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.

3

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 States of America. If one were to substitute the

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

that assessment would not be wholly inapposite in respect 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 reverberated through the 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 times. References

to “the Oudekraal principle” abound in the law reports and law journals,

and “the Oudekraal principle” is frequently invoked as authority to settle

questions of administrative 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

concurring). This is partly attributable to the plethora of ensuing judgments

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

in pellucid terms.

In general terms, Oudekraal addressed the question “whether, or in what

circumstances, an unlawful administrative act might simply be ignored, and

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

experience has demonstrated, though, that delineation of the question under

consideration was deceptive in its simplicity, 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

© Juta and Company (Pty) Ltd

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 argued (pace some readings of Oudekraal) that one

should not elevate the notion that apparently invalid administrative 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 article revisits Oudekraal and explores recent 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 bound by that action, and is required to treat it as valid and

binding, unless and until it is declared invalid and set aside on judicial

review;

(ii) that an organ of state that has performed an administ 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 valid, unless and until it is declared invalid

and set aside on judicial review; and/or

(iii) that organs of state other than the author of the impugned action are

bound by that action and may not disregard it unless and until 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 unlawful administrative action and,

if it were to be enforced against that 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 otherwise authorised by law, generally

also bound by that defective administrative action unless and until it is

set aside on review.

Furthermore, it is erroneous to speak of “the Oudekraal principle” in the

singular. The SCA enunciated several principles in Oudekraal. However,

post-Oudekraal jurisprudence has not always distinguished between these

principles, which causes confusion about the import of Oudekraal. Finally,

it is recommended that, instead of attempting to answer questions (ii) and

(iii) above with reference to elusive principles of uncertain 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 Status and Force of Defective Administrative Decisions Pending Judicial

Pronouncem ent” (2009) 126 SALJ 537

4 STELL LR 2020 1

© Juta and Company (Pty) Ltd

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 disregard

prior administrative decisions, even if such decisions are evidently defective.

The proper functioning of the state would be impaired if an administrative

act could be implemented or ignored depending upon the view taken of its

validity.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 matters are not important considerations in arriving at legally

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

Another reason why organs of state should not be allowed to countermand

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

will not inevitably be set aside on judicial review. The discretionary nature

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

discretion militates against permitting state organs to disregard defective

administrative decisions and requires them to bring the matter on review for

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

administration to decide whether or not a defective decision should stand,

and so to usurp a judicial function. Not only the fact (or the legal conclusion)

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

unlawfulness) should remain the domain of the judiciary. Again, however,

this aspect of the matter is not explored in this article. Instead, this article

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

policy reasons for maintaining a general rule that administrative actors may

not annul seemingly invalid administrative action, there are sound doctrinal

reasons, based on the powers of such actors, for recognising such a general

6 Oudekraal Estates (Pty) Ltd v City of Cape Town2004 6 SA 222 (SCA) para 26 As I have written

elsewhere, if compliance with administrative decisions were optional, we would be in jeopardy of

descending down the slippery slope of lawlessness towards anarchy and chaos 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

5

© Juta and Company (Pty) Ltd