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

• Jurisdiction: South Africa
• Citation: (2020) 26(2) Fundamina 424
• Date: 17 March 2021
• Published date: 17 March 2021
• Pages: 424-519
• DOI: https://doi.org/10.47348/FUND/v26/i2a6

424

“WHAT’S PAST IS PROLOGUE”:

AN HISTORICAL OVERVIEW OF

JUDICIAL REVIEW IN SOUTH

AFRICA – PART 2

D M Pretorius*

ABSTRACT

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.

https://doi.org/10.47348/FUND/v26/i2a6

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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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