The South African judiciary has broad powers of judicial review under the Constitution of South Africa. Courts are empowered to pronounce on the legality and constitutionality of exercises of public power, including administrative action, executive action, and the passage of acts of Parliament. Though informed by the common law principles that guided judicial review during the apartheid era, contemporary judicial review is authorised by and grounded in constitutional principles. In the case of administrative action, it is also codified in the Promotion of Administrative Justice Act, 2000.
The post-apartheid constitutional transition permitted a significant expansion in judicial review, replacing parliamentary sovereignty and executive prerogative with a framework of constitutional supremacy. In contemporary South African constitutional law, the value of the rule of law is taken to imply the principle of legality, which, akin to the ultra vires doctrine, entails that the courts may invalidate any unlawful exercise of power. The Constitutional Court of South Africa has developed several requirements for the lawful exercise of public power, including an elaborate rationality test. Administrative and executive actions which limit a constitutional right may be tested for their proportionality, while the government's efforts to fulfil its constitutional obligations may be tested for their reasonableness.
These standards have been used to strike down decisions by the President of South Africa, both Houses of Parliament, the provincial legislatures, the Speaker of the National Assembly, and various other public agencies, including the National Prosecuting Authority. The Constitutional Court, in particular, has sometimes been accused of undue judicial activism in the use of its powers of judicial review.
History In 1903, Chief Justice James Rose Innes held that the courts were responsible for three broad categories of judicial review: review of proceedings in inferior courts; review at common law of the decisions of administrative authorities; and review conducted in terms of special powers granted upon a court or judge by the legislature.Johannesburg Consolidated Investment Company v Johannesburg Town Council 1903 TS 111 at 115. Although the South African judiciary retained these functions throughout the 20th century, its powers of judicial review were otherwise severely limited during the apartheid era. In Collins v Minister of the Interior,Collins v Minister of the Interior and Another 1957 (1) SA 552 (A) 565. a judgment written by Chief Justice Albert van der Sandt Centlivres in 1956 at the tail-end of the Coloured vote constitutional crisis, the Supreme Court of South Africa severely curtailed its own "testing power" to review acts of the Parliament of South Africa. The Constitution of 1961 did not empower courts to scrutinise statutory provisions, nor did the Constitution of 1983; moreover, neither constitution contained a bill of rights, and each was subject to parliamentary sovereignty and strong executive prerogatives.
During the negotiations to end apartheid, the proper form of judicial review became a central debate in the South African legal establishment. Drawing partly on international models, the constitutional negotiators devised two constitutions – the Interim Constitution of 1994 and the final Constitution of 1996 – which included strong protections for individual rights and for the oversight role of the judiciary. Indeed, in one description, "South Africa consciously adopted judicial review under its Constitution and created a new Constitutional Court entirely dedicated to this responsibility." Among other enabling provisions, section 2 of the Constitution, the so-called supremacy clause, holds explicitly that, "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled." Thus, in the post-apartheid period, each of the categories of judicial review identified by Innes were augmented. Most significantly, review of administrative action proceeds with statutory codification under the Promotion of Administrative Justice Act, 2000 (PAJA) and with support in the Constitution, and it is complemented by new constitutional grounds for the judicial review of executive and legislative action. Courts also retain certain special powers of review under certain statutes, including the power to review proceedings in and decisions of inferior courts.
Review under the Constitution
Under the post-apartheid constitutional dispensation, common-law review of administrative action has been subsumed under the newly expanded framework of constitutional review of exercises of public power. In Pharmaceutical Manufacturers Association: In re Ex Parte President, a landmark judgment handed down in 2000 which defined the post-apartheid landscape in South African administrative law, Justice President Arthur Chaskalson held that, under constitutional supremacy, "all law, including the common law, derives its force from the Constitution and is subject to constitutional control".Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others (CCT31/99) . Or, as Justice Kate O'Regan put it four years later in Bato Star Fishing v Minister, constitutional principles had become "the grundnorm" of administrative law.Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) .
In cases where a statute prescribes particular standards for reviewing particular categories of action , the courts will often prefer to apply that statute. However, courts have also developed non-statutory grounds of review which may be applied to exercises of public power that are not reviewable under any particular statute. In this framework, the judicial review of administrative action is grounded in constitutional law and proceeds according to principles that apply broadly to exercises of public power regardless of whether they are defined strictly as instances of administrative action.
Grounds of review
Principle of legality
In respect of the exercise of public powers, the Constitutional Court has developed its power of review primarily through its doctrine on the principle of legality, which it takes to be an "incident" of the rule of law, one of the Constitution's founding values. Contemporary legality review originated in Fedsure Life Assurance v Greater Johannesburg, in which the Constitutional Court explained that, under the new constitutional dispensation, the common law principles of ultra vires "are underpinned (and supplemented where necessary) by a constitutional principle of legality". This principle entails that a public agent:may only act within the powers lawfully conferred upon it. There is nothing startling in this proposition – it is a fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful. The rule of law – to the extent at least that it expresses this principle of legality – is generally understood to be a fundamental principle of constitutional law... It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. At least in this sense, then, the principle of legality is implied within the terms of the interim Constitution.Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others (CCT7/98) .Although Fedsure was decided in 1998 under the Interim Constitution, the principle of legality was reaffirmed and further entrenched after the enactment of the Constitution of 1996, section 1(c) of which explicitly identified the rule of law as a founding constitutional value. In subsequent jurisprudence, the Constitutional Court affirmed several grounds of review arising from the legality principle, beyond the narrow ultra vires requirement not to exceed one's lawful powers. In President v SARFU, the Constitutional Court held per curiam that legality requires that public agents act in good faith and not misconstrue their powers, while Pharmaceutical Manufacturers formalised the requirement to act rationally rather than arbitrarily as a "minimum threshold requirement applicable to the exercise of all public power". In Simelane, the Constitutional Court additionally held that "procedural rationality" is a ground of legality review, subsidiary to rationality review;Democratic Alliance v President of South Africa and Others (CCT122/11) . although similar to PAJA's requirement of procedural fairness, procedural rationality is distinct and applies to all exercises of public power.
Bill of Rights Section 8(1) of the Constitution provides that, "The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state." Thus, in some other cases, constitutional judicial review does not rely explicitly on the principle of legality but instead relies directly on the court's interpretation of a constitutional right protected by Chapter Two of the Constitution of South Africa. Under section 36 of the Constitution, when the exercise of a public power limits such a right, courts often conduct a so-called limitations exercise to determine whether the limitation of the right is proportionate and justifiable in the circumstances. Before the enactment of PAJA, the right to just administrative action was a notable example of a constitutional right which the court preferred to interpret and apply directly, in that case in reviewing administrative action .
In the case of the socioeconomic rights protected by sections 26 and 27 of the Constitution, the Constitutional Court has emphasised the constitutional provisions directing the state to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation" of these rights. In this vein, it has developed a primarily procedural standard of reasonableness to test whether laws, policies, and state actions fulfil this obligation to a constitutionally compliant extent; Government v Grootboom (on the right to housing),Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) . Minister of Health v Treatment Action Campaign (on the right of access to healthcare services),Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02) . and Mazibuko v City of Johannesburg (on the right of access to water)Mazibuko and Others v City of Johannesburg and Others (CCT39/09) . were landmark cases in that regard.
Scope
Administrative action