New procedures for the judicial review of administrative action

• Author: Geo Quinot
• DOI: 10.10520/EJC153225
• Published date: 01 January 2010
• Date: 01 January 2010
• Pages: 646-665

*

BA LLB (Stellenbosch) LLM (Virginia) LLD (Stellenbosch). Professor, Department of Public Law,

Stellenbosch University. My thanks to Petrus Maree for expert research assistance and discussion,

to Cora Hoexter for her very helpful comments on an earlier draft and to Ina Botha of the Department

of Justice and Constitutional Development and Clair Hartley of the Rules Board for Courts of Law

for providing me with relevant documentation and information. I take sole responsibility for the views

expressed here.

1

In this article ‘judicial review’ is generally used to refer only to judicial review of administrative action

and not to the broader notion of constitutional judicial review.

2

Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of the Republic of South

Africa 2000 2 SA 674 (CC) para 45; Corder ‘Administrative justice: A cornerstone of South Africa’s

democracy’ (1998) 14 SAJHR 38.

New procedures for the judicial review

of administrative action

Geo Quinot

*

Abstract

New Rules of Procedure for Judicial Review of Administrative Action in terms of the

Promotion of Administrative Justice Act 3 of 2000 were approved by Parliament in 2009

following an arduous eight-year drafting process. Once in operation these new rules will

replace the current procedure for judicial review of administrative action under rule 53 of the

Uniform Rules of Court. The new rules differ in crucial aspects from the current position,

particularly in relation to access to the record of the administrative action under scrutiny. The

new pre-litigation discovery mechanism reduces the extent of access to the full record and

grants administrators significant discretion in determining what can be accessed and in what

manner. The new rules also seemingly replace the existing procedures for requesting

reasons for administrative action. The introduction of the new rules is not a positive

development towards administrative justice in South Africa. While it is doubtful whether the

new rules will reduce the burden on administrators in relation to judicial review, they will most

likely result in reduced transparency in administration.

Introduction

Judicial review of administrative action

1

is one of the cornerstones of South African

democracy.

2

It forms part of the core of the right to administrative justice guaranteed

New procedures for the judicial review of administrative action 647

3

Chapter Two of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’).

4

It is bolstered by the right of access to courts guaranteed in s 34 of the Constitution.

5

Act 3 of 2000 (‘PAJA’).

6

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC) para 25.

7

Higher courts not subject to the uniform rules have their own corresponding rules of procedure for

judicial review of administrative action, primarily rule 11 of the Constitutional Court Rules and rule

7A of the Rules for the Conduct of Proceedings in the Labour Court.

8

PAJA s 7(3).

9

PAJA ss 1(iv) and 9A.

10

GN R 966 in GG 32622 of 2009-10-09.

11

Hoexter ‘The future of judicial review in South African administrative law’ (2000)117 SALJ 484.

12

The new rules did not come into operation upon publication in the Gazette, but will come into effect

on a date to be determined by the Minister of Justice.

in section 33 of the Bill of Rights

3

and accordingly enjoys the status of a fundamental

right.

4

The section 33 right to administrative justice is fleshed out in the Promotion of

Administrative Justice Act (PAJA),

5

which is considered to be a codification of the

grounds of review of administrative action.

6

However, since the enactment of PAJA

the procedure for bringing judicial review applications has not changed and still

follows the approach developed under common law in terms of the inherent

jurisdiction of the High Courts. It is the exclusive domain of the higher courts

(principally the High Courts, Supreme Court of Appeal and Constitutional Court) and

the procedure is mostly governed by the Uniform Rules of Court, in particular rule 53,

but also rule 6.

7

This is all set to change. Since its inception, the PAJA envisaged

special, tailor-made rules to be created for judicial review under the Act.

8

The PAJA

furthermore opened the door to judicial review in the lower courts.

9

Following an

arduous eight-year process, new Rules of Procedure for Judicial Review of

Administrative Action (‘the new rules’) were approved by Parliament in February

2009 and published in the Government Gazette in October 2009.

10

The new rules differ from the current procedure available under rule 53 in

crucial aspects. As the road to judicial review, this new approach merits close

attention within the framework of the constitutional guarantee of administrative

justice. Given the reality that judicial review is still (unfortunately) the main

ingredient in South African administrative law,

11

and hence in achieving

administrative justice, it becomes even more important to scrutinise the new rules

for their import and potential impact.

This contribution provides an analysis of the new rules. It argues that the new

rules raise a number of red flags in relation to the promotion of administrative

justice that will have to be monitored closely once these rules come into effect.

12

Background history

Rule 53

In order to properly understand the developments around the new rules it is