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Minister of Health andAnother v New ClicksSouth Africa (Pty) Ltd andOthers CCT 59/04 (as yetunreported), 30September 2005 (CC)Introduction

This case involves regulations made by theMinister of Health on the recommendation ofthe medicines pricing committee in terms of theMedicines and Related Substances Act 101 of1965 (as amended) (the Medicines Act). Theregulations purported to regulate the price atwhich medicines moved along the distributionchain from manufacturers or importers of med-icines to consumers. The ultimate aim of theregulations was to make medicines moreaffordable to the public.1 The regulations werechallenged in the Cape High Court in two sep-arate applications, by New Clicks and a num-ber of pharmaceutical retailers represented bythe Pharmaceutical Society of South Africa (thePharmacies). The cases were consolidatedand heard together.2 The majority of the HighCourt upheld the regulations and dismissed theapplication, while the minority agreed with thePharmacies.3 The Pharmacies then appealedto the Supreme Court of Appeal (SCA). TheSCA overturned the judgment of the majority inthe High Court, holding the regulations in their

entirety to be unconstitutional and invalid. Thecourt accordingly set the regulations aside.4

The Minister of Health and the Chairperson ofthe pricing committee applied for leave toappeal to the Constitutional Court. The appli-cation was argued before the Court on 15 and16 March 2005, and judgment was deliveredon 30 September 2005. Judgments on theissues in the case were prepared by five of theeleven judges, while three judges wrote shortjudgments indicating their views on the mainjudgments. A separate judgment summarisingthe findings and giving the order was preparedby the Court. Four of the five main judgmentsexpressed views on the Promotion ofAdministrative Justice Act 3 of 2000 (PAJA).Five of the judges hold that PAJA is applicableto the dispute (Langa DCJ, O’Regan J and Vander Westhuizen J concurring in the judgmentsof Chaskalson CJ and Ngcobo J), five hold thatthe question of its applicability need not beanswered (Madala J, Mokgoro J, Skweyiya Jand Yacoob J concurring in the judgment ofMoseneke J), while one judge holds that it isapplicable only to certain of the issues raisedby the dispute (Sachs J).

Views of the courts below

Both the High Court and the SCA saw the mak-ing of recommendations by the pricing commit-tee and the passing of regulations by theMinister to be separate processes, to be evalu-ated separately against the principles ofadministrative justice. The majority in the HighCourt held that neither the recommendationsnor the regulations themselves fell within thedefinition of ‘administrative action’ in PAJA.5

The minority disagreed, holding that PAJAapplied to both processes.6 The minority addedthough, that the applicability of PAJA made nodifference, and agreed with the majority thatthe processes were reviewable under the com-mon law and sections 1 and 33 of theConstitution.7

CASE LAWTHE PROMOTION OF

ADMINISTRATIVEJUSTICE ACT (PAJA)

1 Minister of Health and Another v New Clicks SouthAfrica (Pty) Ltd and Others CCT 59/04 (as yet unreport-ed), 30 September 2005 (‘New Clicks CC’), at para 1.

2 New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO; Pharmaceutical Society ofSouth Africa and Others v Minister of Health andAnother 2005 (2) SA 530 (C) (‘New Clicks CPD’).

3 Discussed in the March-September 2004 edition of thePAJA Newsletter.

4 Pharmaceutical Society of South Africa v Tshabalala-Msimang and Another NNO; New Clicks South Africa(Pty) Ltd v Minister of Health and Another 2005 (3)SA 238 (SCA); 2005 (6) BCLR 576 (SCA) (‘NewClicks SCA’).

5 New Clicks CPD (per Yekiso J), at paras 34-43, 48-49.6 New Clicks CPD (per Traverso DJP), at paras 32-39.7 Id, at paras 52-58. See the majority judgment (per

Yekiso J) at paras 44-45, 50, 69.

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The SCA declined to answer the questionwhether PAJA applied to either the making ofrecommendations or to the regulations them-selves. The court agreed with the minority’sview that it made no difference whether PAJAapplied or not, and decided the case on thebroader constitutional principle of legality.8

The judgment of the ConstitutionalCourt

The judgment of the Court lists the principalissues and the conclusions reached by theCourt. The list includes a summary of the con-clusions relating to the applicability of PAJA:

‘Does the Promotion of Administrative Justice Act,3 of 2000 (PAJA) apply to the recommendations ofthe Pricing Committee and the subsequent mak-ing of regulations by the Minister? Five membersof the Court hold that PAJA is applicable. Onemember of the Court holds that PAJA is applicableto the fixing of the dispensing fee only; and fiveother members of the Court hold that it is not nec-essary to decide whether PAJA is applicable,since on the assumption in favour of thePharmacies that it is, they find the procedure fol-lowed to have been fair.’9 (footnotes omitted)

It is to be seen immediately that there is a slightmajority insofar as PAJA’s applicability to thequestion of the dispensing fee. More than this,there is little that emerges immediately fromthe judgment. The various judgments of themembers of the Court must be examinedbefore the precedential impact of the judgmentis revealed.

There are two levels at which PAJA is engagedwith in the judgments. The first involves thegeneral question of whether the applicability ofPAJA is an issue that needs to be determinedat all in this case. If it must be decided at thefirst level that PAJA applies or that it doesn’t,the second level then confronts the more spe-cific question of whether PAJA applies to regu-lations.

Can PAJA be avoided?

Chaskalson CJ’s judgmentThe first point of difference to be notedbetween Chaskalson CJ’s view and that of the

courts below relates to the process authorisedby the Medicines Act. Chaskalson CJ holdsthat the process contemplated by theMedicines Act is a single process, albeit withtwo distinct stages.10 The two stages togetheramount to a joint decision of the Minister andthe pricing committee, and it is this joint deci-sion that is the action to be reviewed:

‘In the circumstances of the present case, to viewthe two stages of the process as unrelated, sepa-rate and independent decisions, each on its ownhaving to be subject to PAJA, would be to put formabove substance.’11

‘The Pricing Committee’s work on the regulationswas continuing and ongoing until the Ministeragreed. In substance the decision to make theregulations was, and had to be, a joint decision ofthe Minister and the Pricing Committee.’12

Chaskalson CJ centres the investigation of thefirst-level question around an examination ofthe relationship between PAJA and theConstitution. Section 33(3) of the Constitution,he notes, required national legislation to beenacted to give effect to the rights enumeratedin section 33. PAJA was the legislation passedto comply with this requirement, and it address-es the four substantive rights listed in section33: rights to lawful reasonable and procedural-ly fair administrative action, and the right toreasons for administrative action.13 With refer-ence to Bato Star,14 Chaskalson CJ says thatPAJA was required by the Constitution to coverthe field of administrative justice, and purportsto do so.15 The conclusion to be drawn, there-fore, is that

‘[a] litigant cannot avoid the provisions of PAJA bygoing behind it, and seeking to rely on section33(1) of the Constitution or the common law. Thatwould defeat the purpose of the Constitution inrequiring the rights contained in section 33 to begiven effect by means of national legislation.’

Chaskalson CJ holds, therefore, that it is nec-essary to decide if the regulation-makingprocess amounted to administrative action

8 New Clicks SCA, at para 94. 9 New Clicks CC, at para 13(4).

10 Id, at paras 136-142.11 Id, at para 137.12 Id, at para 141.13 Id, at para 143.14 Bato Star Fishing (Pty) Ltd v Minister of Environmental

Affairs and Others 2004 (4) SA 490 (CC); 2004 (7)BCLR 687 (CC), at para 25.

15 New Clicks CC, at para 95.

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within the meaning of PAJA. Following thedecision in Bato Star,16 if PAJA is applicable,then the case must be decided with referenceto its provisions.

Ngcobo J’s judgmentThe conclusions reached by Ngcobo J squarewith Chaskalson CJ’s. His reasoning followsmuch the same lines, focussing on the rela-tionship between section 33 and PAJA. In addi-tion, though, he refers to the principle of ourlaw that the practical exercise of administrativejustice is grounded in the Constitution. To allowlitigants to rely alternately on the Constitutionand legislation enacted to give effect to rightsin the Constitution would result in the develop-ment of two streams of law. This would beinconsistent with the views of this court thatthere are not two systems of administrativelaw, one under PAJA and one under theConstitution and the common law, ‘but only onesystem of law grounded in the Constitution.’17

In reaching this conclusion Ngcobo J relies onthe dicta of several judgments. In NAPTOSAand Others v Minister of Education, WesternCape, and Others18 the Cape High Court con-sidered whether a party could seek reliefdirectly under section 23(1) of the Constitutionwithout relying on the Labour Relations Act 66of 1995 (LRA). One of the primary objects ofthe LRA is to give effect to and regulate the fun-damental labour rights conferred by theConstitution.19 The court held that a litigant can-

not go beyond the provisions of the LRA exceptby arguing that the provisions of the LRA arethemselves inconsistent with the Constitution.It would be ‘singularly inappropriate’, the courtwent on, if labour law jurisprudence were todevelop on one hand in respect of section 23,and on the other hand in respect of the LRA.20

In Ingledew the Constitutional Court referred toNAPTOSA, but went only as far as to say thatit is doubtful that a party will be able to relydirectly on the Constitution where there is astatutory provision dealing with a matter.21

Ngcobo J concludes that reliance on section33(1) of the Constitution and the common law,where PAJA – enacted to give effect to section33 – is applicable, is inappropriate.22 The con-clusion is inescapable that where constitution-al rights to administrative justice are sought tobe enforced before a court, the court mustdetermine if PAJA is applicable or not. This isthe ‘threshold question that must be decided’.23

Sachs J’s judgmentAlthough Sachs J’s view is that the judicial con-trol of subordinate legislation should generallybe based on the constitutional principle oflegality, he nevertheless confronts the questionof whether PAJA should be applied. Sachs Jagrees explicitly with the conclusion ofChaskalson CJ and Ngcobo J that if PAJA isapplicable, ‘there is no scope for bypassing it.’24

Sachs J’s argument is that review of subordi-nate legislation according to the principle oflegality fits into the constitutional scheme regu-lating public power, and ‘corresponds moredirectly with the reality of the national polity.’25

The ‘shoe’ of section 33 and PAJA is too tightto provide an adequate and appropriate meansfor the constitutional control of legislation.

Although Sachs J takes a different view toChaskalson CJ and Ngcobo J on the actualapplication of PAJA to the facts of the case –the second level question – he does agree with

16 Above n 14, at para 26.17 Bato Star, above n 14 at para 22, cited by Ngcobo J at

para 436. See also Pharmaceutical ManufacturersAssociation of SA and Another: In re Ex parte Presidentof the Republic of South Africa and Others 2000 (2) SA674 (CC); 2000 (3) BCLR 241 (CC) at paras 33-45.

18 2001 (2) SA 112 (C).19 Section 1 of the LRA reads :

‘The purpose of this Act is to advance econom-ic development, social justice, labour peaceand the democratisation of the workplace byfulfilling the primary objects of this Act, whichare –

(a) to give effect to and regulate the fun-damental rights conferred by section 27 ofthe Constitution’.

The rights contained in section 27 of the interimConstitution now appear in section 23 of the finalConstitution. The preamble to PAJA indicates a similarobject:

‘To give effect to the right to administrativeaction that is lawful, reasonable and procedu-rally fair and to the right to written reasons foradministrative action as contemplated in sec-tion 33 of the Constitution’

20 NAPTOSA, above n 18 at 123B-I, cited by Ngcobo J atpara 434.

21 Ingledew v Financial Services Board: In re FinancialServices Board v Van der Merwe and Another 2003 (4)SA 584 (CC); 2003 (8) BCLR 825 (CC) at para 24, citedby Ngcobo J at para 435.

22 New Clicks CC, at para 436.23 Id, at para 421.24 New Clicks CC, at para 586.25 Id, at para 585.

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them on the first level question. Altogetherthen, six members of the Court – a majority–reach two important conclusions at the firstlevel. The first is that where relief is sought interms of section 33 of the Constitution, theparty seeking such relief must look for it in theterms of PAJA. It is only where an allegation ismade that PAJA is inconsistent with the termsof section 33 that reliance could be placeddirectly on section 33. The second conclusionflows from this. It must be decided in everycase where relief is sought under constitution-al rights to administrative justice, whetherPAJA is applicable or not. Because PAJA andsection 33 together represent the entirety ofrights to administrative justice (no rights wereconferred by section 33 until PAJA had beenenacted), no rights in terms of section 33 canbe accessed in the absence of reliance on, orwithout reference to PAJA.

Moseneke J’s judgmentMoseneke J disagrees with the view sum-marised so far that it is necessary to decidewhether PAJA applies or not. He holds that it isunnecessary to decide ‘whether the tenets ofadministrative justice under the Constitutionand PAJA apply to ministerial regulation-mak-ing.’26 In giving reasons for this position,Moseneke J distinguishes this case from BatoStar. In that case, he says, the Court appliedPAJA because it was common cause that thedecision under review amounted to administra-tive action. The scope of the definition ofadministrative action was therefore not anissue in that case. In this case, however, theparties take issue over whether ministerial reg-ulation-making and the recommendations ofthe pricing committee are properly governed byPAJA or not. In the face of this dispute,Moseneke J finds it ‘neither prudent nor neces-sary’ to decide the complex and contestedissues of the appropriate level of review of min-isterial rule-making.27 Moseneke J goes on:

‘I am well aware that there may be compelling rea-sons for holding ministerial regulation-makingreviewable under PAJA. The difficulty is that thereare at the very least equally persuasive consider-ations that ministerial legislation is not administra-tive action and does not fall within PAJA but is con-

trolled and limited by the Constitution and legisla-tion that confers the power to the minister con-cerned.’28

And concluding his views on PAJA:

‘Given the conclusion I have arrived at on the factsI need not decide the issue. I shall, however,assume without deciding that the administrativejustice standard of lawfulness, reasonablenessand procedural fairness espoused by theConstitution is given legislative effect in PAJA andthat it applies to the recommendation of thePricing Committee and to ministerial regulation-making.’29

Conclusions on whether PAJA’s applicabilitymust be settled in every caseBy a slim majority of six to five, the Court holdsthat PAJA must be applied in every case whereit is applicable. It is therefore an unavoidablethreshold question whether PAJA or not appliesto the facts of a specific case.

Does PAJA apply to ministerial regula-tion-making?

Chaskalson CJ’s judgmentSection 1 of PAJA establishes a definitionaldoor through which every exercise of publicpower must pass before it can be reviewed.PAJA requires that ‘administrative action’ mustbe procedurally fair (section 3), reasons mustbe provided for ‘administrative action’ (section5), and a person may institute review of ‘admin-istrative action’ on a number of grounds (sec-tion 6).30 The relevant parts of the definition insection 1 indicate that ‘administrative action’means a decision, taken either by an organ ofstate or a person or body performing a publicfunction, which ‘adversely affects the rights ofany person and which has a direct, externallegal effect’. The definition does, however,exclude from its reach a number of actionsincluding those related to the powers of thenational, provincial and municipal executive.Chaskalson CJ’s approach to the definitionalrequirements set by PAJA separates them intofour parts.

26 Id, at para 671.27 Id, at para 722.

28 Id, at para 723.29 Id, at para 724.30 Sections 3 and 5 require further factors, relating to the

effect of administrative action, to be present beforePAJA applies. These are not relevant for present pur-poses.

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i) Organs of stateSection 1 of PAJA assigns to ‘organ ofstate’ the meaning it is given in section 239of the Constitution. That definition includesnot only ‘any department of state or admin-istration in the national…sphere of govern-ment’, but also ‘any other functionary orinstitution exercising a public power or per-forming a public function in terms of anylegislation’. Chaskalson CJ has no difficul-ty in concluding that both the Minister andthe pricing committee are organs of state.31

ii) Action adversely affecting rights, with adirect external legal effect.Chaskalson CJ similarly has no hesitationin concluding that the regulation of priceswill adversely affect the rights of pharma-cists and other persons involved in thepharmaceutical industry.32 AlthoughChaskalson CJ does not go into any detailin considering the requirement of a ‘direct,external legal effect’, he does state that theregulations did have such an effect.33 Thejudgment seems to suggest that a direct,external legal effect can be inferred fromthe fact that rights were adversely affected.It is not clear what the phrase means,exactly,34 but it seems to flow from the judg-ment that, at least where rights areadversely affected, the requirement willhave been met.

This part of Chaskalson CJ’s judgment isconcurred in explicitly by Langa DCJ35 andO’Regan J.36 In deciding that PAJA appliesonly to the narrow question raised in thiscase, Ngcobo J aligns himself with the rea-sons given by Chaskalson CJ for decidingthat ministerial regulation-making generallyis subject to PAJA.37 Ngcobo J must beseen, therefore, to concur in this part ofChaskalson CJ’s judgment as well. Van der

Westhuizen J concurs in Ngcobo J’s judg-ment.38 Sachs J does not agree with theapproach of Chaskalson CJ and Ngcobo J,except to a limited extent, and does not sayanything about the ‘direct, external legaleffect’ requirement; while the remainingfive of the judges do not engage the defini-tional questions raised by PAJA at all. Tothe extent that this part of Chaskalson CJ’sjudgment is not controverted by other judg-ments, it must be seen as an authoritativestatement on the issue.

iii) A decisionHaving decided that the above require-ments were met, Chaskalson CJ states thatthe regulations will be ‘administrativeaction’ for the purposes of PAJA if makingregulations constitutes a ‘decision’ that isnot excluded by subparagraphs (aa)-(ii) ofthe definition.39 In deciding that a ‘decision’was made by the Minister and the pricingcommittee, Chaskalson CJ reviews themajority’s reasoning in the High Court.

That ministerial regulation-making is notexplicitly referred to in PAJA’s definition of‘decision’ was important to the majority’sconclusion that it does not constituteadministrative action.40 Chaskalson CJ

31 New Clicks CC at para 121.32 Id.33 Id, at para 135.34 It has been pointed out that the phrase was imported

into PAJA from German law at the eleventh hour of itsdrafting, and is not clearly defined in South African law.See Hoexter, The New Administrative Law, p 107; Pfaffand Schneider ‘The Promotion of Administrative JusticeAct from a German Perspective’ (2001) SAJHR 59.

35 New Clicks CC at para 843.36 Id at para 846.37 Id at para 422.

38 Id at para 851.39 New Clicks CC at para 121.40 New Clicks CPD at para 48. A ‘decision’ is defined as

‘any decision of an administrative nature made, pro-posed to be made, or required to be made, as the casemay be, under an empowering provision, including adecision relating to-

(a) making, suspending, revoking or refusing tomake an order, award or determination;

(b) giving, suspending, revoking or refusing togive a certificate, direction, approval, consentor permission;

(c) issuing, suspending, revoking or refusing toissue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or require-ment;

(f) retaining, or refusing to deliver up, an article;or

(g) doing or refusing to do any other act or thingof an administrative nature, and a referenceto a failure to take a decision must be con-strued accordingly’.

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does not agree with this view. On the plainmeaning of the definition he concludes it iswide enough to cover the making of regu-lations. The definition refers to ‘any deci-sion of an administrative nature’ and to‘doing or refusing to do any other act orthing of an administrative nature’.41 Anotherreason advanced by the majority in theHigh Court for its view was the exclusion of‘any decision taken, or failure to take adecision, in terms of section 4(1)’ from thedefinition of administrative action. Themajority held that the regulations affectedthe public and thus constituted a decisionin terms of section 4(1) of PAJA.Chaskalson CJ points out two reasons thatthis view is wrong. First, section 4 onlycomes into play once the action at issuefalls into the definition of administrativeaction to begin with.

‘The fact that the choice of a particular procedureto be followed in terms of section 4(1) is not itselfsubject to review, does not provide any help indeciding what is or is not “administrative action”.’42

Second, the majority was wrong as far asthe content of the exclusion. It is not alladministrative action affecting the publicthat is excluded from the definition ofadministrative action. Section 4(1) requiresadministrators taking action affecting thepublic to comply with the requirements ofprocedural fairness, but authorises them todecide how those requirements will be met.It is only this latter decision that is excludedfrom the definition of administrativeaction.43

iv) The exclusionsSubparagraph (aa) of the definition ofadministrative action excludes from thatdefinition

‘the executive powers or functions of the NationalExecutive, including the powers or functionsreferred to in sections 79 (1) and (4), 84 (2) (a),(b), (c), (d), (f), (g), (h), (i) and (k), 85 (2) (b), (c),(d) and (e), 91 (2), (3), (4) and (5), 92 (3), 93, 97,98, 99 and 100 of the Constitution’.

Of the sections of the Constitution listed in thesubparagraph, only section 85, dealing with thepowers of the President and Cabinet is rele-vant. It is further relevant that only sections85(2)(b)-(e) are listed in the exclusion. Section85(2)(a) states that the President and Cabinetexercise executive authority by ‘implementingnational legislation except where theConstitution or an Act of Parliament providesotherwise’. In considering all of this,Chaskalson CJ quotes this passage fromPresident of the Republic of South Africa andOthers v South African Rugby Football Unionand Others:

‘[O]ne of the constitutional responsibilities of thePresident and Cabinet Members in the nationalsphere (and premiers and members of executivecouncils in the provincial sphere) is to ensure theimplementation of legislation. This responsibility isan administrative one, which is justiciable, and willordinarily constitute “administrative action” withinthe meaning of s 33.’44

PAJA has to be construed consistently withsection 33. If certain conduct is administrativeaction for the purposes of section 33, then itmust be the case that it is administrative actionfor the purposes of PAJA. To the extent thatPAJA is not capable of being read in such away that it includes such conduct within itsambit, it is inconsistent with section 33 andunconstitutional. Chaskalson CJ makes thisclear:

‘If section 85(2)(a)…had not been omitted from thelist of exclusions, the core of administrative actionwould have been excluded from PAJA, and the Actmandated by the Constitution to give effect to sec-tions 33(1) and (2) would not have served itsintended purpose. The omission of section85(2)(a)…from the list of exclusions was clearlydeliberate. To have excluded the implementationof legislation from PAJA would have been incon-sistent with the Constitution. The implementationof legislation, which includes the making of regu-lations in terms of an empowering provision, istherefore not excluded from the definition ofadministrative action.’

Chaskalson CJ therefore holds that the makingof regulations constitutes administrative actionwithin the meaning of PAJA.

41 New Clicks CC at para 128.42 Id at para 132.43 Id at para 131-132.

44 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) at para142.

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Ngcobo J’s judgmentWhile acknowledging that the question ofPAJA’s applicability has to be answered in thiscase, Ngcobo J prefers to turn his mind only tothe question of the applicability of PAJA to thefacts presented by the case. He does notdecide, therefore, that PAJA applies to allinstances of ministerial regulation-making, butonly that it applies to the specific power tomake regulations conferred by section 22G(2)of the Medicines Act.45

Ngcobo J starts with a description of theprocess required by section 22G(2). Theprocess, he says, is unique:

‘It is unique in the sense that it requires theMinister to make regulations “on the recommen-dation of the Pricing Committee.” The recom-mendation of the Pricing Committee is thereforea jurisdictional fact for the exercise by theMinister of her power to make regulations.Section 22G(2) contemplates that the Ministerwill only make regulations if the PricingCommittee recommends them. Neither theMinister nor the Pricing Committee can act alone.They must act together.’46

Ngcobo J confines himself to considering theunique process of section 22G(2).His startingpoint is the construction given to ‘administra-tive action’ in section 33 of the Constitution.Where the Constitutional Court has given aconstruction to a concept used in theConstitution, and Parliament has enacted sub-sequent legislation giving effect to that con-cept, ‘it is safe to assume that the legislaturewhen using the concept in question intended itto be given the meaning which has been givento it’ by the Constitutional Court.47 Ngcobo Jrelies on a number of cases that construe theimplementation of legislation as administrativeaction for the purposes of section 33.48 TheMedicines Act, he continues, requires the

Minister and the pricing committee to acttogether in implementing the provisions of sec-tion 22G(2); and it is this specific requirementwhich is determinative in Ngcobo J’s judgment:

‘Viewed in isolation regulation-making authoritymay be said to be a legislative act. However, aspointed out previously, it is incorrect to view indi-vidually the component parts of what is essential-ly a single process. The regulation-making is asmuch part of the entire process as the recommen-dation of the Pricing Committee itself. One cannotexcise this step from the rest of the process for thepurposes of the operation of PAJA. The making ofthe recommendation by the Pricing Committeeand the making of the regulations by the Ministerare part of a process which, when viewed in itsentirety, is, in my view, administrative.’49

Ngcobo J therefore leaves open the questionwhether ministerial regulation-making general-ly will amount to administrative action withinthe meaning of section 33 and PAJA. The spe-cific and unique process contemplated in thiscase, though, means that the regulations madeby the Minister on the recommendation of thepricing committee are reviewable under PAJAas ‘administrative action’.

Sachs J’s judgmentThe essence of Sachs J’s judgment is thatPAJA is not generally applicable to subordinatelegislation and that legislation of this sortshould be controlled by the constitutionallyembedded principle of legality. He does decide,however, that the fixing of the dispensing feeby the regulations in this case is an act of suf-ficient specifity to warrant review under PAJA.There are two levels on which Sachs Jadvances his argument. The first is the broadprinciple of legality; and the second is the spe-cific application of PAJA to the fixing of the dis-pensing fee.

Sachs J advances three propositions in sup-port of his position that subordinate legislationdoes not amount to ‘administrative action’ forconstitutional purposes. The first is that section33 has to be seen in the context of an expan-sive constitutional framework setting the stan-dards of governmental action. ‘[S]ection 33

45 New Clicks CC at para 422.46 Id at para 441.47 Id at para 465.48 Fedsure Life Assurance Ltd and Others v Greater

Johannesburg Transitional Metropolitan Council andOthers 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458(CC) at para 27; President of the Republic of SouthAfrica and Others v South African Rugby FootballUnion and Others 2000 (1) SA 1 (CC); 1999 (10) BCLR1059 (CC) at para 142; Permanent Secretary,Department of Education and Welfare, Eastern Cape,and Another v Ed-U-College (PE) (Section 21) Inc 2001(2) SA 1 (CC); 2001 (2) BCLR 118 (CC) at para 18;

Pharmaceutical Manufacturers Association of SA andAnother: In re Ex parte President of the Republic ofSouth Africa and Others 2000 (2) SA 674 (CC); 2000(3) BCLR 241 (CC) at para 45.

49 New Clicks CC at para 471.

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does not stand as a solitary bulwark againstarbitrary or unfair exercises of public power.’50

Governmental action, Sachs J suggests, is tobe controlled not solely or even primarily bysection 33, but by the principles and valuesthat underlie this expansive framework. While itis certainly true that accountability and respectfor fundamental rights are values inherent inthe Constitution, as Sachs J notes,51 this is noton its own sufficient reason to remove the con-trol of public power from the scope of the rightdesigned to ensure governmental compliancewith these principles, and base such controldirectly on those values and principles. Giventhat there is a right in the Bill of Rights guaran-teeing administrative justice, it is that right thatshould be applied wherever it is applicable.This part of Sachs J’s argument leaves it openwhether that right is actually capable of con-trolling the public power in question.

The second leg of the argument is that section33 confers a right to administrative justice onindividuals rather than the public at large.Further, the specific rights conferred, such asprocedural fairness and the right to written rea-sons fit the notion of adjudicative justice forindividuals.52 Only subordinate legislation thatadversely affects the rights of the public, SachsJ says, will be reviewable under PAJA. Theonly reason Sachs J does not subject the bulkof the regulations to scrutiny under PAJA is hisview that they do not adversely affect rights.

The third argument that Sachs J advancesrests on an interpretation of the text of PAJAitself. Examining several sections of PAJA,Sachs J concludes that there is no direct refer-ence in PAJA to subordinate legislation.53 Thedeterminative question, though, ‘is whether theabsence of express reference in PAJA to sub-ordinate legislation contradicts the requiredreach of the principles of section 33, or accu-rately reflects their limits.’54 Sachs J notes thatthere are three routes to filling this lacuna inPAJA:

‘The first would be to give section 33 the moreexpansive meaning attributed to it by ChaskalsonCJ, and then stretch the language in PAJA toinclude subordinate legislation. The second wouldbe to treat PAJA as unconstitutional to the extentthat, without apparent justification, it excludesreview of subordinate legislation. The third is tosee no incongruency at all between section 33 andPAJA, but rather to view them both as being direct-ed towards the well-focused objective of protect-ing the rights of individuals or relatively discretegroups in their dealings with the public authori-ties….I believe that the third approach is the onemost consistent with the structure and values ofthe Constitution.’55

Conclusions on the application of PAJALanga DCJ and O’Regan J agree explicitly withChaskalson CJ’s judgment, while Van derWesthuizen J indicates his concurrence lieswith Ngcobo J’s judgment. Moseneke J’s judg-ment, concurred in by four judges, does notdecide whether PAJA applies to regulation-making or not, but assumes for the purposes ofthe judgment that it does. Sachs J decides thatonly the making of regulations relating to thedispensing fee falls within the purview of PAJA.Three judges therefore hold that PAJA appliesgenerally to regulation-making, two hold that itapplies only to the regulation-making processin this case, one holds it applies to a limiteddegree and five do not decide the issue.

Section 1 – Administrative actiondefined

The question of whether the definition of“administrative action” in section 1 of PAJAapplies was avoided in the case of MEC:Department of Finance, Economic Affairs &Tourism, Northern Province v Mahumani[2005] All SA 479 (SCA) (see commentsbelow under headings “Section 3 – Proceduralfairness in administrative action affecting thepublic” and “Common-law review – Proceduralfairness”). The case concerned the disciplinaryhearing of an employee of the appellant.Resolution 2 of 1999 of the Public ServiceBargaining Council contained the DisciplinaryCode and Procedures for the Public Service. Interms of this Code neither employees nor theemployer are to be legally represented at disci-plinary hearings. The court said with referenceto Hamata and another v Chairperson,50 Id at para 587.

51 Id at para 588.52 Id at paras 596-597.53 Id at paras 599-607.54 Id at para 607. 55 Id at para 608.

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Peninsula Technikon Internal DisciplinaryCommittee and others 2002 (5) SA 449 (SCA),that it was unnecessary to decide if the conductcomplained against constituted “administrativeaction” as it would make no difference to theoutcome (at para 11).

Greys Marine Hout Bay (Pty) Ltd and othersv Minister of Public Works and others[2005] All SA 33 (SCA) (see below underheading “Section 3 – procedural Fairness inadministrative action affecting the public”, and“Section 6 – grounds of review”) was an appealagainst a High Court decision. The High Courtcase in this matter was discussed in theAugust/September 2004 edition of thisnewsletter. It is reported as Greys MarineHout Bay (Pty) Ltd & others v Minister ofPublic Works & others [2004] 3 All SA 446(C). In this case, although the court posted itscriticisms of the definition of administrativeaction in PAJA, the definition was confrontedhead on. The court noted that the “question atthe outset is whether the Minister’s decisionconstitutes administrative action falling withinthe terms of PAJA.” (at para 19) The court said:

“What constitutes administrative action – the exer-cise of the administrative powers of the State –has always eluded complete definition. The cum-bersome definition of that term in PAJA serves notso much to attribute meaning to the terms as tolimit its meaning by surrounding it within a pal-isade of qualifications.” (at para 21, footnotesomitted)

After considering the definition in section 1, thecourt went on to hold that guidance as to thescope and extent of the definition can be takenfrom section 33 of the Constitution:

“At the core of the definition of ‘administrativeaction’ is the idea of action (a decision) ‘of anadministrative nature’ taken by a public body orfunctionary. Some pointers as to what that encom-passes are to be had from the various qualifica-tions that surround the definition but it also falls tobe construed consistently, wherever possible, withthe meaning that has been attributed to adminis-trative action as the terms is used in section 33 ofthe Constitution (from which PAJA originates) soas to avoid constitutional invalidity.” (at para 22)

Against this background, the court went on tomake the following comments about the defini-tion:

“While PAJA’s definition purports to restrict admin-istrative action to decisions that, as a fact,‘adversely affect the rights of any person’, I do notthink that literal meaning could have been intend-ed. For administrative action to be characterised byits effect in particular cases (either beneficial oradverse) seems to me to be paradoxical and alsofinds no support from the construction that has untilnow been placed on section 33 of the Constitution.Moreover, that literal construction would be incon-sistent with section 3(1) [of PAJA], which envisagesthat administrative action might or might not affectrights adversely. The qualification, particularlywhen seen in conjunction with the requirement thatit must have a ‘direct and external legal effect’, wasprobably intended rather to convey that administra-tive action is action that has the capacity to affectlegal rights, the two qualifications in tandem serv-ing to emphasise that administrative action impactsdirectly and immediately on individuals.” (at para23, footnotes omitted)

The court indicated that it did not think thereare grounds for distinguishing administrativeaction in terms of section 1of PAJA from admin-istrative action in terms of section 33 of theConstitution. It held that even if the qualifica-tions of section 1 do exclude from its ambitsome acts that would qualify as administrativeaction under section 33, such acts were not inissue before the court (at para 28). Ultimatelythe appellate court agreed with the High Courtthat none of the appellants had shown that anyof their rights had been compromised byunlawful administrative action (at para 30).

In Gold Fields Ltd v Connellan NO and oth-ers [2005] 3 All SA 142 (W) (see below underheadings “Section 6 – grounds of review” and“Section 7(2) – Exhaustion of internal reme-dies”) the parties were agreed that PAJAapplied. The definition of administrative actionwas not in issue, and the court did not go intoa discussion of the definition.

Nala Local Municipality and Another vLejweleputswa District Municipality andOthers [2005] 3 All SA 571 (O) (see discus-sion below under heading “Section 1of theConstitution – The doctrine of legality”) con-cerned an application to review the decision ofthe first respondent to appoint a commission ofinquiry into alleged improprieties of the appli-cants. In terms of the Local Government:Municipal Systems Act, 32 of 2000, the secondrespondent has the power to investigatebreaches of the Code of Good Conduct forCouncillors. The applicants contended that the

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meeting at which the first respondent (of whichthe second respondent is the Speaker)resolved to appoint such a commission wasirregularly convened and that as a result, thesecond respondent acted unilaterally andunlawfully.

After concluding that the meeting of the firstrespondent was indeed unlawful (at para 10:see discussion below), Musi J, with whomLombard J concurred, considered the questionwhether the conduct of the second respondentamounted to administrative action. The judgenoted that the second respondent, as a naturalperson, fitted into part (b) of the definition, asaction taken by a natural person “when exer-cising a public power or performing a publicfunction in terms of an empowering provision”(at para 16). Counsel for the respondents sub-mitted, first, that the second respondent wasnot exercising a public power or performing apublic function, and secondly, that the actiontaken by the second respondent did not affectadversely the rights of any parties concerned,and could not be said to have a “direct, exter-nal legal effect” (at para 17). As to the first ofthese, the judge disagreed with counsel’s sub-missions. In particular, the judge distinguishedthe case from President of the Republic ofSouth Africa and Others v South African RugbyFootball Union and Others 2000 (1) SA 1 (CC);1999 (10) BCLR 1959 (CC). In that case, thejudge said:

“It was found that the function was part of thePresident’s public policy responsibilities and notadministrative. It surely cannot be argued that thespeaker of a municipality can have any such policyfunctions. There was no suggestion moreover in thiscase that the second respondent’s functions wereanything other than administrative.” (at para 18).

The judge then went on to consider the ques-tion of prejudice, a question which the consid-ered in relation to whether the action com-plained of had a “direct, external legal effect”.He concluded:

“In my view, in the instant case, the applicantshave shown that the decision in question was prej-udicial not only for them but for the communitiesserved by the two municipalities as well. In the firstplace, the remuneration of the committee mem-bers would have to be paid by the first respondentand no one else. The investigation being unautho-rised, the resultant expenditure would be unautho-rised expenditure. Secondly, the expenditure

would unjustifiably diminish the coffers of the firstrespondent and indirectly that of the first applicantwhich is a contributor to the first respondent’sbudget. Thirdly, the whole exercise was unneces-sary being a duplication of the work of theProvincial Auditor general. The funds to beexpended could fruitfully have been used for serv-ice delivery to the communities involved. Lastly,there cannot be any doubt that the decision has adirect, external legal effect.” (at para 20)

Section 3 – Procedural fairness inadministrative action affecting thepublic

The case of Commissioner, South AfricanRevenue Service v Hawker AviationServices Partnership and Others 2005 (5)SA 283 (T) concerned a challenge to certainsections of the Value Added Tax Act, 89 of1991, and a “judgment” taken administrativelyby the filing by the Commissioner with the clerkof a court a certificate of tax payable. Therespondents argued that the procedures estab-lished by the Act are unconstitutional. In thiscase, income tax assessments had beenraised against the respondents. The applicantgave to the respondent an undertaking that arevised assessment would be issued. No suchassessment was issued, however, before judg-ment was taken. Patel J held that the under-taking had created a legitimate expectation onthe part of the respondents that a revisedassessment would be issued before a certifi-cate of tax payable was filed with the clerk ofthe court. The failure to do so in this caseamounted to a breach of a legitimate expecta-tion (at para 57). The judge did not refer toPAJA directly at this stage, but it is worth point-ing out that section 3(1) of PAJA states thatadministrative action that materially andadversely affects rights or legitimate expecta-tions must be procedurally fair.

In interpreting section 40(2) of the VAT Act, thejudge said that it is capable of two interpreta-tions. The interpretation that preserved theright to procedural fairness must be preferred,the judge said.

“Since s 40(2) is silent on the procedure to be fol-lowed, it lends itself to at least two possible con-structions. It may be construed as permitting an exparte application to the Registrar containing amere statement that the amount of tax specified isdue and payable, or that the application for thejudgment must be preceded by reasonable notice

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to the taxpayer and that the statement must beone which is supported by an assessment uponwhich it is based. The former construction wouldmake grave inroads into the taxpayers’ fundamen-tal rights to administrative justice, access to courtand to property, (namely ss 33(1), 34 and 25(1) ofthe Constitution). If it is reasonably possible to doso, then the latter construction is the one to bepreferred. Given the legislative silence on theissue, such a construction is manifestly possible.In any event, procedural fairness is a requirementof the Promotion of Administrative Justice Act.” (atpara 58)

The judge concluded that “[f]airness certainlyrequires notice of intended action and anopportunity to be heard”.

In MEC: Department of Finance, EconomicAffairs & Tourism, Northern Province vMahumani [2005] All SA 479 (SCA) (seeabove under heading “Section1 –Administrative action defined”, and belowunder “Common-law review – Procedural fair-ness), PAJA was not applied. The court never-theless noted that the provisions of PAJA relat-ing to procedural fairness in general corre-spond to the common law rules relating to dis-ciplinary proceedings (at para 11). The caseconcerned whether it was fair or unfair torefuse an employee legal representation at dis-ciplinary proceedings. The common law, thecourt held, did not confer an absolute right tobe legally represented before such tribunals.But such proceedings must nevertheless befair. Quoting from Hamata and another vChairperson, Peninsula Technikon InternalDisciplinary Committee and others 2002 (5) SA449 (SCA), the court said (at para 11):

“If, in order to achieve such fairness in a particularcase legal representation may be necessary, adisciplinary body must be taken to have beenintended to have the power to allow it in the exer-cise of its discretion unless, of course, it has plain-ly and unambiguously been deprived of any suchdiscretion.” (at para 23)

In Greys Marine Hout Bay (Pty) Ltd and oth-ers v Minister of Public Works and others[2005] All SA 33 (SCA) (see above underheading “Section 1 – Administrative actiondefined” and below under heading “Section 6 –grounds of review), the Supreme Court ofAppeal (SCA) had cause to consider the word-ing of section 3(1) of PAJA. The case involveda decision by the first respondent to let out anundeveloped section of the quayside in Hout

bay, owned by the state, to a small commercialfishing concern. The court remarked that sec-tion 3(1) confers a right of procedural fairnessonly in case of administrative action that mate-rially and adversely affects rights or legitimateexpectations (at para 30). The court consid-ered whether the appellants had suffered aninjury to either rights or legitimate expectations.As regards the former, the court said:

“While ‘rights’ may have a wider connotation in thiscontext, and may include prospective rights thathave yet to accrue, it is difficult to see how theterm could encompass interests that fall short ofthat. It has not been shown that any rights – oreven prospective rights – of any of the appellants(or any other person) have been adversely affect-ed by the Minister’s decision. None of the appel-lants have any right to use the property that hasbeen let, or to restrict its use by others, nor hasany case been made out that their rights of occu-pation of their own premises have been unlawfullycompromised.” (at para 30, footnotes omitted)

The court noted that to the extent that othercases had recognised an interest falling shorteven of a prospective right (the court referredto Bullock NO and others v ProvincialGovernment, North West Province and another2004 (5) SA 262 (SCA)), what the courts hadhad in mind was a legitimate expectation. Inthis case, the court considered whetherreliance could be placed on “a legitimateexpectation, grounded in past practice, that theaffected property would continue to be avail-able for the use of the aggrieved party.” Thecourt held, however, that the appellants hadnot shown a “peculiar interest transcendingthose enjoyed by the public at large.” (at para31) The court continued:

“Nor has it been shown that any of the appellants(or any other person) has a legitimate expectationthat the property would be left vacant, or even thatthey would be consulted, or their comments invit-ed, before it was let.” (at para 32)

Section 6 – Grounds of review

In Greys Marine Hout Bay (Pty) Ltd and oth-ers v Minister of Public Works and others[2005] All SA 33 (SCA), the facts of whichappear above under heading “Section 3 –Procedural fairness in administrative actionaffecting the public” (see also under heading“Section 1 – Administrative action defined”),the appellants submitted that the Minister’s

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actions had been arbitrary and irrational andfell to be set aside under section 6 of PAJA.The appellants’ argument was that theDepartment of Public Works had “aligned itself”to a policy to leave certain property vacant. TheMinister’s decision to let that property, theyargued, purported to vary that policy. Theappellants argued the decision was thereforearbitrary and irrational. Further, they submittedthat the decision failed to take into account thetraffic congestion and inconvenience the occu-pation of the plot would cause (at para 34). Thecourt held that the appellants had failed toestablish proper grounds for impugning thedecision:

“I do not think the evidence established the exis-tence of a policy on the part of EnvironmentalAffairs – it showed no more than thatEnvironmental Affairs held views from time to timeas to the best use of the property – nor that PublicWorks aligned itself with any policy and even lessthat it adopted the views of Environmental Affairsas its own. Nor does the evidence establish thatthe Minister failed to take account of the conse-quences of the property being developed by [thethird respondent]. If the appellants were entitled toseek to review the Minister’s decision on thegrounds set out in terms of section 6 of PAJA – amatter on which I express no opinion – there areno proper grounds for finding that the Minister’sdecision was arbitrary or irrational and there is nomerit in those submissions.” (at para 35)

Note: The court did not refer to any specificprovisions in section 6. Had it done so, the pro-vision dealing with arbitrary administrativeaction is section 6(2)(e)(iv), while the provi-sions dealing with irrationality are in section6(2)(f)(ii)(aa)-(dd).

In Profmed Medical Scheme v MadumiseNO and Another [2005] 3 All SA 484 (T) thequestion at issue was whether the first respon-dent, the chairperson of the Appeal Board ofthe Council for Medical Schemes, establishedin terms of the Medical Schemes Act, 131 of1998, has the power in terms of the Act to callwitnesses when deciding appeals to it. Theapplicant’s Disputes Committee had taken adecision against one Govender, who thenappealed to the second respondent. The appli-cant sought the review and setting aside of theAppeal Board’s decision to call one Naidoo togive evidence before it, arguing that the sec-ond respondent has no such power in terms ofthe governing legislation. The applicant based

this submission on an interpretation of section50(9) of the Medical Schemes Act. In the alter-native, the applicant argued that if the AppealBoard does have such a power, it is to be exer-cised sparingly.

The court did not agree. Patel J held that thecorrect construction of the legislation allowedthe Appeal Board to call for evidence, and thatthe Board had done so in terms of the legisla-tion, on the facts of this case (at para 26).

Note: The judge did not refer to any of the sec-tions of PAJA in his decision. It is not clear if thecase was pleaded in terms of PAJA by theapplicant. However, the case could have beenpleaded on the basis of section 6(2)(a)(i) ofPAJA, which provides for the review of admin-istrative action if the administrator who took theaction “was not authorised to do so by theempowering provision”.

In Gold Fields Ltd v Connellan NO and oth-ers [2005] 3 All SA 142 (W) (see under head-ing “Section 1 – Administrative action defined”and below under “Section 7(2) – Exhaustion ofinternal remedies”), the court quoted a pas-sage from the Constitutional Court judgment inBato Star Fishing (Pty) Ltd v Minister ofEnvironmental Affairs and Tourism and others2004 (4) SA 490 (CC) to the effect that section6 of PAJA has cemented the interrelationshipbetween PAJA, the common law and theConstitution:

“The provisions of s 6 divulge a clear purpose tocodify the grounds of judicial review of administra-tive action as defined in PAJA. The cause of actionfor the judicial review of administrative action nowordinarily arises from PAJA, not from the commonlaw as in the past. And the authority of PAJA toground such causes of action rests squarely onthe Constitution.” (at para 25)

Section 6(2)(a)(iii) – Bias

Section 6(2)(a)(iii) allows review of administra-tive action if the administrator who took it was“biased or reasonably suspected of bias).

In Gold Fields Ltd v Connellan NO and oth-ers [2005] 3 All SA 142 (W) (see under head-ing “Section 1 – Administrative action defined”and below under “Section 7(2) – Exhaustion ofinternal remedies”) the court had occasion toconsider an allegation of bias on the part of an

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administrator. The applicant was a companyconducting gold mining operations in a numberof countries. The third respondent, Harmony,made an offer to acquire the entire issuedshare capital of the applicant. The acquisitionfell to be regulated by the Securities RegulationPanel (the SRP), the fourth respondent to theapplication. The first respondent was theExecutive Director of the SRP at the time. Interms of the offer document drawn up byHarmony and approved by the SRP, the offerhad to be made by Harmony within certain timeperiods. Harmony, however, appealed suc-cessfully to the SRP on a number of occasionsfor extensions of time. The applicant sought tohave the decisions of the SRP and itsExecutive Director reviewed in this respect.

The court began its consideration of bias as aground of review in PAJA with a review of caselaw. With reference to Turner v Jockey Club ofSouth Africa 1974 (3) SA 633 (A), the courtheld that the “declared objectivity, honest dili-gence and integrity of the Executive Director isrelevant to this consideration [of bias], but notdecisive.” (at 165c-d) The inquiry, the courtwent on, is wider than this. In the context ofrecusal applications, the court noted, the terms“apprehension of bias” and “suspicion of bias”have been used interchangeably. (at 165e) Indetermining whether an official is “reasonablysuspected of bias”, the court held that it isappropriate to consult authorities on recusalapplications. (at 165f) The court then went onquote passages from President of the RSA vSARFU 1999 (4) SA 147 (CC); 1999 (7) BCLR725 (CC) (at paras 37 and 48) and SouthAfrican Commercial Catering and AlliedWorkers Union and others v Irvin and Johnson(Seafoods Division Fish Processing) 2000 (3)SA 705 (CC); 2000 (8) BCLR 886 (CC) (atparas 14-17). The court’s conclusion was thefollowing:

“The wording used in section 6(2)(a)(iii) of PAJA is‘reasonably suspected of bias’, a phrase similar tothat used in the case[s] quoted in relation torecusal applications. The test stated in the presentcontext is that the onus is on Gold Fields to showthat, on the facts a reasonable person in the posi-tion of Gold Fields would reasonably apprehend orsuspect that the Executive Director is biasedagainst it.” (at 167b-c)

Considering the facts of the case, the courtconcluded that the incidences raised by GoldFields did satisfy the test for bias in section6(2)(a)(iii) of PAJA. The court’s summary of thefacts and conclusions is as follows:

“[I]n a scenario of ferocious opposition betweenthe offeror and offeree, Gold Fields were denied,on a number of occasions, the opportunity to makesubmissions on a ruling that affected the veryessence of the disputes between the parties; GoldFields were not informed of the rulings sought andrulings made; the Executive Director was defen-sive of the rights of Harmony and was reluctant toexercise his powers in terms of section 440D ofthe Companies Act; Gold Fields were afforded aninordinately short period of time within which tomake submissions; Gold Fields were left under amisapprehension of the SRP version of thealleged implied consent, and the ExecutiveDirector closed his mind to the issue around themeaning of rule 28.6.

In a scenario where objectivity and independenceis required of a Regulator, as is the case here, inci-dents like these should not arise. Because theydid, the question inevitably arises why they hap-pened. Is it required that one speculates about thereason they happened – due to pressure, bias,ignorance, etc? No. If a reasonable person in theposition of Gold Fields reasonably comes to theconclusion that it happened due to bias, the testhas been satisfied. All of the incidents mentionedfavoured Harmony and prejudiced Gold Fields. Noincident of the same nature has been pointed outwhich prejudiced Harmony and favoured GoldFields. Consequently the conclusion of a reason-able suspicion of bias is an inevitable one.” (at167d-g)

The court also considered the argument fromthe respondents that, even if the ExecutiveDirector was biased, the Executive Committeeof the SRP could not be found to be similarlybiased. The court disagreed, holding that onthe facts, the Executive Committee had aligneditself with the Executive Director, and could besaid to “institutionally biased”. (at 168c-169h)

Section 6(2)(c) – Procedurally fairadministrative action

In Gold Fields Ltd v Connellan NO and oth-ers [2005] 3 All SA 142 (W) (the facts appearabove under the heading “Section 6(2)(a)(iii) –Bias”. See also headings “Section 1 –Administrative action defined” and “Section7(2) – Exhaustion of internal remedies”) theapplicant complained that the decision of the

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first respondent was vitiated due to proceduralirregularity. The court pointed to three inci-dences of irregularity that led to a finding ofprocedural unfairness. First, the allegedimplied consent of the SRP to Harmony’sapplication for an extension of time was notcommunicated to the applicant for some time;second, the applicant was asked to make sub-missions regarding a ruling by the SRP withina few hours; and third, the SRP was reluctantto exercise its powers in terms of section 440Dof the Companies Act in the interest of resolv-ing the dispute.

It was argued on behalf of the respondentsthat the Code and Rules of the SRP allow theexecutive Director of the SRP to make rulingsafter consulting only the party applying for theruling. The court held that this approach is ingeneral correct; but that in the circumstancesof the case, involving an extremely hostiletakeover bid,

“it is hardly appropriate to argue that in the currentscenario decisions could be taken and rulingsmade without allowing Gold Fields to make anysubmissions and vice versa, particularly so inrespect of the highly contentious issues betweenthe parties.” (at 168b-c)

The highly publicised case of GoverningBody, Mikro Primary School, and Another vMinister of Education, Western Cape, andOthers 2005 (3) SA 504 (C) (See below underheadings “Section 7 – Procedure for review”and “Common-law review – Ultra vires”) con-cerned 41 school children who had beenturned away from the school over which thefirst applicant was the governing body. Theschool was an Afrikaans-medium school. Afterthe refusal to admit the pupils, the secondrespondent, the Head of Education of theWestern Cape Administration, issued a direc-tive requiring the school to admit the pupils andoffer instruction in English. An appeal againstthe directive was made to the first respondent,who dismissed it. The applicants sought anorder from the court that the second respon-dent’s directive was unlawful and fell to bereviewed and set aside. The applicants chal-lenged the first respondent’s decision to dis-miss the appeal on two grounds listed in PAJA.One of these was that the action in dismissingthe appeal was procedurally unfair.

The point of contention was that the firstrespondent had refused or failed to allow theapplicants’ attorneys to place before him fur-ther matter which would probably have beenrelevant to his decision. Despite requests tothis end, without further notice to the applicantsor their attorneys, and without affording theapplicants the opportunity to amplify theirappeal, the first respondent dismissed theappeal. The respondents’ argument was thatthe urgency of the situation – schools were setto resume – did not allow for the expansion ofthe appeal. The court, however, indicated thatespecially where urgency is of the administra-tor’s own making, urgency cannot be allowedto obstruct procedural fairness:

“Had [the relevant information] been allowed tobe placed before the first respondent before hehad decided against the appeal, he might havedecided it differently. He says, and it was argued,that he could not wait for this material becausethe schools were due to open on 19 January2005, and finality was urgently required. Theanswer to this contention is that the urgency wasof the Education Department’s ownmaking….Had the directive been issued at anearlier stage, the appeal against it could havebeen disposed of less summarily and with lesshaste. I find that the first respondent’s action indismissing the appeal as he did was procedural-ly unfair (s 6(2)(c) of the Promotion ofAdministrative Justice Act).” (at 522E-H)

This decision was confirmed on appeal inWestern Cape Minister of Education andothers v Governing Body of Mikro primarySchool [2005] 3 All SA436 (SCA).

Section 6(2)(d) – Material error of law

In Governing Body, Mikro Primary School,and Another v Minister of Education,Western Cape, and Others 2005 (3) SA 504(C) (see discussions above and below underheadings “Section 7 – Procedure for review”and “Common-law review – Ultra vires”) it wascontended that the first respondent’s decisionin dismissing an appeal against action taken bythe second respondent fell foul of section6(2)(d) of PAJA because it was “materiallyinfluenced by an error of law”. The court foundin its judgment that the second respondent hadacted unlawfully in its actions, and that the firstrespondent, in believing that the secondrespondent had not acted unlawfully, based hisown decision on an erroneous view: “The error

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of law was that the first respondent thought thatthe second respondent was entitled to issuethe directive” that it did. (at 521E-F) This deci-sion was confirmed on appeal in WesternCape Minister of Education and others vGoverning Body of Mikro primary School[2005] 3 All SA436 (SCA).

Section 7 – Procedure for judicialreview

Section 7(1) – Delay

In Ntame v MEC, Dept of SocialDevelopment, Eastern Cape; Mnyaka vMEC, Dept of Social Development, EasternCape; Mnyaka v MEC, Dept of SocialDevelopment, Eastern Cape [2005] 2 All SA535 (SE) (See discussions under headings“Section 9 – Variation of time”, “Item 23 ofSchedule 6 to the Constitution”, Common-lawreview – Delay”, and “Common-law review –Exhaustion of internal remedies”), the appli-cants in all three cases sought to have thedecisions of the respondent to all three appli-cations, MEC for Social Development for theEastern Cape, reviewed. In the first applicationthe decision at issue was a decision by therespondent to suspend payment of a disabilitygrant, and in the other two applications theadministrative action complained against wasthe failure of the respondent to consider appli-cations for payment of child support grants.

In all three cases the applicants applied forcondonation in the form of an order directingthat the 180-day period referred to in section7(1) of PAJA be extended in terms of the provi-sions of section 9(1) of PAJA. Plasket J held,however, that since the cause of action in allthree cases arose before PAJA came into forceon 30 November 2000, PAJA did not apply. Thecommon-law delay rule, rather than section7(1) and section 9 of PAJA was held to governthe proceedings. (at para 14) (See the discus-sion below under the heading “Common-lawreview – Delay”.)

Section 7(2) – Exhaustion of internalremedies

In Gold Fields Ltd v Connellan NO andOthers [2005] 3 All SA 142 (W) (see com-ments above under headings “Section 1 –

Administrative action defined” and “Section 6 –Grounds of review”), the court referred to thelimitations section 7(2)(a) of PAJA imposes.The section provides:

“Subject to paragraph (c), no court or tribunal shallreview an administrative action in terms of this Actunless any internal remedy provided for in anyother law has first been exhausted.”

The court noted, in considering the impact ofthe section, that the applicant had not at anystage appealed against the decision of the firstrespondent in terms of the Code and Rules ofthe SRP. “The internal remedies providedfor…have thus not been exhausted by GoldFields.” (at 155b)

Section 7(2)(c) of PAJA provides that appli-cants may be exempted from the obligationimposed by paragraph (a) to exhaust internalremedies where exceptional circumstancesexist. The applicant argued that a reasonableperception of bias on the part of the firstrespondent and procedural unfairness createthe exceptional circumstances that would justi-fy exemption in terms of section 7(2)(c).

The court ultimately concluded that the appli-cant had succeeded in showing a reasonableapprehension of bias ( at 167g) (see aboveunder heading Section 6(2)(a)(iii)). In light ofthis finding, the court held that

“Gold Fields has shown exceptional circum-stances within the requirements of PAJA. Theexceptional circumstances…are such that it is inthe interests of justice that this court decides theissues placed before it.” (at 170b)

Plasket J held in Ntame v MEC, Dept ofSocial Development, Eastern Cape; Mnyakav MEC, Dept of Social Development,Eastern Cape; Mnyaka v MEC, Dept ofSocial Development, Eastern Cape [2005] 2All SA 535 (SE) that PAJA did not apply sincethe causes of action had arisen prior to thecoming into force of PAJA (see discussionabove under headings “Section 7(1) – Delay”and “Common-law review – Delay”).Nevertheless, the judge considered the mean-ing of section 7(2) since the applicants in allthree cases prayed for an order exemptingthem from the obligation created by the sectionto exhaust internal remedies before approach-ing a court for relief. The judge said, albeit in

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obiter, that such an order would not have beennecessary:

“Even if the PAJA had applied, such an order wouldnot have been necessary because section 7(2)merely defers the right of access until any internalremedy provided by any law has been exhausted,or the time period for utilising that internal remedyhas expired. Section 7(2) certainly does not oustthe jurisdiction of the courts when an applicant haschosen not to utilise an internal remedy or, forsome other reason, has not done so. Such aninterpretation of the section would most probablyrender it unconstitutional.” (at para 30)

The judge then went to apply the common-lawrule on the exhaustion of internal remedies(see discussion below under heading“Common-law review – exhaustion of internalremedies”).

In Governing Body, Mikro Primary School,and Another v Minister of Education,Western Cape, and Others 2005 (3) SA 504(C) (see discussion above under headings“Section 6(2)(c) – Procedurally fair administra-tive action”, “Section 6(2)(d) – Material error oflaw” and “Common-law review – Ultra vires”), itwas argued by the respondents that the appli-cants had not exhausted internal remedies andwere therefore precluded from seeking judicialreview of the respondents’ actions (at 515B-C).Thring J referred to paragraph (c) of section7(2), noting that the obligation to exhaust inter-nal remedies can be relaxed in “exceptional cir-cumstances”. The judge held:

“That this question should be resolved with as lit-tle delay as possible is self-evident. Unfortunately,and due to nobody’s fault, almost a month hasalready elapsed since these proceedings werelaunched. A fresh reference of this dispute to abody such as the Pan South African LanguageBoard, or to arbitration, would inevitably result infurther delay, and would undoubtedly exacerbatethe problem, especially as the board referred tolacks the power to make decisions which arebonding on the parties who appear beforeit.…Such delay can be avoided if the matter isfinalised here and now, after having been fullyventilated in this Court, as it has been. Moreover,this case has generated considerable public inter-est. It can safely be assumed, I think, that thereare many people to whom the principal issuesraised in this matter, and especially the centralquestions of language policy in public schools andthe rights and powers of governing bodies, are ofgreat moment. It would be regrettable if issues ofsuch magnitude and importance were to be decid-ed behind closed doors by a statutory board or by

an arbitrator….To my mind, the cumulative effectof these factors constitutes ‘exceptional circum-stances’ for the purposes of s 7 (2)(c) of the[PAJA], justifying the exemption of the applicantsfrom any obligation which they might otherwisehave been under to exhaust their internal reme-dies, and I deem such exemption, which s soughtby the applicants, to be in the interests of justice.”

On appeal at the SCA (Western CapeMinister of Education and others vGoverning Body of Mikro primary School[2005] 3 All SA436 (SCA)), the court agreedwith this view. It said that in terms of section7(2)(c), courts have a discretion whether togrant an exemption to the requirements of sec-tion 7(2)(a). A court of appeal is only entitled tointerfere in the exercise of a discretion if thecourt a quo has exercised its discretion capri-ciously or upon a wrong principle of law, or hasnot brought an unbiased mind to bear on thematter (at para 25). In this case, no such cir-cumstances justified the interference in thecourt a quo’s decision.

The SCA did point to a further factor that justi-fied the granting of the section 7(2)(c) exemp-tion:

“The second appellant, acting on an instruction bythe first appellant, nevertheless implemented thedecision without affording the respondents anyopportunity to challenge the validity of the dis-missal of its appeal to the first appellant. The firstand second appellants thereby forced the respon-dents to launch the urgent application to the courta quo. This fact in itself constituted exceptional cir-cumstances justifying the exemption of the first andsecond respondents as aforeasaid.” (at para 26)

Section 8 – Remedies

Gauteng Gambling Board v SilverstarDevelopment Ltd and Others 2005 (4) SA 67(SCA) was an appeal against a decision inreview proceedings before of the High Court.The respondent applied to the court a quo forreview of a decision by the appellant refusingthe former a license to operate gambling facili-ties in a casino in Gauteng. The court a quo didindeed find that the decision fell to be setaside; but instead of remitting the matter to theappellant for reconsideration, the court direct-ed the appellant to grant a gaming license tothe respondent (at para 1). The question onappeal before the SCA was whether the court

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a quo was correct in assuming the decision-making functions of the appellant.

The court, per Heher JA, noted that the usualcourse for a court on review, if a decision fallsto be set aside, is to remit the matter to theappropriate functionary. Occasionally, though,courts are justified in following a differentcourse:

“The power of a court on review to substitute orvary administrative action or correct a defect aris-ing from such action depends upon a determina-tion that a case is ‘exceptional’: s 8(1)(c)(ii)(aa) ofthe Promotion of Administrative Justice Act 3 of2000. Since the normal rule of common law is thatan administrative organ on which a power is con-ferred is the appropriate entity to exercise thatpower, a case is exceptional when, upon a properconsideration of all the relevant facts, a court ispersuaded that a decision to exercise a powershould not be left to the designated functionary.How that conclusion is to be reached is not statu-torily ordained and will depend on establishedprinciples informed by the constitutional impera-tive that administrative action must be lawful, rea-sonable and procedurally fair.” (at para 28)

Section 8(1)(c)(ii)(aa) of PAJA reads:

“The court or tribunal, in proceedings for judi-cial review in terms of section 6(1), may grantany order that is just and equitable, includingorders setting aside the administrative actionand substituting or varying the administrativeaction or correcting a defect resulting from theadministrative action”.

Although courts have this power, Heher JAcautioned that situations where its use isappropriate are rare:

“An administrative functionary that is vested bystatute with the power to consider and approve orreject an application is generally best equipped bythe variety of its composition, by experience, and itsaccess to sources of relevant information andexpertise to make the right decision. The court typ-ically has none of these advantages and is requiredto recognise its own limitations. See Minister ofEnvironmental Affairs and Tourism and Others vPhambili Fisheries (Pty) Ltd; Minister ofEnvironmental Affairs and Tourism and Others vBato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA)at paras [47] - [50], and Bato Star Fishing (Pty) Ltdv Minister of Environmental Affairs and Others 2004(4) SA 490 (CC) (2004 (7) BCLR 687) at paras [46]- [49]. That is why remittal is almost always the pru-dent and proper course.” (at para 29)

Taking into account all the facts of the matter,and considerations of fairness and reasonable-ness, the court reasoned that the court a quowas justified in the course it followed. The out-come that the court a quo’s decision effectedwas inevitable. All the parties had an interest inmatter’s finality, and no purpose would beserved by remitting it to the appellant:

“Taking all the matters which I have referred to inthe preceding paragraph into account no objectionof substance enunciated in the 1998 memorandumremains unanswered. No countervailing or addi-tional objections have been raised by the Board.The result is that the Court a quo was not merely inas good a position as the Board to reach a decisionbut was faced with the inevitability of a particularoutcome if the Board were once again to be calledupon fairly to decide the matter.” (at para 39)

Section 9 – Variation of time

Section 9 of PAJA allows a court or the partiesconcerned to vary the time limits imposed bysections 5 and 7. The section arose briefly forconsideration in Ntame v MEC, Dept of SocialDevelopment, Eastern Cape; Mnyaka vMEC, Dept of Social Development, EasternCape; Mnyaka v MEC, Dept of SocialDevelopment, Eastern Cape [2005] 2 All SA535 (SE) (see comments above under “Section7 – Procedure for judicial review” and belowunder “Item 23 of Schedule 6 to theConstitution”; “Common-law review – Delay”and “Common-law review – Exhaustion ofinternal remedies”). The applicants in the caseapplied for a variation of the time limits stipu-lated by section 7(1) in terms of section 9.Plasket J held, though, that since PAJA did notapply in the case, the issue of delay had to beresolved under the terms of the common lawrather than section 9 of PAJA.

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Section 33 of the Constitution – theright to administrative justice

Zondi v MEC for Traditional and LocalGovernment Affairs and Others 2005 (3) SA589 (CC) involved the confirmation of an orderof invalidity made by the Pietermaritzburg HighCourt. That decision is reported as Zondi vMEC for Traditional and Local GovernmentAffairs and Others 2005 (3) SA 25 (N) andwas discussed in the October 2004 – May2005 edition of this newsletter. The constitu-tional validity of certain sections of PoundOrdinance 32 of 1947 (KZN) was consideredby the Court. The sections authorise landown-ers to decide whether livestock has trespassedon their land, seize, destroy or sell the livestockwithout a court order. The High Court, inassessing these constitutional challenges, con-cluded that a provincial ordinance that failed tomeet the standards of procedural fairness ofsection 3 of the AJA was therefore inconsistentwith section 33 of the Constitution, and had tobe declared unconstitutional to that extent. TheConstitutional Court held, though, that

“PAJA cannot be used to evaluate a constitutionalchallenge. A constitutional challenge must be eval-uated under s 33 of the Constitution. Generally,PAJA only comes into the picture when it is soughtto review administrative action. Ordinarily anyonewho wishes to review any administrative actionmust now base the cause of action on PAJA. Thisis so because ‘(t)he cause of action for the judicialreview of administrative action now ordinarily aris-es from PAJA, not from the common law as in thepast’.” (at para 99. The quote is taken from BatoStar Fishing (Pty) Ltd v Minister of EnvironmentalAffairs and Others 2004 (4) SA 490 (CC); 2004 (7)BCLR 687 at para 25)

In the same case, Ngcobo J consideredwhether the impugned provisions of theOrdinance amounted to administrative actionas contemplated in section 33 of theConstitution. With reference to the judgment ofPresident of the Republic of South Africa andOthers v South African Rugby Football Unionand Others 2000 (1) SA 1 (CC); 19999 (10)BCLR 1059 (CC), Ngcobo J held, for the Court,that the impugned provisions involve the exer-cise of a public power. “It follows therefore”, the

Court held, “that the exercise of the powersconferred by the impugned provisions consti-tutes administrative action.” (at para 105)

The plaintiff in Dendy v University of theWitwatersrand and others [2005] All SA 490(W) brought five claims, identified in the partic-ulars of claim as claims A, B, C. D and E.Claims A and B were claims for damages indelict based on alleged violations of constitu-tional rights. Among the rights he claimed wereviolated by the defendants was the right toadministrative justice in terms of section 33 ofthe Constitution. The defendants excepted toclaims, arguing that no cause of action exits inthe South African law of delict for violations ofrights in the Bill of Rights.

The plaintiff applied to be appointed as one ofthe Chairs of Law in the School of Law at thefirst respondent. The Selection Committee forChairs of Law did not appoint him. The plaintiffset out in Claim A a number of ways in whichthis failure allegedly amounted to a breach ofthe right to just administrative action in terms ofsection 33 or the common law (at para 8).These include an alleged failure to take rele-vant considerations into account and takingirrelevant considerations into account, andbias. The plaintiff argues in Claim B that thefailure of the defendants to furnish him withreasons amounted to a breach of the right tojust administrative action in terms of section33(2) of the Constitution or alternatively thecommon law (at para 51). Claims C, D and Eare not relevant to the discussion at hand.

Boruchowitz J ultimately upheld the exceptionsin respect of Claims A and B. The judge there-fore did not consider the argument that consti-tutional or common-law rights to administrativejustice had been breached. The judge held thatClaims A and B disclosed no cause of actionbecause a clear distinction is drawn in our lawbetween delictual and constitutional wrongs.The plaintiff’s argument, essentially for the cre-ation of a constitutional delict, could not beupheld (at para 23).

The judge did say in obiter in respect of ClaimB that, although the claim disclosed no causeof action, the plaintiff could have applied forreasons for the refusal to appoint him to theChair of Law under the constitutional right to be

MISCELLANEOUS

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furnished with reasons for administrativeaction. (at para 56)

Section 1 of the Constitution – the doc-trine of legality

In Nala Local Municipality and Another vLejweleputswa District Municipality andOthers [2005] 3 All SA 571 (O) (see aboveunder heading “Section1 – administrativeaction defined”) the legality of a meeting atwhich a decision to investigate alleged irregu-larities of the applicants was taken by the firstrespondent was called into question. As a start-ing point, Musi J said the following:

“In line with the principle of legality embodied inthe Constitution and built into the Promotion ofAdministrative Justice Act 3 of 2000 (PAJA),administrative action not authorised by an empow-ering provision is unlawful and invalid and a per-son prejudiced by it may have it reviewed and setaside.” (at para 9)

The structures, powers and functions of munic-ipalities and their functionaries are set out inthe Constitution in chapter 7, as well as in theLocal Government: Municipal Structures Act,117 of 1998 and the Local Government:Municipal Systems Act, 32 of 2000. in addition,the MEC for local government in the provincepromulgated by proclamation “standard rulesand orders” regulating the procedures in theconduct of affairs of local government. TheJudge considered the legality of the meeting inquestion against this statutory background:

“the applicants contend that the notice calling themeeting did not comply with the requirements ofclause 10(1) of the standard rules and orders. Theclause stipulates that at least 48 hours notice mustbe given to each and every councillor. Particularsof the notice must be published in a newspaperand a copy placed on the municipal notice board.Most importantly, the duty to issue such noticesvests in the municipal manager. In casu, it is thespeaker [the second respondent] who issued thenotices and he does not, in his answering affidavit,say whether he has complied with the aboverequirements. All that he says is that he has oftenissued similar notices in the past and does not seeanything wrong with that. In other words, it doesnot bother him whether he complies with the stan-dard rules and orders or not. He vaguely claimsthat these rules and orders were superseded bythose contained in the Schedules to the SystemsAct “to some extent”, without elaborating.

I have no hesitation in concluding that themeeting was irregularly convened and wastherefore invalid.” (at para 10)

Item 23 of Schedule 6 to theConstitution

Schedule 6 to the Constitution provides for anumber of transitional arrangements. One ofthese had to do with administrative justice.Section 33 of the Constitution contains the rightto administrative justice; but it also requiresthat national legislation give effect to that right.Until such time as that legislation was enacted,the operation of section 33 of the Constitutionwas suspended, and the provisions of item23(2)(b) of Schedule 6 applied.

In Ntame v MEC, Dept of SocialDevelopment, Eastern Cape; Mnyaka vMEC, Dept of Social Development, EasternCape; Mnyaka v MEC, Dept of SocialDevelopment, Eastern Cape [2005] 2 All SA535 (SE) (see above under headings “Section7 – procedure for review” and “Section 9 –Variation of time” and below at “Common-lawreview – Delay” and “Common-law review –Exhaustion of internal remedies”), the cause ofaction arose prior to the coming into force ofPAJA. The constitutional right to administrativeaction was thus to be found in item 23(2)(b) ofSchedule 6, rather than section 33. The itemprovided that every person has the right to“procedurally fair administrative action whereany of their rights or legitimate expectations areaffected or threatened”. The judge held in thelight of item 23(2)(b) that the decision to sus-pend the payment of the disability grant inrespect of the first application (the facts are setout above under the heading “Section 7(1) –Delay”), in circumstances where the applicanthad not been afforded a hearing prior to thestopping of payment, was procedurally unfairand a nullity. (at para 34-35) Similarly, inrespect of the second and third applications,the judge held that a failure to take a decisionwhere a duty is cast on an administrative deci-sion-maker to do so “constitutes a violation ofthe fundamental right to lawful administrativeaction.” (at para 36)

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Common-law review – Proceduralfairness

The facts of MEC: Department of Finance,Economic Affairs & Tourism, NorthernProvince v Mahumani [2005] All SA 479(SCA) appear above under the heading“Section 1 – Administrative action defined”(see also “Section 3 – Procedural Fairness inadministrative action affecting public”). Atissue was a decision by the officer presiding ata disciplinary hearing not to allow the respon-dent legal representation at that hearing.Although the Disciplinary Code andProcedures for the Public Service (the Code)states that neither the Department of Finance,Economic Affairs and tourism nor its employ-ees shall be legally represented at disciplinaryhearings, a provision in the Code allowsdeparture from the Code in “appropriate cir-cumstances”. The presiding officer was of theview that no discretion was reposed in him togrant legal representation.

The court, per Patel AJA, disagreed. Its view ofthe matter was that there is “no justification forinterpreting ‘appropriate circumstances’ inclause 2.8 [of the Code] so as not to includecircumstances, which would render it unfair notto allow legal representation at a disciplinaryenquiry” (at para 12). The court went on toconclude:

“It follows that, if, on a conspectus of al the cir-cumstances it would be unfair not to allow legalrepresentation the provisions of clause 7.3(e) mayin terms of clause 2.8 be departed from. The pre-siding officer erred in holding that he had no dis-cretion to allow such a departure. The court a quo,therefore, correctly reviewed his decision and se itaside.” (at para 13)

The court held finally that the matter had to beremitted to the decision-maker for reconsidera-tion. The court emphasised that it is not for thecourt to take decisions on the part of theadministrator entrusted with that decision:

“In the face of the failure by the presiding officer toexercise the discretion which he had, this matterhas to be referred back to him for consideration. Itis not for this court to exercise the discretion whichis reposited in the presiding officer unless thereare good reasons for doing so.”

. . . .“It will be for the presiding officer to apply his mindto the need for legal representation after consider-

ing the circumstances of the case. The mattertherefore will of necessity have to be referred tothe presiding officer for him to exercise his discre-tion.” (at paras 14 and 15)

Common-law review – Audi alterampartem

Buffalo City Municipality v Gauss andAnother 2005 (4) SA 498 (SCA) concernedexpropriation in terms of the Expropriation Act,63 of 1975, and Municipal Ordinance 20 of1974 (Cape). The appellant in this case was alocal authority, the powers of which to expropri-ate property are located in the Ordinance. Interms of the Ordinance, a local authority mayexpropriate only according to an establishedprocedure. First, the authority must resolve byspecial resolution to expropriate the property;then a “preliminary notice” must be served onthe owner of the land to be expropriated,informing him that any objections must belodged within a set time period. After thisprocess has been exhausted, and having com-municated any objections to the Premier of theprovince, the authority must seek the approvalof the Premier.

The respondent argued that this process isunlawful because he was not given prior noticeof the appellant’s intention to expropriate hisproperty, and was thus not given an opportuni-ty to make representations to the appellantbefore it took the decision to expropriate (atpara 6). This argument was successful beforethe Eastern Cape division of the High Court.The court in this case, per Nugent JA, statedthe common-law rule in this respect, relying onSouth African Roads Board v JohannesburgCity Council 1991 (4) SA 1 (A), at 10G-I (foot-notes omitted):

“[W]hen a statute empowers a public official orbody to give a decision prejudicially affecting anindividual in his liberty or property or existingrights, the latter has a right to be heard before thedecision is taken…unless the statute expressly orby implication indicates the contrary”.

The ordinance provides that once the prelimi-nary notice is given, the owner of the propertyis restricted from alienating, disposing of or let-ting the land, or impairing its value in any way.The respondent submitted that the restrictionsthemselves prejudicially affect his rights,whether or not he was planning to alienate, dis-

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pose of or deal with the property in any similarmanner (at para 11). The court assumed infavour of the respondent that the restrictionsdid indeed affect his rights, and went on todetermine if procedural fairness demandedthat he be given a hearing before the decisionwas taken. The crux of the court’s argumentwas that no unfairness arises from the absenceof an opportunity to be heard by the municipal-ity before it decided to expropriate the proper-ty, when the entire effect of the taking of thedecision is to preserve the status quo:

“Even when pressed to do so, the respondent’scounsel could not tell us in what manner the tem-porary preservation of the status quo without aprior hearing operated unfairly upon the owner ofproperty that was marked for expropriation. Norcan I see how it might operate unfairly. (I havealready drawn attention to the fact that it had noadverse effect in the present case.) Its effect willbe felt only by an owner who would otherwisehave acted to alter the status quo; yet it is in pre-cisely such a case that the ordinance and the pub-lic interest requires that he be prevented fromdoing so. It is not the preservation of the statusquo itself that prejudices the owner but rather thefact that he might be dispossessed of his property,but he has a full opportunity to be heard beforethat occurs.” (at para 14)

Bearing in mind that the principle of audialteram partem must now be seen in the con-text of the Constitution (particularly section33 and item 23(2)(b) of Schedule 6 to theConstitution which, the court pointed out,operated at all times material to this case),the court concluded that the respondent wasnot entitled to a hearing before the decisionwas taken, and that this situation was notunfair or unconstitutional:

“Clearly the ordinance does not envisage a hear-ing before the local authority’s decision is taken -that the owner is invited to object only after thedecision is made necessarily means that no objec-tion before then is contemplated - and this con-struction is not in conflict with the Constitution.” (atpara 15)

Common-law review – Ultra vires

In Governing Body, Mikro Primary School,and Another v Minister of Education,Western Cape, and Others 2005 (3) SA 504(C) (the facts appear above under heading“Section 6(2)(c) – Procedurally fair administra-tive action”; see also “Section 7 – procedure for

review”), it was argued that the directive issuedby the second respondent was unlawful in thatthe South African Schools Act, 84 of 1996, didnot authorise to make an order of the nature hedid. In considering the relevant legislation,Thring J held:

“[E]ven using the machinery of s 22 of the SchoolsAct, it is not open to a provincial education depart-ment to override the properly established languagepolicy of a single-medium public school by proclaim-ing it a parallel-medium school unless it has firstbeen established that all the other public schools inthe school district concerned, in which tuition isgiven in the other language, are full: see LaerskoolMiddelburg en ’n Ander v Departementshoof,Mpumalanga Departement van Onderwys enAndere 2003 (4) SA 160 (T) at 170I-171A, 171G and173G.” (at 520G-I)

The judge concluded that

“the second respondent’s directive of 2 December2004 was unlawful. It follows that both his decisionto issue the directive and his subsequent decisionto put it into operation when the school opened on19 January 2005 were likewise unlawful.” (at521D)

Important to the judge’s reasoning was the factthat the legislation provided the respondentswith remedies to achieve the outcome theysought. In this light, the route they chose topursue the desired outcome, not authorised bythe Act, could only be construed as unlawful.

Note: Although the judge did not refer to PAJAin deciding the unlawfulness point, PAJAmakes provision for reviewing administrativeactions if the administrator who took the actionwas “not authorised to do so by the empower-ing provision” (section 6(2)(a)(i)). This pointcould have been decided with reference to thisprovision of PAJA.

On appeal, in Western Cape Minister ofEducation and others v Governing Body ofMikro primary School [2005] 3 All SA436(SCA), the court, per Streicher JA, agreed (atpara 43).

Common-law review – Delay

In Ntame v MEC, Dept of SocialDevelopment, Eastern Cape; Mnyaka vMEC, Dept of Social Development, EasternCape; Mnyaka v MEC, Dept of Social

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Development, Eastern Cape [2005] 2 All SA535 (SE) (see discussions under headings“Section 7 – procedure for review”, “Section 9– Variation of time”, “Item 23 of Schedule 6 tothe Constitution”, “Common-law review –Exhaustion of internal remedies”), the courtfound that PAJA did not apply. It therefore con-sidered whether the applicants’ delay inlaunching proceedings was fatal to their appli-cation for review. All three applicants gaveexplanations for the delay in their foundingpapers. Plasket J held that while this is not usu-ally necessary, in cases where the delay is“manifestly inordinate” it is incumbent on theapplicant to explain the delay rather than waitfor the respondent or the court to raise theissue of delay. (at para 18) The positions of theapplicants and the explanations given by themfor the delay are similar. They argue that theyare uneducated people with little formal educa-tion, and only became aware of their rightswhen they approached an NGO, the Centre forHuman Rights, Community Advice andDevelopment. The causes of action in thecases arose in 1999 and 1997. The Notices ofMotion in all the cases, however, were onlyissued on 8 November 2004. Plasket J’sresponse to the delay was the following:

The conclusion is inescapable, in my view, that thedelays from the time of the causes of action aris-ing to the launching of all three of these applica-tions, when viewed objectively, are unreasonablylong, even though, once the applicants wereplaced in contact with attorneys who could advisethem and represent them, the steps that followedwere taken with reasonable haste.” (at para 24)

The judge nevertheless condoned the appli-cants’ delay. Two things were persuasive inreaching this conclusion. The first was thatsection 34 of the Constitution enshrines a rightto access to courts, and that, given the embed-ding of the doctrine of legality in our legal orderby section 1(c) of the Constitution, courtsshould allow as few invalid exercises of publicpower to “slip through the net” as possible. (atpara 25) Second, the judge bore in mind thefact that the applicants were seeking to protectthe right to social assistance, through the rightto administrative action. It was important in thisrespect that the applicants were drawn fromthe “very poorest within our society” and “havethe least chance of vindicating their rightsthrough the legal process”. (at para 25)

Common-law review – Exhaustion ofinternal remedies

After deciding that PAJA did not apply inNtame v MEC, Dept of Social Development,Eastern Cape; Mnyaka v MEC, Dept ofSocial Development, Eastern Cape; Mnyakav MEC, Dept of Social Development,Eastern Cape [2005] 2 All SA 535 (SE) (seediscussions under headings “Section 7 – pro-cedure for review”, “Section 9 – Variation oftime”, “Item 23 of Schedule 6 to theConstitution”, “Common-law review – Delay”),Plasket J considered the obligation to exhaustinternal remedies from the perspective of thecommon law. He stated the rule thus:

“[The] rule is to the effect that the jurisdiction of thecourts to review administrative action is onlydeferred if and to the extent that statute creates,either expressly or impliedly, an obligation to firstexhaust internal remedies. The rule is appliedsparingly because ‘generally an aggrieved per-son…should have unrestricted access to the courtto seek redress’. There certainly is no general rulethat a ‘person who considers that he has suffereda wrong is precluded from having recourse to acourt of law while there is hope of extra-judicialredress’ and the ‘mere fact that the Legislaturehas provided an extra-judicial right of review orappeal is not sufficient to imply a intention thatrecourse to a court of law should be barred untilthe aggrieved person has exhausted his statutoryremedies’.” (at para 31, footnotes omitted)

The judge concluded that the failure of theapplicants to exhaust internal remedies wasnot fatal to the application. Although section 10of the Social Assistance Act, 59 of 1992 cre-ates a right of internal appeal, there is no pro-vision in the Act that places an obligation on anaggrieved person to exhaust this remedy. Inany event, the period of 90 days prescribed inthe Act for launching such an appeal was longpast. (at para 32)

THE PROMOTION OF ACCESS TOINFORMATION ACT (PAIA)

In Trustees, Biowatch Trust v Registrar:Genetic Resources, and Others 2005 (4) SA111 (T), the applicants had made a number ofrequests for access to information held by therespondents. The second and third respon-dents were the Council established in terms ofthe Genetically Modified Organisms Act, 15 of1997 and the Minister of Agriculture, while the

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fourth to sixth respondents were companiesinvolved in the research and development, pro-duction, and sale of genetically modified fooditems. The respondents objected to therequests from the applicants on the basis thatthey had neither exhausted internal appealprocedures before approaching the courts asrequired by PAIA, nor complied with the proce-dures stipulated in PAIA (at para 12).

The first question considered by the court,however, was whether PAIA applied at all at thetimes the requests were made by the appli-cants. All four of the requests made by theapplicants were made between 17 July 2000and 26 February 2001. PAIA was assented toby the President on 2 February 2000, but cameinto operation, upon proclamation to that effectin the Government Gazette only on 9 March2001. The requests were thus made duringwhat Dunn AJ called the “hiatus period” (atpara 19). The “cardinal question”, the judgesaid,

“therefore had to be whether PAIA applies to therequests for information that Biowatch had madeprior to PAIA’s provisions coming into effect. Quiteobviously, if PAIA did apply retrospectively torequests that had already been made byBiowatch, it would have been obliged to follow theprocedures set out therein.” (at para 27)

The judge went on to list five reasons why PAIAcould not be read as having retroactive effect.First, there is a common-law presumptionagainst the retroactive application of laws. Ascounsel for the amicus curiae pointed out,there was no clear legislative intent in PAIA thatwould support the reversal of this presumption(at para 28(a)). Second, if PAIA was appliedretrospectively, requests for access to informa-tion that had been validly and properly in termsof the legislation operative prior to the cominginto operation of PAIA, would be renderedinvalid despite their validity at the time theywere made (at para 27(b)). Thirdly, and similar-ly, if a request made prior to the coming intoeffect of PAIA was refused, the requester wouldbe entitled to institute proceedings in terms ofPAIA before it came into effect:

“If the state of litis contestatio were to be reachedafter PAIA comes into effect, the requester couldstill be divested of his or her rights if they failed tofollow the procedure set out in PAIA in the event ofits being applied retrospectively”. (at para 27(c))

Fourth, section 32 of the Constitution is intend-ed to increase access to information. If it wereto be applied retroactively in a way that frus-trates that intention, it would be at odds withthe Constitution (at para 27(d)). Fifth, section2(1) and (2) of the National EnvironmentalManagement Act, 107 of 1998, enjoins thecourts to interpret legislation relating to envi-ronmental matters in such a way that the spirit,purport, objects and principles of the Act aregiven effect to. To interpret PAIA in the mannercontended for by the respondents would runcontrary to the spirit and objects of the NationalEnvironmental Management Act.

The judge then pointed out that, althoughCurrie and Klaaren, the authors of thePromotion of Access to information ActCommentary are of the view that the transition-al arrangements set out in item 23(2)(a) ofSchedule 6 to the Constitution remained inforce during the hiatus period, the judge held,with reference to the SCA decision inInvestigating Director of the InvestigatingDirectorate: Serious Economic Offences andAnother v Gutman NO 2002 (4) SA 230 (SCA),that section 32 of the Constitution operated inits unqualified form during this period (at para29). In the result, Dunn AJ held:

“Consequently, if one were to apply PAIA’s provi-sions retrospectively in the manner contended for bythe respondents those provisions would certainlyinterfere with Biowatch’s then existing rights,because it would have the effect of rendering itsrequests for information invalid simply on thegrounds that they were not made in terms of, and didnot comply with, PAIA, which was not, in any event,in force at the time such requests were made. Inturn, it would have the further effect of denyingBiowatch the very right it was seeking to exerciseunder s 32 of the Constitution.” (at para 29)

The judge held that PAIA did not have retroac-tive application, and that its provisions couldnot be applied retroactively to frustrate theapplicants’ requests for access to information.

Section 32 of the Constitution andPAIA

The applicants in Institute for Democracy inSA and Others v African National Congressand others [2005] 3 All SA 45 (C) aimed to

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“establish the principle that political parties, or atleast those who hold seats in the national, provin-cial and local government legislatures, are obligedin terms of section 32(1) of the Constitution andsection 11 or section 50 of the [PAIA] to discloseparticulars of all the substantial donations theyreceive, on due and proper request for those par-ticulars made by any adult South African citizen.”(at para 1)

To this end, the applicants sought access to thedonations records of respondents, the fourlargest political parties in the national legisla-ture. The applicants argued that it was open tothem to rest their cause of action either on theprovisions of section 32 of the Constitution orof PAIA itself (at para 14). The respondentsargued, however, that PAIA now provides theexclusive statutory regime governing access toinformation. They essentially argued that aparty is not entitled to rely directly on the provi-sions of section 32. Griesel J referred to theopinion of Currie and Klaaren in the Promotionof Access to Information Commentary (2002)at pp 25-26. The judge said:

“It appears, therefore, that the learned authorsenvisage a twofold role for section 32: the one to‘inform’ the interpretation of PAIA; the other is toserve as a basis for a possible challenge to theconstitutionality of PAIA for being either under-inclusive or over-restrictive.

. . . .In these circumstances, it is clear to my mind thatsection 32 of the Constitution provides the under-lying basis for and informs the rights contained inPAIA, but that the section itself is subsumed byPAIA, which now regulates the right of access toinformation.” (at para 17)

Relying on Hoexter, The New Constitutionaland Administrative Law vol 2 – AdministrativeLaw (2002), who argues that parties mustassert the right via PAIA (see p 57), the judgeconcluded:

“In my view, therefore, section 32 is not capable ofserving as an independent legal basis or cause ofaction for enforcement of rights to access to infor-mation in circumstances such as the presentwhere no challenge is directed at the validity orconstitutionality of any of the provisions of PAIA.”(at para 17)

Section 32(1)(b) of the Constitution states thateveryone has the right to access informationheld by another person if that information isnecessary for the exercise or protection of anyrights. This requirement is repeated in section

50(1)(a) of PAIA. Clutchco Pty (Ltd) v Davis2005 (3) SA 486 (SCA) (see discussionsbelow) concerned a request from the respon-dent for access to the appellant company’sbooks of first accounting entry. The respondentheld 30% of the share capital of the appellant,although he had been removed as a director ofthe company. He argued that the informationwas necessary for the exercise or protection ofhis right to know the actual financial position ofthe appellant company, as it would allow him toascertain the true value of his shares (at para4). The question arose as the scope of thewords “any rights” in section 32(1)(b) of theConstitution and section 50(1)(a) of PAIA. Thecourt, per Comrie AJA, however, chose not todecide this question:

“We listened to argument about the meaning ofthe words ‘any rights’ in s 32(1)(b) of theConstitution and in s 50(1)(a), read with s 9(objects) of the statute, and on whether the under-lying right asserted by the respondent fell withinthe ambit of that phrase. In the view I take of thematter, however, it is unnecessary to express anyviews on those questions, and it would be wisernot to do so without the benefit of opposing argu-ment.” (at para 10)

Section 1 – Definitions

Depending on whether a body is a public bodyor a private body, different sections of PAIAapply in respect of attempts to access informa-tion held by such bodies. Both “public body”and “private body” are defined in section 1.

In Institute for Democracy in SA and Othersv African National Congress and others[2005] 3 All SA 45 (C) (the facts appear aboveunder the heading “Section 32 of theConstitution and PAIA”) the applicants arguedthat political parties are institutionalised withinthe legal system, and play the constitutive rolein the democratic process, the legislature andconsequently the executive (at para 24). Theyare thus public bodies within the meaning ofsection 1 of PAIA, so the argument went. Therespondents on the other hand emphasisedthe voluntary nature of political parties, andpointed to the fact that they are created andregulated by their own constitutions and not bylegislation in arguing that they fall within thedefinition of private bodies for the purposes ofsection 1 of PAIA.

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Griesel J adverted to the use of the word“when” in section 1 and the provisions of sec-tion 8 of PAIA in concluding that

“the definition of ‘public body’ is a fluid one andthat the division between the categories of publicand private is by no means impermeable. The actrecognises the principle that entities may performboth private and public functions at various timesand that they may hold records relating to bothaspects of their existence. The records beingsought can thus relate to a power exercised or afunction performed as a public body, in which evenPart 2 of PAIA is applicable, or they can relate to apower exercised or a function performed as a pri-vate body, in which event Part 3 of PAIA is appli-cable. The language of section 8(1) makes it clearthat, in respect of any particular record, a bodymust be either a ‘public body’ or a ‘private body’; itcannot be both. Whether it is one or the other thusdepends on whether the record ‘relates to’ theexercise of a power or performance of a functionby that body ‘as a public body’ or ‘as a privatebody’.” (at para 29, footnotes omitted)

The judge concluded that since the recordssought relate to the private fundraising activi-ties of the various political parties, the matterhad to be approached on the basis that, forpurposes of their donation records, the respon-dents are “private bodies” and not “public bod-ies” (at paras 30-32).

Section 50 - Right of access to records ofprivate bodies

PAIA requires in section 50(1)(a) that a personrequesting information from a private bodymust show that the information is necessary forthe exercise or protection of any rights. InInstitute for Democracy in SA and Others vAfrican National Congress and others[2005] 3 All SA 45 (C) Griesel J said that theright to access information held by private bod-ies is not a right that exists in the abstract.Rather, the inquiry is a factual one, and theperson seeking the information must make outa case for it on the papers:

“As was said in the Cape Metropolitan Councilcase [Cape Metropolitan Council v MetroInspection Services (Western Cape) CC and oth-ers 2001 (3) SA 1013 (SCA); 2001 (10) BCLR1026 (SCA)] the applicants must not only showwhat the rights for which they contend are that andwhat the information is, but they must also demon-strate how the information will assist them in exer-cising or protecting those rights.” (at para 46)

The judge eventually concluded that on the evi-dence presented to him by the applicants, itwas not possible to find that the documentationrequested was required for the exercise or pro-tection of their rights.

In Clutchco (Pty) Ltd v Davis 2005 (3) SA486 (SCA) (see comments above under head-ing “Section 32 of the Constitution and PAIA)the question arose whether the right assertedby the respondent, the protection or exercise ofwhich the information requested was allegedlynecessary for, fell with the ambit of section50(1)(a). The court disposed of the matter onother grounds, and did not decide the question.

The underlying right which the respondent assertsis his right as a shareholder to value his share-holding in order to fix an appropriate selling price.I shall assume, without deciding, that the right is aright within the compass of Part 3 of the statute.”(at para 11)

In deciding the matter, Comrie AJA said for thecourt that the respondent had failed to estab-lish that the information requested was neces-sary for the exercise or protection of his rights:

“In enacting PAIA, Parliament could not haveintended that the books of a company, great orsmall, should be thrown open to members on awhiff on impropriety or on the ground that relative-ly minor errors or irregularities could haveoccurred. A far more substantial would berequired.” (at para 17)

Section 78 – Exhaustion of internalremedies

It was held in Trustees, Biowatch Trust vRegistrar: Genetic Resources, and Others2005 (4) SA 111 (T) (see discussion above andbelow under heading “Chapter 4 Part 2 –refusal of access to information”) that PAIA didnot operate retroactively. The judge neverthe-less considered the argument of counsel forthe fourth respondent that rights of access toinformation accrued during the hiatus periodand that the coming into effect of PAIA did notaffect this right. No unfairness could be found,counsel for the fourth respondent submitted,“in applying PAIA to all applications for accessto information initiated after its commence-ment” (at para 31). If PAIA was applicable,then, the applicant had failed to exhaust inter-nal remedies as required by section 78, and

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the application was premature. Dunn AJ’sresponse was the following:

“My earlier finding to the effect that the provisionsof PAIA cannot - indeed should not - be appliedretrospectively so as to render any of Biowatch’srequests for information invalid solely becausethey did not comply with PAIA, does not entirelydispose of Mr Wilson’s latter, not entirely unattrac-tive, argument. After all, Biowatch’s fourth requestwas only made on 26 February 2001, ie someeleven days prior to PAIA coming into operation.Since internal appeals have to be lodged within 60days, it would have been possible for Biowatch, ifit was indeed obliged to follow the internal appealroute, to have done so. The complete answer tothis argument on behalf of the first to third respon-dents and Monsanto is this: s 78 of PAIA onlyrequires a requester or third party to exhaust ‘theinternal appeal procedure against a decision of theinformation officer of a public body provided for ins 74’. (My emphasis.) Section 74(1) of PAIA in turnonly makes provision for an internal appealagainst a ‘public body’ as contemplated in para (a)of the definition of that expression in s 1 of PAIA.The Registrar and the Council are clearly not pub-lic bodies of the kind contemplated in para (a) ofthat definition.” (at para 32, footnotes omitted)

The judge concluded that the section did notconstitute an obstacle to the relief claimed bythe applicants.

Section 82 – Relief

Section 82 of PAIA authorises a court to grantany order that is just and equitable in the cir-cumstances. In Institute for Democracy inSA and Others v African National Congressand others [2005] 3 All SA 45 (C) (see dis-cussions above in this section), Griesel J heldthat in light of the evidence presented by therespondents, the question of whether fundingof political parties should be made public is acomplex policy issue best left to the legislature(at para 54). It would not therefore have beenjust and equitable to grant the relief claimed bythe applicants.

Chapter 4 Part 2 – Refusal of access toinformation

In Trustees, Biowatch Trust v Registrar:Genetic Resources, and Others 2005 (4) SA111 (T) (see above under headings “Promotionof Access to Information Act (PAIA)” and“Section 78 – Exhaustion of internal reme-dies”), the fourth to sixth respondents relied on

the regime provided in chapter 4 part 2 of PAIAto justify refusal of access to the informationrequested by the applicants. In this regard thejudge pointed out that

“The right of access to information is not anabsolute right and it has to be balanced with justi-fiable governmental and private concerns formaintaining confidentiality of certain information.”(at para 39)

Dunn AJ went on to consider the retrospectivi-ty of this part of PAIA:

“I stated earlier that the provisions of PAIA cannotbe applied retrospectively to nullify the validity ofBiowatch’s requests for information. But I am notconvinced that it cannot be applied retrospectivelyto the degree that the Registrar would be entitledto rely on the provisions of ch 4 of Part 2 thereofas grounds for refusal of access to the recordssought.” (at para 40)

The judge concluded that since the applicantnever had an absolute right of access to infor-mation under section 32(1)(a) of theConstitution, it would be unfair if the respon-dents were precluded from justifiably refusingaccess to the information sought. Since PAIAwas enacted to give effect to the rights in sec-tion 32, he judge held that

“it would not be unfair to Biowatch, or for that mat-ter any of the other parties involved in this appli-cation, if the grounds for refusal of access torecords contemplated in ch 4 of Part 2 of PAIAwere to find application. I say that it will not beunfair to Biowatch, because it never had anyabsolute right of access to information. At best itsright for access to information was subject to thegeneral limitation clause in s 36 of theConstitution. Obviously the onus of justifying sucha limitation would be on the party who seeks tolimit the right. The same applies to PAIA, becausethe burden of establishing that the refusal of arequest for access is justified rests on the partyclaiming the refusal. The retrospective applicationof PAIA to the degree indicated also promoteseven-handedness in the operation of the law andavoids the difficulty of undertaking the balancingexercise crafted in the provisions of ch 4 of Part 2of PAIA.

In view of these considerations, I am of the viewthat the Registrar would be entitled to rely on theprovisions of ch 4 of Part 2 of PAIA to refuseaccess to any record - if he were honestly andbona fide of the opinion that such a refusal is jus-tified - on the grounds contemplated in ch 4 of Part2 of PAIA: Provided, of course, that he would not

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be entitled to do so merely because Biowatch’srequests for information were not made in the formor in the manner prescribed in PAIA.” (at paras 40-41, footnotes omitted)

The judge made an order consonant with theviews expressed in para 41 of the judgment.

E Bray: “Legal perspectives on global envi-ronmental governance: South Africa’sPartnership role” (2005) vol 68 n 2 Tydskrifvir Hedendaagse Romeins-Hollandse Reg210 (part 1) and (2005) vol 68 no 3 Tydskrifvir Hedendaagse Romeins-Hollandse Reg357 (part 2). The article investigates how thelaw provides a framework for the goals of envi-ronmental governance: sustainable develop-ment, intra- and intergenerational equity, allevi-ation of poverty and improvements in quality oflife. The article examines how the law can reg-ulate the relationship between human beingsand their environment. The “environment” inthis sense embraces both the natural environ-ment (renewable and non-renewableresources) and the human environment(human-made and socio-cultural environment).

A Pillay: “Reviewing reasonableness: anappropriate standard for evaluating stateaction and inaction” (2005) vol 122 no 2South African Law Journal 419. One of themost important issues facing administrativelaw, the article points out, is the role of thecourts in constitutional democracy. The presentconstitutional climate requires courts to devel-op a theory of deference that introduces somelevel of variability into the way in which stateaction is scrutinised by the courts. The articleexplores this theme in respect of the doctrine oflegality under the Constitution, reasonable-ness, socio-economic rights, and delictualclaims for unreasonable state omissions.

ARTICLESAND REVIEWS

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