'What's Past is Prologue': An Historical Overview of Judicial Review in South Africa — part 2

JurisdictionSouth Africa
Citation(2020) 26(2) Fundamina 424
Date17 March 2021
Published date17 March 2021
D M Pretorius*
This contribution explores the historical origins and development of
judicial review in South Africa, as an indication of shifts in relations
between – and of the relative legal and political powers of – the three
branches of state. It also provides bibliographical details of sources
chronicling these historical processes. The rst part focused mainly
on constitutional review, namely the power of the law courts to test
the validity of statutes against constitutional criteria. This second part
analyses the historical development of administrative law, especially
the common-law evolution of judicial review of the decision-making
processes of organs of state, and how that process unfolded reciprocally
with political shifts in twentieth-century South Africa. There is also a
synopsis of the introduction of administrative law as a discrete subject
in South African law schools. Finally, this contribution briey explores
* BA LLB (Stell) BA (Hons) LLM PGCE (SA) PhD (Witwatersrand). Partner:
Bowmans, Johannesburg. The author is very grateful to the anonymous
reviewers of both parts of this contribution for having undertaken the laborious
task of reviewing it, and for their insights, suggestions and corrections.
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historical aspects of the role of interpretation of statutes in the context
of administrative law, and briey touches on special statutory review
as distinct from common-law review.
Keywords: judicial review; administrative law; martial law; interpretation of
statutes; university law schools
7 Common-law review of proceedings of public
authorities / administrative tribunals
7 1 Exordium
Administrative law, as a distinct branch of the law, would have been
well-nigh inconceivable to the editors of Justinian’s Corpus Iuris
Civilis (not to mention classical jurists, such as Gaius, let alone the
decemviri who compiled the Leges XII Tabularum). In England, the
fons et origo of our system of administrative law, this branch of
the law only emerged as a discrete legal discipline in the twentieth
century (and perhaps substantially so only after World War II). By
the late 1950s, judicial review in England still “lacked breadth and
depth”.1 As late as 1964, no less a luminary than Lord Reid opined
that England did not have a developed system of administrative
law (and surmised that this was “because until fairly recently
we did not need it”).2 It is therefore unsurprising that the systematic
study of admini strative law in South Africa really only commenced
in the 1960s.
Nevertheless, the seeds of judicial review of the proceedings of
public authorities were sown and incrementally propagated by the
courts long before jurists had any conscious conception of principles
– let alone a system – of administrative law.3 The rudiments of a
nascent body of principles grew tentatively as the judiciary began
to grapple with the appearance and proliferation of public bodies
clothed with power to regulate various aspects of human existence:
municipal councils, building and valuation agencies, liquor and
1 Woolf, Jowell & Le Sueur 1999: 6.
2 Ridge v Baldwin [1964] AC 40 at 72.
3 As long ago as 1887, FW Maitland (later Downing Professor of the Laws
of England in the University of Cambridge) wrote that “[i]f you take up a
modern volume of the reports of the Queen’s Bench division, you will nd
that about half the cases reported have to do with rules of administrative law”
(quoted by Baxter 1984: 2).
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business licensing tribunals, electoral authorities, mining regulatory
bodies and immigration ofces. The question arose whether these
governmental structures, rapidly appearing in diverse incarnations
that would eventually come to be recognised as administrative
authorities and tribunals familiar to us today, had untrammelled
power to make far-reaching decisions affecting social life and
economic activity. Instinctively, the courts recoiled from any
notion that such bodies could operate beyond the purview of the
law. Judges asserted the power to scrutinise and, where necessary,
intervene in the decision-making proceedings of these bodies. Over
time, there evolved precepts that governed the manner in which
these agencies of state power had to exercise their powers, and the
circumstances in which the courts could legitimately interfere with
their proceedings.
Perhaps the kernels of these principles, destined to become
keystones of the subsequent edice of administrative law, are
discernible, albeit dimly, in the works of Roman and Roman-Dutch
jurists.4 However, insofar as they are relevant for present purposes,
these principles originated principally in English law and were
transplanted to our legal soil by the judicial horticulturists and
agronomists on the bench of the Supreme Court of the Colony
of the Cape of Good Hope. The early volumes of the Cape law
reports yield many examples of instances5 in which the Supreme
4 For example, Roman law recognised that the power of the Princeps (the Emperor
or Sovereign) to revoke or alter his own decisions was circumscribed: Gane
1955: 78–90; Nathan 1904: 48–51; Sachs v Donges NO 1950 (2) SA 265 (A).
See, also, Kellaway 1995: 39ff; Steyn 1981: 103–104.
5 See, eg, In re Insolvent Estate of Brink (1828) 1 Menz 340 (regulations not duly
promulgated do not have force of law); Municipality of Graham’s Town v Ford
& Jeffreys (1844) 3 Menz 506; Municipality of Green Point v Powell’s Trustees
(1848) 2 Menz 380 (creature of statute has only such powers as conferred by
enabling legislation); Pote v Commissioners of Graham’s Town Municipality
(1851) 1 Searle 131 (regulations beyond ambit of enabling legislation invalid);
Re Cape Town Municipality; Wardmasters v Commissioners 1864 SC 74 (“The
abstract legal question is – have they the power claimed?”); Paarl Board of
Executors v Civil Commissioner of Paarl (1870) 3 Buch 1 (nemo iudex in sua
causa); Stigant v Town Council of Cape Town (1874) 4 Buch 93; Raubenheimer
v Bland and the Divisional Council of Riversdale (1874) 4 Buch 139 (election
declared void); Bottomley v Kimberley Mining Board (1882) 1 SC 380 (“unless
the illegality … affected the result … the Court will not set it aside”); Wichura
v Powrie (1888) 6 SC 132 (functionary may not abuse ofce); Barnett & Co
v Namaqualand Licensing Court (1891) 8 SC 231 (audi alteram partem);
New Gordon Diamond Mining Co v Du Toit’s Pan Mining Board (1892)
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