'What's past is prologue': An historical overview of judicial review in South Africa – part 1

• Jurisdiction: South Africa
• Citation: (2020) 26(1) Fundamina 128
• Date: 17 January 2021
• Published date: 17 January 2021
• Pages: 128-198

“WHAT’S PAST IS PROLOGUE”:

AN HISTORICAL OVERVIEW OF

JUDICIAL REVIEW IN SOUTH

AFRICA – PART 1

D M Pretorius*

ABSTRACT

This

contribution

explores

the

historical

origins

and

development

of

judicial review in South Africa as a function and as an indication of shifts

in relations between – and of the relative legal and political powers of

– the three branch es of state. It also provides bibliographical details

of

sources

chronicling

these

historical

processes.

The

contribution

is

published

into

two

parts.

This

rst

part

focuses

primarily

on

the

historical

development

of

constitutional

review,

namely

the

power

of

the courts of law to test the validity of legislation against constitutional

criteria.

The

scope

of

this

power

depends

not

only

on

the

relevant

constitutional

provisions,

but

also

on

the

actual

and

perceived

independence of the judiciary, as well as on judicial dispositions and

socio-political attitudes toward the courts.

This part of the contribution

further

considers

the

origins

of

judicial

review

of

the

proceedings

of

inferior courts and of voluntary associations.

The second part of the article will analy se the historical development

of administrativ e law, with the emphasis on the co mmon-law evoluti on

of judicial review of the administrative decision-making processes of

organs of state.

In addition, it will investigate the growth of administrative

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AN HISTORICAL OVERVIEW OF JUDICIAL REVIEW IN SOUTH AFRICA

129

law as a discrete discipline in South African law schools. Finally, it

will look at the role of the interpretation of statutes in the context of

administrative law.

Keywords: judicial review; constitutional validity of legislation; inferior

courts; voluntary associations

1 Introduction

“A lawyer without history or literature is a mechanic, a mere

working mason; if he possesses some knowledge of these, he may

venture to call himself an architect.” Thus opineth Paulus Pleydell,

Esq. (“a good scholar, an excellent lawyer, and a worthy man”) in

Sir Walter Scott’s 1815 novel, Guy Mannering; or, The Astrologer.

The present contribution has no literary pretensions,1 but does

set out to provide some history. It surveys aspects of the origins

and evolution of judicial review in South Africa. This rst part of

this contribution focuses primarily on the historical evolution of

that species of judicial review, sometimes termed “constitutional

review”, namely judicial review of the constitutional legality of

parliamentary legislation. The courts’ jurisdiction to examine the

constitutionality of Acts of Parliament is sometimes termed their

“testing power”, describing the power of the courts to test the

validity of Acts of Parliament with reference to standards set in the

Constitution (or the supreme law). This part of the contribution

also touches on the origins of judicial review of the proceedings

of inferior courts and of voluntary associations. In the second

part, to be published separately, the focus will shift to the historical

development of judicial review of administrative action, namely

scrutiny by the courts of the acts and decisions of governmental

bodies and of functionaries in the implementation of legislation.

The introduction of administrative law as a discrete discipline in

the law faculties of South African universities will also be explored.

Finally, historical aspects of the interpretation of statutes in the

context of administrative law will briey be considered.

* BA LLB (Stell) BA (Hons) LLM PGCE (SA) PhD (Witwatersrand); Partner:

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

1 On jurists who were accomplished authors, see Blackwell 1909; Blackwell

1910. On law and literature, see Baron 1999; Gest 1913; Kau 2018; Papke

1980; Posner 1989; Rosenthal 1932; Van der Walt 2009.

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D M PRETORIUS

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These areas of our legal system have long provided a barometer

that gauges shifts in the political atmosphere; trends in judicial

review reect political climate change and adjustments in the

relationship and balance of power between the judiciary and the

other branches of the trias politica. Historically, the precepts of

judicial review were developed incrementally by the courts. Thus was

excogitated a corpus of common-law principles that governed the

parameters of the powers of legislative and other public bodies and

functionaries, the modalities of the exercise of such powers, as well

as judicial regulation of the acts of such bodies and functionaries.

These areas of our law have been transformed in the post-apartheid

era of constitutionalism, which accords primacy to fundamental

constitutional principles. The inclusion of a right to administrative

justice in the Bill of Rights has also provided a different bedrock to

our system of administrative law. The enactment of the Promotion

of Administrative Justice Act 3 of 2000 (PAJA) has, for better or for

worse, wrought a veritable transformation, giving a statutory (and

quasi-codied) foundation to our administrative law.

In view of the metamorphosis in our system of constitutional-

cum-administrative law over the last quarter of a century, it may

well be asked whether the historical origins and evolution of that

system remain instructive to present and future generations of

public lawyers. This contribution proceeds from the railhead that

the common-law origins and maturation of that system and its

elemental principles do indeed remain highly relevant in the modern

era.2 Likewise, Chaskalson P said in a pivotal case that the principles

of common law continue to inform the content of administrative

law and other aspects of public law, and will contribute to their

future development.3

2 “Nescire autem quid ante quam natus sis acciderit, id est semper esse

puerum” (“To be ignorant of what occurred before you were born is to

remain always a child.”): Cicero Epistulae ad Brutum Orator 34 § 120.

See, also, Southerland 2003.

3 Pharmaceutical Manufacturers Association of SA: In re ex parte President of

the Republic of South Africa 2000 (2) SA 674 (CC) para 45. See, also, Bato Star

Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4)

SA 490 (CC) para 22; Hoexter 2012: 27–29. The cynic (or the visionary) may

of course say, like Marx 1907: 5, that “the tradition of all dead generations

weighs like an alp on the brains of the living”.

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