Oudekraal after Fifteen Years: The Second Act (or, A Reassessment of the Status and Force of Defective Administrative Decisions Pending Judicial Review)

• Jurisdiction: South Africa
• Date: 01 June 2020
• Published date: 01 June 2020
• Citation: (2020) 31 Stell LR 3
• Pages: 3-36
• Author: Pretorius, D.M.

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OUDEKRAAL AFTER FIFTEEN YEARS: THE

SECOND ACT (OR, A REASSESSMENT OF

THE STATUS AND FORCE OF DEFECTIVE

ADMINISTRATIVE DECISIONS PENDING

JUDICIAL REVIEW)

DM Pretorius

BA (Hons) LLB LLM PhD PGCE

Partner: Bowmans, Johannesburg; Director: St Augustine College of South Africa

1 Introduction

“Although the basic principles of Meyer and Pierce appear to constitute settled law, the Court’s

opinions are the most delphic in the Court’s history. They have meant many different things to

different persons at different times.”1

Thus did a commentator a ssess the legacy of two landmark decisions of the

Supreme Court of the United Stat es of America. If one were to subst itute the

word “Oudekraal” for the words “Meyer and Pierce” in the above quotation,

that assessment would not be wholly inapposite in re spect of the decision of

the Supreme Court of Appeal (SCA) in Oudekraal Estates (Pty) Ltd v City of

Cape Town.2

The Ou dekraal judgment has reverbe rated through t he decade and a half

that has elapsed since it was handed down. In the eld of administrative law,

it is probably the most annotated SCA judgment of recent t imes. References

to “the Oudek raal principle” abound in t he law reports and law jour nals,

and “the Oudek raal principle” is freq uently invoked as authority to set tle

questions of admin istrative law. Yet, many lawyers would struggle to state

succinctly what principle was est ablished by the Oudekraal judgment (writt en

by Howie P and Nugent JA, with Cameron JA, Brand JA and Southwood AJA

concurri ng). This is partly att ributable to the plethora of ensui ng judgments

that have sought to explain and apply “the Oudekraal pri nciple” – not always

in pellucid terms.

In general ter ms, Oudekraal a ddressed the quest ion “whether, or in what

circumstanc es, an unlawf ul admin istrative act might simply be ignored , and

on what basis the law might give recognition to s uch acts.”3 As subsequent

experience has demonst rated, though , that delineation of the question u nder

consideration was deceptive in its si mplicity, concealing the fact that (as

1 WG Ross “Pierce After Sevent y-Five Years: Reasons to Celeb rate” (2001) 78 U Det Mercy LR 4 43 458- 459

2 2004 6 SA 222 (SCA)

3 Para 1

(2020) 31 Stell LR 3

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Howie P and Nugent JA hastened to point out) it gave rise to “termi nological

and conceptual problems of excr uciating complexity”.4

A decade ago, I endeavoured to explicate Oudekraal and some of its

subsidiary issues. I a rgued ( pace some readings of Oudek raal) that one

should not elevate the notion that apparently invalid ad ministr ative decisions

stand, unless se t aside on judicial review, to an absolute rule:

“There is no unqualied obligation to comply with an administrative decision even if it is prima facie

invalid. Such a broadly-dened principle would be inconsistent with judicial precedent, and is not

supported by Oudekraal.”5

This art icle revisits Oudekraal and explores re cent case law with a view

to underst anding its rami cations more clearly. In par ticular, the question is

whether Oudekraal is aut hority for one or more of the following propositions:

(i) that a private part y affected by administ rative action which is prima facie

unlawful is bou nd by that action, and is requ ired to treat it as val id and

binding, unless and u ntil it is declared invalid and se t aside on judicial

review;

(ii) that an organ of state that h as performed an a dminist rative action which

is prima facie unlawful is bou nd by that action, and must give effect to it

as though it were lawful and va lid, unless and u ntil it is declared invalid

and set aside on judicial review; and/or

(iii) th at organs of state other tha n the author of the impugned act ion are

bound by that action and may not disrega rd it unless and unt il it is

formally declared invalid and s et aside.

The article draws the following conclusions:

(i) Oudekraal conrms that there are circumsta nces in which a subject is

entitled to disregard prima facie un lawful adm inistrative act ion and,

if it were to be enforced against th at subject, to challenge its validity

reactively;

(ii) as a general proposition, a nd absent statutory indications to the cont rary,

the author of seemingly unlaw ful administ rative action may not disregard

that action despite its appare nt legal inr mities; and

(iii) other organs of state are, unless otherw ise authorised by law, generally

also bound by that defective admi nistrative act ion unless and until it is

set aside on review.

Further more, it is erroneous to spea k of “the Oudekraal principle” in the

singular. The SCA enunciated several pr inciples in Oudek raal. However,

post-Oudekraal juri sprudence has not always dist inguished bet ween these

principles, which causes conf usion about the import of Oudekraal. Finally,

it is recommended that, i nstead of attempti ng to answer questions (ii) and

(iii) above with reference to elusive principles of uncert ain provenance and

4 Para 29, quoting SA de Sm ith, H Woolf & JL Jowell Judici al Review of Adminis trative Action 5 e d (1995)

para 5-044

5 DM Pretorius “ The Statu s and Force of Defective Ad minist rative Decisio ns Pending Jud icial

Pronouncem ent” (2009) 126 SALJ 537

4 STEL L LR 2020 1

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import, tho se questions should, in the rst place, be answered with reference

to the provisions of the enabling legislation of the organs of st ate concerned.

2 Policy reasons why state organs should not disregard

defective decisions

There are compelling p olicy reasons why, in the second and third categories

of cases outlined above, organs of state should not be allowed to dis regard

prior admin istrative decisions, even if such decisions ar e evidently defective.

The proper func tioning of the state would be impai red if an admi nistrative

act could be implemented or ignored dep ending upon the view ta ken of its

va li di t y.6 To permit organs of state to disr egard administr ative decisions would

create uncert ainty and open the door to abuses of power.7 However, this article

does not focus on these policy matte rs. Arguably, these policy matters also did

not provide the primar y foundation for the Oudekraal judgment. T hat is not to

say that these matter s are not importa nt considerations in ar riving at legally

sound solutions to the difcu lt problems arising in an O udekraal context.

Another reason why organs of stat e should not be allowed to counterma nd

seemingly awed administ rative acts arises from the fact that an unlawful act

will not inevitably be set aside on judicial rev iew. The discretionary nat ure

of the courts’ remedial review powers wa s highlighted in Oudekraal.8 This

discretion militat es against per mitting stat e organs to disregard defective

administ rative decisions and requir es them to bring the m atter on review for

formal determ ination. It would be a violation of the trias politica to allow the

administ ration to decide whether or not a defective decision should sta nd,

and so to usur p a judicial function. Not only the fa ct (or the legal conclusion)

of unlawfulnes s, but also its consequence (that is, the remedy for such

unlawful ness) should remain the domain of the judiciar y. Again, however,

this aspect of the mat ter is not explored in this ar ticle. Instead, th is article

endeavours to demonstrat e that, in addition to these cogent constitut ional and

policy reasons for maintain ing a general ru le that admin istrative actors may

not annul seemi ngly invalid admini strative action, there a re sound doctr inal

reasons, based on the powers of such act ors, for recognising such a genera l

6 Oudekra al Estates (Pt y) Ltd v City of Cap e Town 2004 6 SA 222 (SCA) para 26 As I have written

elsewhere, if com pliance with a dminis trative deci sions were option al, we would be in jeop ardy of

descendin g down the slippe ry slope of lawlessn ess towards a narchy and cha os See Pretorius (2009)

SALJ 537 565 Also see The Rt Hon the L ord Woolf, Sir Jeffrey Jowell, A L e Sueur, C Donnelly & I Har e

De Smith’s Judicial Re view 7 ed (2013) 227-228

7 In MEC for Hea lth, Eastern Cape v Kirla nd Investments (Pt y) Ltd t/a Eye & Lazer Institute 2014 3 SA

481 (CC) para 103, Cameron J, in hi s customary el oquent tur n of phrase, high lighted the per ils inhere nt in

permitt ing state organ s to ignore defective de cisions Also see L Bo onzaier “Good Revi ews, Bad Actors:

The Constit utional Court ’s Procedural Dram a” (2015) 7 CCR 1 10-11:

“Even when a decision is u nlawful there are … de ep-rooted reasons not t o allow the government to

undo it This is … b ecause governmen t actors can, in see king to have the decision u ndone, exhibit the

very same self-i nterest, par tisanship, a rbitrari ness and other vic es that made the de cision reviewable in

the first pl ace ”

8 2004 6 SA 222 (SCA) para 36:

“[A] court that i s asked to set aside a n invalid admi nistrat ive act in proceed ings for judicial r eview has a

discretion wh ether to gra nt or to withhold th e remedy It is that di scretion that a ccords to judic ial review

its essentia l and pivotal role in admi nistrative law, for it cons titutes the ind ispensable moderat ing tool

for avoiding or min imising injust ice when legality and c ertainty col lide ”

OUDEKRAAL AFTER FIFTEEN YEARS: THE SECOND ACT

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