the applicant’s personal situation is ground for review [Katshingu v SCRA];
- that the decision is unreasonable: the failure to consider relevant information, together with the consideration of irrelevant information, is indicative that the decision maker failed to apply his mind to the application [Katshingu v SCRA]. In Katabana v SCRA, the court held that, in light of the evidence, the decision taken could not berationally related to the facts as presented.
For the rights to just administrative action to be more than just rights on paper, there must be a way to enforce them. The most important way in which these rights can be enforced is by judicial review. This means that any person who is unhappy with an administrative decision can challenge the decision in court. There, they can argue that the decision is a violation of the rights to just administrative action. If the court finds that the decision is unlawful, unreasonable or procedurally unfair it can make any of a number of possible orders to rectify the situation. These include:
- An order declaring the administrator’s decision invalid;
- Ordering the administrator to reconsider the decision;
- Replacing the decision with the court’s own decision; and
- Ordering the government to pay damages to the affected person.
- Exhaustion of internal remedies
Before someone can ask a court to review an administrative action, there is an important rule in the PAJA that must be complied with – the rule of exhaustion of internal remedies. This means that, where the law sets out procedures allowing someone to review or appeal a decision of the administration, these must be used up before an affected person can approach a court. A person can therefore only ask for judicial review as a last resort. This is dealt with in section 7 (2) of the PAJA.
Internal remedies are ways of correcting, reviewing or appealing administrative decisions using the administration itself. The difference between internal remedies and the remedy of judicial review is that the judicial review is review by a court, which is independent from the administration.
- What is the time limit for judicial review?
One of the most important rules in the PAJA is that an application for judicial review must be made within 180 days of the date on which all internal remedies were exhausted.
Where there are no internal remedies available, the application must be made within 180 days of the date on which the applicant became aware of the decision (or could reasonably be expected to have become aware of the decision).
A person who asks for judicial review after this period will not be successful, unless they can convince the court to that it is “in the interests of justice” to allow it.
- The grounds on which administrative action can be reviewed
The Constitution says administrative action must be lawful, reasonable and procedurally fair. Section 6 of the PAJA gives more detail about these requirements. It sets out a list of “grounds” on which courts can review administrative action.
We will now look at some of these grounds in more detail:
- Lack of authority and unlawful delegation – Section 6(2)(a)(I) and (ii)
Administrators must obey the law and must have authority in law for their decisions. If administrators make decisions that are not allowed by law, they have acted “unlawfully” and their decisions will be invalid. In most cases, administrators need to be able to show a specific law that gives them the authority to perform an administrative action. In general, without legislative authority, administrators are not authorised to make decisions and take administrative action.
The law will often put certain conditions on this authorisation. Many laws require a decision to be made by an official of a certain rank or with certain qualifications. If such a decision is made by someone without these qualifications, they will have acted without authority. For example, if a law says an official who makes a particular decision must have a legal qualification, a decision made by someone without a legal qualification will not be authorised.
Unauthorised delegation is a similar idea. If a law says a decision must be made by a particular official, then only that official can make that decision. This official cannot delegate the power to make the decision to anyone else.
- Bias – Section 6 (2)(a)(iii)
Administrators must use their power without bias. “Bias” means that the person making the decision is unfairly slanted towards or in favour of a particular person or decision. It means too that the person making the decision is not independent and impartial.
There are two types of bias: actual bias and apparent bias. Both types make an administrative decision invalid. This is explained by the saying that “justice must not only be done but must also be seen to be done”. Even if the administrator is not actually biased against a particular person or decision, they act without authority if it reasonably appears that they are biased. That is, if a reasonable member of the community could think that the administrator is biased, this will be apparent bias and procedural fairness will not have been complied with.
The circumstances that usually create such an impression are where there is a conflict of interest. This could be a monetary interest, a personal interest or a prejudice.
Where it could appear that a particular administrator might be biased, it is best to get some other administrator to make the decision.
iii. Failure to comply with a mandatory and material procedure – Section 6 (2)(b)
Empowering provisions often require certain procedures to be followed, or certain conditions to be met, before action is taken. If this is not done, any further decisions will not be authorised. For example, if a law says that notice must be given to a licence-holder before the licence is withdrawn, it will not be lawful to withdraw the licence unless notice has been given.
- Procedural fairness – Section 6 (2)(c)
We have already looked at procedural fairness in detail when we looked at the requirements of Sections 3 and 4 of the PAJA. Failure to follow fair procedures before taking a decision will allow people affected by it to ask a court to declare the decision invalid.
- Error of law – Section 6 (2)(d)
Where administrative action is based on a mistake about what the law requires, a court may set the action aside.
- Review of the decision-making process – Section 6 (2)(e)(I) – (vi)
Discretionary powers must be used within the law. They must also be used for the purposes that they were given. Decisions can only be taken for reasons allowed by law and not for other reasons.
When the administrator is using discretion, they can only take relevant factors into account. If relevant factors are not considered, or irrelevant factors taken into account, then the decision is not taken for good reason. In such a case, a court can review the decision.
Discretionary powers must be used by the person given these powers and not by others.
vii. Rationality and reasonableness – Section 6(2)(f) and (h)
Administrative action must be reasonable and rational. Briefly, this means that the action taken must make sense given the information that is available to the person who makes the decision to take the action.
- What happens when an administrative action is taken to court?
The person who takes the administrative action to court (the Applicant) will issue a “notice of motion”. This is a notice to the other side (the Respondent) that a court action is being started. The Applicant will attach affidavits and other relevant documents to the notice of motion. This notice of motion will be served on the administrator (who will be the Respondent in this matter).
There can be more than one Respondent in any matter. For example, they might be the relevant Minister, the Director-General, and the person who made the decision.
The Respondent (or Respondents) must deliver all documentation and records regarding the administrative action to the relevant registrar or clerk of the court within 15 court days (working days).
As the decision maker, the administrator may also be required to make an affidavit explaining the circumstances and factors taken into account when making the decision.
The court may then grant any order that is just and equitable.
Section 8 of the PAJA deals with the remedies in detail:
(1) The court or tribunal, in proceedings for judicial review in terms of section 6 (1), may grant any order that is just and equitable, including orders-
(a) directing the administrator-
(i) to give reasons; or
(ii) to act in the manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular manner;
(c) setting aside the administrative action and-
(i) remitting the matter for reconsideration by the administrator, with or without directions; or
(ii) in exceptional cases-
(aa) substituting or varying the administrative action or correcting a defect resulting from the administrative action; or
(bb) directing the administrator or any other party to the proceedings to pay compensation;
(d) declaring the rights of the parties in respect of any matter to which the administrative action relates;
(e) granting a temporary interdict or other temporary relief; or
(f) as to costs.
(2) The court or tribunal, in proceedings for judicial review in terms of section 6 (3), may grant any order that is just and equitable, including orders-
(a) directing the taking of the decision;
(b) declaring the rights of the parties in relation to the taking of the decision;
(c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or
(d) as to costs.
Accountability, Responsiveness, Openness and Transparency
- Accountability means that officials must explain the way in which they have used their power. They must be able to justify their decisions.
- Responsiveness. A responsive government is one that listens to the people it governs and responds to their needs. An unresponsive government ignores and shuts itself off from the people. Many of the provisions of the PAJA are designed to promote responsiveness. For example, section 4 says administrators must consult the public before important decisions are taken.
- Openness. Openness is the opposite of secrecy. The way government works should be open for all to see. Decisions are more likely to be supported by people if they can see, understand and contribute to the process of decision-making. This is why the PAJA says reasons must be given for decisions.
- Transparency. Transparency is mentioned in s 195 of the Constitution as one of the basic principles of the public administration.
Bias and Prejudice:
Bias is when the administrator favours one person over others unfairly.
Prejudice is where the administrator is, unfairly and without reason, against someone.
Lawful means that administrators must obey the law and must be authorised by law for the decisions they make.
Reasonable means that the decision taken must be justifiable – there must be a good reason for the decision.
Fair procedures means that decisions should not be taken that have a negative effect on people without consulting them first. Also, administrators must make decisions impartially. To ensure fairness, the PAJA sets out procedures that administrators must follow before they make decisions.
Monetary interest: If there is the possibility that a decision-maker could make money out of the decision, it is reasonable to suspect that they will be biased.
Personal interest: Decision-makers will have a conflict of interest and could be reasonably suspected of bias if they have to make decisions about someone with whom they have a personal or family relationship.
Prejudice: Is a form of pre-judgement of an issue.
A decision-maker will be reasonably suspected of prejudice if, for example, they have expressed strong views on a particular subject in the past.
In Saidi v DHA, the Constitutional Court has declared that pending finalisation an application for judicial review, the Department of Home Affairs has the power, and the obligation, to issue or extend temporary asylum permits (section 22 permits) to the asylum seeker who is challenging, either a decision by the Standing Committee for Refugee Affairs confirming a decision to reject a claim for refugee as being manifestly unfounded, fraudulent or abusive, or a decision by the Refugee Appeal Board not to grant refugee status.
Section 12(3) of the Refugee Regulations, 2018 reads that “an asylum seeker visa may be issued to a failed asylum seeker upon service of a notice of motion indicating an application for judicial review: Provided that such visa may be issued for a period not exceeding 30 days at a time”.
The Western Cape High Court ruled on 21 September 2016 that there is no express provision in either the Immigration Act or the Refugees Act barring a failed asylum seeker, i.e. one whose application for asylum has been rejected or withdrawn, from subsequently making an application for temporary residence rights in terms of the Immigration Act [Ahmed v DHA].
On 26 September 2016, this decision was overturned by the Supreme of Appeal which ruled that asylum seekers may not, while they are in SA, apply for a temporary residence visa.
However, on 09 October 2018, the Constitutional Court decided that imposing “a blanket ban of asylum seekers from applying for [temporary] visas without provision for an application under section 31(2)(c) of the Immigration Act […] is invalid” and that prohibiting “asylum seekers from applying for permanent resident permits while inside the Republic of South Africa is invalid”.