THE EXTENT AND SCOPE OF PROCEDURAL FAIRNESS UNDER LEGALITY REVIEW BY LEHUMO SEJAPHALA Dissertation submitted in partial fulfilment of the requirements for the Degree of Master of Laws at the University of the Free State SUPERVISOR: PROFESSOR DANIE BRAND Page | i Declaration I, Lehumo Sejaphala, declare that the dissertation that I herewith submit for the Master of Laws at the University of the Free State, is my independent work, and that I have not previously submitted it for a qualification at another institution of higher education. 28 November 2023 Student’s signature Date Page | ii Acknowledgements There is a “moria” of people who contributed immensely to the successful completion of this academic project. First, I would to extent my special appreciation to the God of Mount Zion for being my spiritual anchor and refuge throughout this daunting journey. My remarks of appreciation are further extended to my supervisor, Professor Danie Brand who guided me throughout this nearly 2 years journey and allowed me to stand on his shoulders and see things that would not have seen but for his research expertise and extensive knowledge in the field of administrative law. I am also immensely grateful for the constructive feedback received from the three critical reviewers: Professor Radley Henrico, Ms Andri du Plessis, and Ms Gabrielle Burns at the beginning of this dissertation. To Ms Naomi Haupt, Lizelle Petersen and Mpho Lekoekoe, thank you so much for your administrative support. To my good friend, Melton Muremi thank so much for creating the navigation pane on this dissertation on my behalf. I would also like to thank my parents, Maria Maphogane Sejaphala and Thomas Samuel Sejaphala for raising me from nothing and their continued emphasises on the importance of education despite not having formal education. Last but not least, I am grateful to the Department of Higher Education for the generous scholarship provided to me to undertake this research project. This would not have been possible without the funds to pay for my accommodation, registration and tuition fees. “And the stone that the builders refused in the morning has become the cornerstone”(1 Peter 2: 7). Page | iii Abstract The prevailing view in administrative law scholarship concerning the relationship between the Promotion of Administrative Justice Act (hereafter ‘PAJA’)1 and the principle of legality over the last decade has been that these two mechanisms for review of public conduct should not be used interchangeably and that instead, they should be applied separately, within each of their scopes of application. In other words, the prevailing view maintains that PAJA and its grounds of review must be exhausted first before resort can be had to the principle of legality – which serves as a safety net to catch all exercises of public power which fall outside the purview of PAJA.2 Indeed, this is not just the prevailing view but a constitutional injunction occasioned by amongst others, the principle of subsidiarity which serves to give impetus to the doctrine of the separation of powers.3 This notwithstanding, a thorough reading of administrative law cases since the enactment of PAJA shows that the courts have not maintained this constitutionally ordained PAJA and legality review distinction consistently. There are indeed cases in which our courts have imported procedural fairness (a separate ground of review under PAJA) into the legality review. However, it is still not clear as to when and under what circumstances a reviewing court will subject public conduct (not administrative in nature, and therefore not subject to PAJA), to procedural fairness as seemingly subsumed into the principle of legality. Against this backdrop, I ask in this dissertation what the unintended consequences of this prevailing approach have been. Second to that, I ask whether the prevailing view has not resulted in the development/broadening of legality as a ground for the review of ‘non-administrative’ public conduct. And most significantly, whether our courts have managed to develop a cogent substantive approach to the question of whether or not in a given case of legality review, procedural fairness should apply. 1 Act 3 of 2000. 2 Boonzaier 2018: 655; State Information Technology Agency Soc Ltd v Giima Holdings 2017 (2) SA 63 (SCA): par. 37. 3 South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC): par. 52; Minister of Defence and Military Veterans v Motau 2014 (5). SA 69 (CC): par. 27 at footnote 28. Page | iv Table of Contents Declaration ................................................................................................................. i Acknowledgements .................................................................................................. ii Abstract .................................................................................................................... iii CHAPTER 1 ............................................................................................................... 7 1.1 Introduction ................................................................................................................ 7 1.2 Assumptions .............................................................................................................. 8 1.3 Research questions ................................................................................................. 8 1.4 Title and aim of the dissertation ............................................................................. 9 1.5 Methodology and approach .................................................................................. 15 1.6 Chapter outline ........................................................................................................ 15 CHAPTER 2 ............................................................................................................. 18 2.1 Introduction .............................................................................................................. 18 2.2 The prevailing approach to the relationship between PAJA and the principle of legality and its rationale ................................................................................................ 18 2.2.1 Judicial review of exercises of public power at common law .......................... 21 2.3 Judicial review of exercises of public power under the Constitution .............. 23 2.4 The history of the development of the principle of legality and the criticisms 25 2.5 The difference between judicial review under PAJA and the principle of legality ................................................................................................................................. 34 2.6 Conclusion ............................................................................................................... 38 CHAPTER 3 ............................................................................................................. 40 3.1 Introduction .............................................................................................................. 40 3.2 Procedural fairness and its genesis in administrative law ............................... 41 3.3 Cases in which procedural fairness was imported into the principle of legality 42 3.4 Cases in which the courts refused to import procedural fairness into the principle of legality ............................................................................................................. 48 3.5 Contrasting procedural fairness in the case of Masetlha and Speaker of the National Assembly v Public Protector ............................................................................ 52 3.6 Possible reasons for the importation of procedural fairness into legality review .................................................................................................................................. 57 3.7 Conclusion ............................................................................................................... 63 Page | v CHAPTER 4 ............................................................................................................. 65 4.1 Introduction .............................................................................................................. 65 4.2 What does deference entail and how have some administrative law scholars proposed it should be understood? ................................................................................ 67 4.3 Defining deference ................................................................................................. 68 4.4 Deference on questions of law, merits or facts – the narrow or broad approach to deference? .................................................................................................... 69 4.5 How have South African administrative law scholars conceptualised judicial deference – the narrow or broad approach? ................................................................. 70 4.6 How far have South African courts come in trying to formulate a substantive and cogent theory of judicial deference? ....................................................................... 74 4.7 What, if any are some of the weaknesses in the courts’ attempt to formulate a theory of deference and general themes which can inform such a theory? ......... 78 4.7.1 An integrated function for judicial review .............................................. 79 4.7.2 Constitutional context ........................................................................... 80 4.7.3 Respect for administrative determinations of the law or cogency of reasoning ........................................................................................................... 80 4.7.4 Deference as a free­standing principle or informing principle or both. .. 80 4.7.5 Deference and the separation of powers .............................................. 82 4.8 The Canadian approach to deference: the broad approach or narrow approach to deference? .................................................................................................... 86 4.8.1 The twilight of judicial deference: 1949 – 1979. .................................... 87 4.8.2 The New Approach: 1979-1998 ............................................................ 88 4.8.3 Interventionism prevails on jurisdictional questions and questions of law: 1998-2008 ......................................................................................................... 92 4.8.4 The battle for reasonableness: 2008-present ....................................... 94 4.9 The Finnish approach to judicial deference: The broad or narrow approach? 97 4.9.1 The Finnish elements of deference which can be imported into South Africa 98 4.10 The Australian approach to deference: The narrow or broad approach? ... 101 4.10.1 Judicial review of administrative action in Australia ............................ 101 4.10.2 Judicial review of administrative actions under the Commonwealth Constitution ...................................................................................................... 102 4.10.3 Judicial review of administrative action under the AD(JR) Act ............ 103 4.10.4 Judicial review of administrative action through the Judiciary Act ...... 106 4.10.5 Judicial review of exercises of public power under the principle of legality.. ........................................................................................................... 106 Page | vi 4.10.6 Judicial review of administrative law under the principle of jurisdictional error….. ........................................................................................................... 107 4.11 The Australian approach to deference the broad approach: The broad or narrow approach? ............................................................................................................ 108 4.12 Conclusion ............................................................................................................. 112 Chapter 5 ............................................................................................................... 115 5.1. Conclusion ................................................................................................................ 115 5.2. Recommendations ................................................................................................... 118 BIBLIOGRAPHY .................................................................................................... 119 LEGISLATION & THE CONSTITUTION ...................................................................... 119 CASE LAW ....................................................................................................................... 119 BOOKS & JOURNAL ARTICLES ................................................................................. 123 Page | 7 CHAPTER 1 1.1 Introduction It is trite law that the exercise of all public power in our constitutional order is not unfettered. There are constraints that are placed to ensure that public functionaries are not only prevented from abusing their powers but are accountable for the in which they exercise those powers. As the High Court of Australia explained in Corporation of the City of Enfield v Development Assessment Commission (‘Enfield’),4 accountability refers “to the need for the executive government and administrative bodies to comply with the law and, in particular, to observe relevant limitations on the exercise of their powers”.5 This is also the essence of the Rule of Law which ensures that “those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers”.6 To ensure this accountability, sec. 1 of the South African Constitution establishes the Constitution as the supreme law of the country and gives impetus to the principle of legality whereas sec. 33 calls into existence the enactment of a national legislation to give effect to the right to justice administrative action. Suffice to say that both the Constitution and PAJA imposes constraints on all exercises of public power to prevent the abuse of power by state functionaries that characterised the apartheid era. It follows from this that the Constitution, especially the principle of legality which is implied in it and PAJA have a symbiotic relationship. To be more precise, the principle of legality is generally understand as a safety-net to catch all exercises of public power that are not administrative in nature7 whereas PAJA can be relied upon to review all exercises of public that are administrative in nature as occasioned by sec. 33 of the Constitution. This is also the prevailing view in administrative law scholarship regarding the relationship between these two mechanisms of judicial review. While this position may be legally sound and constitutionally compliant, a closer reading of case laws since the enactment of PAJA in 20008 reveals that the prevailing has 4 [2000] HCA 5; 199 CLR 135. 5 Enfield: par. 55. 6 Clough v Leahy (1904) 2 CLR 139: 155-156. 7 Boonzaier 2018: 655; State Information Technology Agency Soc Ltd v Giima Holdings 2017 (2) SA 63 (SCA): par. 37. 8 The President brought PAJA, save for ss 4 and 10, into force on 30 November 2000 in terms of Government Notice R73 dated 29 November 2000. Page | 8 resulted in unintended consequences. That is to say, the prevailing view can be argued to have led to broadening and development of the principle of legality as a pathway of review to the detriment of PAJA. This has been by the introduction of notions of procedural fairness under some circumstances as part of legality. It seems the courts have done this as a way of bringing all execises of public power under some degree of public law control. Alas, this approach to judicial review has not be consistently followed – there are cases, as shall be seen in chapter 3, in which the courts have imported procedural fairness into legality review and cases in which they refused to do so. This is owing in part, as shall be argued in chapter 4, to the courts’ general failure to develop a substantive and principled, rather than a ‘technicalist’ or formal approach to determining whether public conduct that is not administrative action and is therefore subject only to legality review, may be reviewed on the basis of procedural fairness requirements. 1.2 Assumptions The dissertation proceeds from a number of assumptions. The first one is that there is a prevailing scholarly view of the preferred relationship between PAJA and the principle of legality, and it requires that the two mechanisms for review not be used interchangeably, but separately, within distinguished spheres of application. The second assumption is that this prevailing view is cogent, but has resulted in the development and broadening of the principle of legality as a channel for review, particularly through the introduction of some notions of procedural fairness into the concept of legality. The third assumption is that our courts have not managed to develop a principled, substantive approach to determining in a given case of legality review, whether procedural fairness should apply or not. 1.3 Research questions There are also a number of questions that this dissertation will attempt to grapple with. The first one is the question of what the prevailing approach to the relationship between PAJA and the principle of legality is, and what is its rationale? Having grappled with this question, this dissertation will proceed to deal with the question of whether the application of the prevailing approach caused the development and broadening of legality as a channel fairness review, and if so, how and to what extent? Page | 9 Lastly, the dissertation will attempt to answer the following question of our courts managed to develop a principled, and substantive approach to determining in a given case of legality review, whether procedural fairness should apply and if it does, in what form and to what extent it should apply? 1.4 Title and aim of the dissertation This dissertation is title “The extent and scope of procedural fairness under legality review”. The rationale behind this dissertation is first, to closely assess the extent and scope of procedural fairness review under the principle of legality and ask whether our courts have managed to develop a substantive approach to determining in a given case of legality review, whether procedural fairness should apply and if it does, in what form and to what extent. This is an important question to ask primarily because the expansion of legality review to include procedural fairness (which is a separate ground of review under PAJA) has the potential to not only blur the line between administrative action and executive action reviews, but also erode PAJA as a constitutionally mandated pathway for the review for administrative action. In practice, this would mean that where reviewing courts previously required decision-makers to only show that their exercise of public power was lawful, rational, and exercised in good faith for compliance with the principle of legality;9 they would now have to show that their decisions are also procedurally fair. The consequences of this would be dire for the prompt, and effective policy formulation and public administration by the executive. This is so because requiring the executive to comply with the requirements of procedural requirements in every decision taken would only serve to undermine the very basic tenets of representative democracy. Unlike other state functionaries, the executive in our constitutional dispensation is primarily concerned with policy formulation – a process which involves thorough public consutations and hearings. Accordingly, to require executive actions to comply with the strict requirements of procedural fairness which include the right to be heard before a decision can be taken amongst others, would amount to requiring procedural fairness twice – that is at the stage of policy formulation and the stage of policy implementation. This is an undesirable outcome which the framers of the Constitution would not have envisinged. 9 Pharmaceutical Manufacturers of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others(‘Pharmaceutical Manufacturers’) (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000): par. 50. Page | 10 Moreover, importing procedural fairness into the legality review will also serve to undermine the principle of the separation of powers, subsidiarity, and result in the academically bemoaned “PAJA avoidance”.10 Ultimately, this will also displace PAJA in its rightful place in our constitutional democracy – which is to give effect to the right to just administrative action as enshrined in sec. 33 of the Constitution.11 The above notwithstanding, it may well be argued that we are already on that trajectory. Legal databases are replete with cases in which the courts have not only bypassed PAJA in reviewing administrative actions but mentioned it as an afterthought. And although subsidiarity demands that PAJA and legality be kept separate, in practice the courts and practitioners keep using these two pathways of review interchangeably if not in the alternative. By way of example, in N Gagayi v Ingquza Hill Local Municipality and Two Others,12 Mbenenge AJ held that a litigant who approaches a court for review invariably has a choice: they could base their review either on PAJA or legality. Despite this, the learned acting judge went on to review the decision in question in terms of legality and granted the relief sought even though the applicant had not exhausted PAJA’s internal remedies. A similar approach was followed by the Supreme Court of Appeal (SCA) in the case of Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others (‘Democratic Alliance v Acting National Director of Public Prosecutions’).13 This was an appeal from the North Gauteng High Court by the Democratic Alliance (DA) in which it sought by way of an application, an order reviewing, correcting, and setting aside the decision of then Acting National Director of Public Prosecution, Mr. Mpshe to discontinue the prosecution of former President Zuma. The SCA was called upon to decide amongst other issues whether a decision to discontinue a prosecution constituted administrative action in terms of PAJA,14 and if not, whether the decision could be reviewed under the rule of law in terms of sec. 1 (c) of the Constitution.15 Without going into a thorough discussion about whether PAJA applied in the case, the 10 Hoexter 2017: https://adminlawblog.org/2017/04/28/cora-hoexter-south-african-administrative-law- at-a-crossroads-the-paja-and-the-principle-of-legality/?msclkid=f9cbec4ca2a311ec8bf374433d862dd4 (accessed 7 August 2022). 11 The Constitution of the Republic of South Africa, 1996 (‘the Constitution’). 12 (unreported case no 1251/12, 22-6-2012). 13 2012 (3) SA 486 (SCA). 14 Democratic Alliance v Acting National Director of Public Prosecutions: par. 10. 15 Effectively, the DA was reviewing the decision on the ground of legality. See Democratic Alliance v Acting National Director of Public Prosecutions: paras. 15-16. Page | 11 SCA accepted the DA’s contention that while the decision to discontinue prosecution is excluded from the definition of “administrative action” in terms of sec. 1(ff) of PAJA, it is nevertheless subject to the rule of law.16 Moreover, in a clear departure from the well-established principle of subsidiarity, the Court went on to cite with approval its earlier decision in the case of Democratic Alliance v President of the Republic of South Africa and Others17 in which it held that the exercise of public power, even if it does not constitute administrative action, must comply with the Constitution.18 It is apposite to mention at this point that this was not a new and isolated case. The tendency of the courts to bypass PAJA and seek sanctuary in the principle of legality despite cogent and substantive reasons against it dates as far back as 1997 and the early 2000s. The case of Premier, Eastern Cape v Cekeshe and Others (‘Cekeshe’)19 is one such example. In this case, the Premier of the Eastern Cape had issued Proclamation 10 of 1997 in terms of s. 13 of the Corporations Act 10 of 1985 which effectively dissolved the Transkei Agricultural Corporation (Tracor). Section 13(3) of this Act required the Premier to submit the proclamation to the provincial legislature within 30 days but this was not done leading the employees of Tracor to approach a Provincial Division for an order, setting aside Proc 10 on the grounds, inter alia, that the decision taken to dissolve Tracor was procedurally unfair and that the closure of Tracor was an unfair labour practice. The order was granted and the Premier aggrieved by the decision appealed to a full bench of the Provincial Division, contending amongst other things that the proclamation (i) was original legislation and as such not subject to review; (ii) did not constitute administrative action and therefore did not have to comply with the provisions of sec. 33 of the Constitution. Here again without venturing into a discussion about whether the exercise of the power in question amounted to administrative action or not, the Court per Lock J rejected the Premier’s argument and reasoned that Parliament could never be taken to intend to give an official or an administrative body the power to act in bad faith or the power to abuse his, her or its powers,20 thus reviewing the exercise of public power in question in terms of legality instead of PAJA or at least without giving substantive reasons why 16 Democratic Alliance v Acting National Director of Public Prosecutions: par. 27. 17 2012 (1) SA 417 (SCA). 18 Democratic Alliance v Acting National Director of Public Prosecutions par. 27. 19 1999 (3) SA 56 (TK). 20 Cekeshe: 72B – C (emphasis added). Page | 12 PAJA did not apply. Even more concerning was the Court’s separate judgment by Madlanga J (Somyalo JP concurring) who further held that it would be a retrograde step in the development of our administrative law to insist that before reliance could be placed on sec. 33 of the Constitution, there had to be a finding that the action in issue was administrative.21 According to the learned judge, it was/is necessary for the courts to move away from labels and focus primarily on substance rather than form.22 Another early case to follow the same approach was the case of Mafongosi v United Democratic Movement (‘Mafongosi’).23 The applicants in this matter were members of the United Democratic Movement whose membership was terminated by their party on the ground of misconduct. Aggrieved by this decision, the applicants brought an application before the High Court seeking the review and setting aside of the said decision on three grounds namely: (1) that they were not given proper notice requiring them to appear before a disciplinary inquiry and setting out the nature of the charges preferred against them. In other words, the applicants argued that were not informed of the right to appeal against the decision or the right to request reasons for the decision. (2) They further argued that they were not given a hearing before the termination of their membership and therefore their constitutional right to lawful, reasonable, and procedurally fair administrative action was violated. (3) The applicants also contended that the disciplinary procedures prescribed in the first respondent's constitution were breached in material respects. Here again, without venturing into a discussion about whether or not the decision in question was administrative action per sec. 1 of PAJA, the Court per Jafta AJP proceeded by stating that it was unnecessary to express any opinion on whether the provisions of sec. 3 of the PAJA apply to the present case.24 According to Jafta AJP, “the matter can be disposed of sufficiently by having recourse to the provisions of sec. 33 of the Constitution which gives certain rights to the applicants. These rights include the right to a lawful, reasonable, and procedurally fair decision”.25 21 Cekeshe: 107G - G/H. 22Cekeshe: 108A/B - B/C. 23 2002 (5) SA 567 (Tk). 24 Mafongosi: par. 12. 25 Mafongosi: par. 19. Page | 13 More recently in the case of Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and Others (‘Eskom Holdings SOC Limited’),26 a full bench of the High Court strangely reviewed a seemingly administrative action in terms of sec. 1 of the Constitution. This case concerned an application by Eskom – South Africa’s monopoly energy supplier, to review and set aside its unlawful decisions that resulted in payments which were in excess of R1,7 billion to McKinsey and Company Africa (Pty) Ltd, Trillian Management Consulting (Pty) Ltd and Trillian Capital Partners (Pty) Ltd.27 The impugned decisions related to two contracts concluded with McKinsey and Company Africa (Pty) Ltd, in 2015 and 2016 respectively. From then, the first one endured for a period of three months (2015) while the other known as the Master Services Agreement (MSA) (2016) was between Eskom and McKinsey and was terminated by agreement.28 Despite the applicability of the Public Finance Management Act 1 of 1999 (PFMA), particularly sec. 51 (1) (a) (ii) (which empowers the Eskom board, as an accounting authority, to maintain an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost- effective), thereby making Eskom’s decisions reviewable under PAJA, the Court opted instead to source its judicial review powers directly from the Constitution.29 In the Court’s precise words: In this application Eskom seeks to review and set aside the two agreements as well as the resultant payments in terms of s1(c) of the Constitution. That this is not a review in terms of the Promotion of Administration of Justice Act 3 of 2000 (PAJA) is clear. The application need not therefore be instituted within a period of 180 days from the date the decision was made. The application is founded on the principle of legality in terms of s1 of the Constitution. It need only be instituted within a reasonable time.30 As I will argue in chapter 2, perhaps the circumstances of the case, the public interest and interest of justice demanded that the Court overlooks the strict 180 days PAJA requirement for the institution of review proceedings.31 Be that as it may, the point about PAJA avoidance is still not lost. Even more concerning, the decision of the court in this case seems to be disapproved by the Constitutional Court’s recent case of Minister of Finance v Afribusiness NPC (‘Afribusiness’),32 where the Court cited its 26 (22877/2018) [2019] ZAGPPHC 185 (18 June 2019). 27 Eskom Holdings SOC Limited: par. 2. 28 Eskom Holdings SOC Limited: par. 3. 29 Eskom Holdings SOC Limited: par. 4. 30 Eskom Holdings SOC Limited: par. 4. 31 See sec. 7 (1) of PAJA. 32 (CCT 279/20) [2022] ZACC 4; 2022 (4) SA 362 (CC); 2022 (9) BCLR 1108 (CC) (16 February 2022): par. 78. Page | 14 earlier decision in Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency (‘Allpay’),33 and held that: The requirements of a constitutionally fair, equitable, transparent, competitive and cost- effective procurement system will thus inform, enrich and give particular content to the applicable grounds of review under PAJA in a given case. The facts of each case will determine what any shortfall in the requirements of the procurement system – unfairness, inequity, lack of transparency, lack of competitiveness or cost inefficiency – may lead to: procedural unfairness, irrationality, unreasonableness or any other review ground under PAJA.34 Most significantly, according to the Court: Section 217 of the Constitution, the Procurement Act and the Public Finance Management Act provide the constitutional and legislative framework within which administrative action may be taken in the procurement process. The lens for judicial review of these actions, as with other administrative action, is found in PAJA. The central focus of this enquiry is not whether the decision was correct, but whether the process is reviewable on the grounds set out in PAJA. There is no magic in the procurement process that requires a different approach. Alleged irregularities may differ from case to case, but they will still be assessed under the same grounds of review in PAJA. If a court finds that there are valid grounds for review, it is obliged to enter into an enquiry with a view to formulating a just and equitable remedy. That enquiry must entail weighing all relevant factors, after the objective grounds for review have been established.35 Against this backdrop, the High Court decision in Eskom Holdings SOC Limited also seems to give further credence to what Henrico has called the subversion of PAJA for “judicial expedience”.36 It is a textbook example of what Hoexter has called “PAJA avoidance”.37 Moreover, as argued elsewhere above, the unintended consequences of following this approach have been to denude PAJA as constitutionally mandated legislation as well as to broaden the principle of legality as a pathway of review – which now seems to subsume most of the grounds of review under PAJA. This is indeed not a surprising development: legality has proven to be “simple, general and flexible and can evidently be made to mean whatever the court wants it to mean” whereas “PAJA is far more detailed and less user-friendly”.38 This situation is compounded by the Act’s definition of “administrative action” which is overly complicated and tries to exclude too much; and “sec. 7 which contains procedural obstacles in the form of a strict six-month time limit for applications for review and a rather onerous duty to exhaust internal remedies”.39 It remains to be seen whether PAJA will survive these developments and 33 [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC). 34 Allpay: par. 43. 35 Allpay: par. 43-45. 36 Henrico 2018: 289. 37 More on this below. 38 Hoexter 2015: 184. 39 Hoexter 2015: 184. Page | 15 what the extent and scope of procedural fairness review under legality will be. I aim to explore all these questions in this dissertation and to add a voice to the long-standing debate about whether it is appropriate for the courts to review exercises of public power in terms of legality before determining if PAJA applies. It is hoped that this dissertation will not only enrich this debate but also contributes to the broader discussion of trying to locate the proper and rightful place of both PAJA and the principle of legality in our constitutional dispensation and judicial review proceedings. That is to say, whether our courts have managed to develop a principled, and substantive approach to determining in a given case of legality review, whether procedural fairness should apply. 1.5 Methodology and approach This dissertation comprises the results of qualitative desktop research. I rely primarily on both South African and foreign law reports, journal articles, academic books, legislation, LLM dissertations, and Ph.D. thesis of scholars in the field of administrative law. Where relevant, reference is also made to newspaper articles and political statements. 1.6 Chapter outline Apart from an introduction and conclusion (chapters 1 and 5 respectively), this dissertation consists of three substantive chapters. In chapter 2, I describe the prevailing view on the relationship between PAJA and legality and the rationale for it. After introducing the prevailing view, I then move on to briefly set out the history of judicial review for exercises of public power at common law and under the Constitution. I further attempt to map out the development of the principle of legality and highlight the distinction between judicial review under PAJA and the principle of legality. This is done as a way of demonstrating the critical role that the principle of legality has played in the judicial review of exercises of public before the enactment PAJA and how the courts continued to employ it in the post-PAJA enactment era. It is this continued overreliance on the principle of legality to review almost all exercises of public power that now threatens to displace PAJA from its legimate position in our constitutional order. Chapter 2 also considers what exactly necessitated the court’s reliance on the principle of legality and its continuous development thereof. Page | 16 In chapter 3, I ask the question of whether the application of the prevailing approach has not inadvertently caused the development and broadening of legality as a channel for review, in particular concerning the ‘reading in’ of procedural fairness in some instances. In other words, by insisting that there should be strict adherence to subsidiarity, has the prevailing approach not inadvertently presented PAJA and legality as mutually exclusive and polar opposites that our courts have not been able to reconcile? And as a result, opting instead to seek sanctuary in the generous and flexible principle of legality, which is then developed unduly? In chapter 4, I ask whether our courts have managed to develop a principled, and substantive approach to determining in a given case of legality review, whether PAJA or legality should apply. I begin this chapter with a discussion of what deference entails in the judicial review for exercises of public power and how administrative law scholars both in South Africa and other foreign jurisdictions like Canada and Australia have conceptualised it. This is an important question to ask because as I will show, the question of whether an exercise of public power in a given case should be subjected to PAJA or legality review depends very much on the kind of deference theory or approach the review court relies upon. After laying this foundation, I then move on to ask the question of whether our courts have managed to develop a cogent theory of deference that does not border on technicalities to determine in a given case of legality review, whether procedural fairness will apply and therefore whether to intervene or exercise some form of deference. A corollary question to this that is also considered is whether it is possible, in the current judicial review dispensation, for litigants and legal practitioners to know in advance which ground of review a reviewing court will rely upon in reviewing an exercise of public so they can draft their pleadings accordingly. In other words, are there any substantive factors which a reviewing court can be hoped to rely upon in determining whether to intervene and review an exercise of public power, especially those that are executive in nature. Page | 17 Page | 18 CHAPTER 2 What is the prevailing approach to the relationship between PAJA and the principle of legality and what is its rationale? 2.1 Introduction In this chapter I describe the prevailing view on the relationship between PAJA and legality and the rationale for it. After briefly introducing the prevailing view and its rationale, I then move on to set out the history of judicial review of exercises of public power at the common law, and under the Constitution. This is then followed by a discussion of the distinction between judicial review under PAJA and the principle of legality to give further impetus to the prevailing approach. Finally, I attempt to map out the history of the development of the principle of legality as a pathway of review with consideration of the criticisms that have been levelled against it, particularly by scholars who propounded the prevailing approach. I do this to interrogate whether this strict insistence that the prevailing approach should be followed to the letter has not inadvertently resulted in the undue development/broadening of the principle of legality since the courts seem to be struggling to develop a principled, substantive approach to determining in a given case, whether the PAJA or legality should apply. I start in 2.2 below by describing the prevailing approach to the relationship between PAJA and the principle of legality. I then proceed with a discussion of judicial review of exercises of public power at common law and under the Constitution in 2.3 and 2.4 respectively. This is followed by a discussion of the history of the development of the principle of legality in 2.5 and a discussion of the difference between judicial review under legality and PAJA in 2.6. Finally, I provide a summary of the discussion in the whole chapter in 2.7. 2.2 The prevailing approach to the relationship between PAJA and the principle of legality and its rationale One of the most contentious issues in administrative law scholarship since the enactment of PAJA40 has been the question of whether it is appropriate for a court in 40 The President brought PAJA, save for ss 4 and 10, into force on 30 November 2000 in terms of Government Notice R73 dated 29 November 2000. Page | 19 a judicial review application to apply the principle of legality before determining if PAJA applies or exhausting its grounds of review. The prevailing view on this subject so far is that in reviewing exercises of public power, the courts must first determine if PAJA applies before placing reliance on the principle of legality.41 Many administrative law scholars have since taken issue with the courts’ continued reliance on the principle of legality to review exercises of public power before determining if PAJA applies. To be more precise, the Constitutional Court has been criticised as “strangely tolerant of applications based on the principle of legality instead of the PAJA, and has quite often permitted them even when it has not yet been established that the PAJA is inapplicable because the action is not administrative”.42 The case of Albutt v Centre for the Study of Violence and Reconciliation (‘Albutt’)43 has also been identified as the hallmark of the reversal in the “normal order of things”.44 This is so, the argument continues, because it was in that case that the apex Court held that since the case could be resolved by the principle of legality, there was no need to ask whether PAJA was applicable. Indeed, the Court held in that case that the question of whether PAJA or legality applied was an “ancillary question that should not be reached, as it would be contrary to judicial policy to do”.45 This practice by the Court of exercising its judicial review powers has also been characterised as a “blatant avoidance of the constitutionally mandated PAJA”46 subversion of sec. 33 of the Constitution”47 and “administrative law by another name”48 among other labels. Even more devastating, the Constitutional Court has been criticised for creating “a parallel universe of administrative law; a new common law for the constitutional era”.49 Commenting on this subject in 2012, Hoexter authoritatively proposed that: 41 See generally Hoexter 2012; Henrico 2018, and Kohn 2013 for further discussion on this. 42 Hoexter 2015: 183; Hoexter 2012: 134-35. 43 (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC) (23 February 2010). 44 Hoexter 2015: 183. 45 Albutt: par. 82. 46 Hoexter 2017: https://adminlawblog.org/2017/04/28/cora-hoexter-south-african-administrative-law- at-a-crossroads-the-paja-and-the-principle-of-legality/?msclkid=f9cbec4ca2a311ec8bf374433d862dd4 (accessed 7 August 2022). 47 Hoexter 2011: 65 argues that: “reliance on the principle of legality subverts s 33 of the Constitution. The use of the principle of legality so as to avoid the administrative action inquiry detracts from the entire scheme laid down in s 33, whose purpose is to establish a coherent and overarching system for the review of all administrative action”. 48 Plasket 2002: 164. 49 Hoexter 2015: 184. Page | 20 The first question in any administrative-law case ought surely to be whether the most specific and most detailed norm, the PAJA, is applicable, and not whether the problem is capable of being solved by the rule of law, a far more general and abstract constitutional doctrine.50 The main argument in support of this position is that, in reviewing exercises of public power, courts should have regard or give due consideration to the principle of subsidiarity. This principle was succinctly explained by the Constitutional Court per Cameron J in My Vote Counts NPC v Speaker of the National Assembly and Others (‘My Vote Counts’)51 as denoting: “a hierarchical ordering of institutions, of norms, of principles, or of remedies, and signifies that the central institution, or higher norm, should be invoked only where the more local institution, or concrete norm, or detailed principle or remedy, does not avail”.52 One important aspect of this principle is that “where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard”.53 While the Constitutional Court in My Vote Counts recognised that virtually all issues are, ultimately, constitutional, it cautioned against a “freewheeling or haphazard” resort to constitutional values and rights when more specific rights enshrined in legislation can provide the necessary relief.54 In the Court’s precise words: “the Constitution is primary, but its influence is mostly indirect. It is perceived through its effects on the legislation and the common law — to which one must look first”.55 The prevailing approach is further anchored on the understanding that the principle of legality serves as a safety-net and governs the review of all exercises of public power that do not constitute “administrative action” under PAJA.56 In other words, the principle of legality regulates executive action, while PAJA regulates administrative action.57 In Fedsure, legality was also characterised as the more general constitutional counterpart of the right to lawful administrative action.58 Accordingly, it has been argued that it is not appropriate for a reviewing court to subject executive actions to 50 Hoexter 2012: 134. 51 2016 (1) SA 132 (CC). 52 My Vote Counts: para 46. 53 South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC): par. 51. 54 My Vote Counts NPC v Speaker of the National Assembly and Others: paras. 51-52. 55 My Vote Counts NPC v Speaker of the National Assembly and Others: par. 52. 56 Boonzaier 2018: 655; State Information Technology Agency Soc Ltd v Giima Holdings 2017 (2) SA 63(SCA): par. 37. 57 Boonzaier 2018: 657. 58 Fedsure par. 56 where the Court held “that the exercise of public power is only legitimate where lawful.” Page | 21 the same exacting constraints that administrative actions would be subjected to under PAJA as that will not accord with the principles of subsidiarity and deference.59 The principle of deference will be properly distilled in chapter 4. For now, it suffices to simply state that in its basic form, deference is concerned with the question of how courts should reconcile law and politics and how they should determine an appropriate standard of review in relation to the facts of each particular case.60 Or to put it another way, “what are the proper boundaries to the respective powers of different branches of government, and who decides on where those boundaries are drawn”.61 It requires that all three branches of government respect the exclusive domains of each other and not be found to be encroaching beyond what is permissible. Writing for the majority of the Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others,62 O’Regan J held that “deference in the review of administrative power springs from the fundamental principle of separation of powers”.63 The main argument on this aspect is that when the court bypasses PAJA to rely on the principle of legality, it ends up encroaching on the exclusive domains of other branches when it should not have intervened in the first place. 2.2.1 Judicial review of exercises of public power at common law Owing to its English influence, South African administrative law under the common law rested on the twin pillars of parliamentary sovereinty the rule of law (the ultra vires doctrine).64 The ultra vires doctrine meant that no public functionary or body could exercise more power than was vested upon it – doing so would result in the exercise of said power being declared unlawful and invalid.65 This power of judicial review was not created by statute but was inherent in the courts by virtue of their legal status. The position was succinctly captured by Innes CJ in Johannesburg Consolidated Investment Co v Johannesburg Town66 who opined that the power of the court to review and set aside the failure of a public body to comply with statutory obligations imposed upon it is: “not a special machinery created by the Legislature; it is an inherent 59 Minister of Defence and Military Veterans v Motau 2014 (5) SA 69 (CC): par. 27. 60 Davis 2006: 33. 61 Davis 2006: 23. 62 [2004] ZACC 15, 2004 (4) SA 490 (CC), 2004 (7) BCLR 687 (CC). 63 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others: par. 46. 64 Kohn & Corder 2014: 1. 65 New Clicks: par. 101. 66 1903 TS 111. Page | 22 power in the court”.67 However, this inherent power of judicial review was not unfettered – Parliament had the ultimate authority to determine what was and was not lawful and this power was sourced from the doctrine of Parliamentary sovereignty.68 In other words, Parliament could limit the level of scrutiny of administrative actions or even ultimately oust the courts' jurisdiction to enquire into the validity of administrative action.69 This left enough room for the abuses of public power as the courts began to adopt an exaggerated deference towards the legislature and the executive.70 Administrative justice especially its requirement of reasonableness was accordingly reluctantly invoked for fear of bluring the lines between review and appeal.71 Moreover, while the courts generally had inherent powers to review all exercises of public power including those administrative in nature,72 this power could only be exercised under limited circumstances. They could do so, for example, where there was gross unreasonableness to the extent that one of the established grounds of review could be inferred from such unreasonableness.73 As Lord Russell CJ explained in Kruse v Johnson,74 a decision could be characterised as unreasonable if the decision-maker who took it was: “found to be partial and unequal in their operation as between different classes”, or “if they were manifestly unjust; disclosed bad faith, involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”75 or if the decision taken was “so unreasonable that no reasonable authority could ever have come to it".76 This stand of reasonableness review has become popularly known as the Wednesbury unreasonableness/doctrine in administrative law scholarship — and it allows for curial intervention only when the impugned administrative measure is “so unreasonable that no reasonable authority could ever have come to it”.77 Needless to mention, this is also the doctrinal bedrock upon which the “hallowed distinction” between “appeal” and “review” is built, thus ensuring that the court does not concern 67 Johannesburg Consolidated Investment Co v Johannesburg Town Council: 155. 68 Hoexter 2013: 645. 69 Klaaren and Penfold: 2006: 2. 70 Hoexter 2004: 177. 71 Hoexter 2004: 177. 72 Hoexter 2013: 645. 73 Mafongosi v United Democratic Movement 2002 (5) SA 567 (Tk): par. 14. 74 [1898] 2 QB. 75 Kruse v Johnson: 91. 76 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 (CA). 77 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 (CA). http://www.saflii.org/cgi-bin/LawCite?cit=%5b1898%5d%202%20QB%2091 Page | 23 itself with the question of whether the decision of the public functionary is right or wrong in judicial review applications.78 The word “hallowed” is used sparingly because in reality, the fine line between review and appeal has been significantly blurred. Moreover, as it shall be seen in chapter 4, the adequacy of judicial oversight thus confined is increasingly questioned both in South Africa and similar common law jurisdictions like Canada and Australia, in part because of the growing emphasis in those jurisdictions on “fundamental rights and values” as entitlements that deserve to be guarded more jealously by courts than bare Wednesbury scrutiny would permit. In South Africa, this same concern seems to have informed the Constitutional Court’s reproachable jurisprudence of importing procedural fairness into legality reviews in some cases. This reading of procedural fairness into legality review has been done despite sec. 6 (2) (h) PAJA which limits the extent and scope of judicial review under reasonableness.79 It also demonstrate the Constitutional Court’s desire and attempt to jettison the extremely deferential Wednesbury unreasonableness standard of review and adopt a substantive approach to judicial review – albeit one that is yet to be properly formulated and fully ventilated. The failure in formulating such an approach is in part due to the failure by the courts to formulate a cogent theory of deference. In other words, whether the courts elect to treat the decisions of other public functionaries with respect or interferes with them will depend very much on its approach to judicial review – do the courts favour “substantive review which embraces legality as well as merits or just the process alone”.80 These two questions seem to be inseparable. 2.3 Judicial review of exercises of public power under the Constitution The advent of South Africa’s constitutional democracy did not only mean a break away from the apartheid culture of exaggerated deference by the courts to the public administration but also meant that Parliament was now divested of the final authority to determine what is and is not a lawful exercise of public power; this authority would 78 Elliot & Wilberg 2015: 3. 79 This section allows a reviewing court to review administrative action ‘where the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function’. 80 See generally Hoexter 2015. Page | 24 now rest in the courts.81 The Constitution now gives the courts greater security to scrutinise administrative actions closely in the knowledge that their powers of review are constitutionally mandated and protected. As the Constitutional Court explained in Pharmaceutical Manufacturers: “the courts no longer have to claim space and push boundaries to find means of controlling public power.”82 That control according to the Court is now “vested in them under the Constitution which defines the role of the courts, their powers in relation to other arms of government, and the constraints subject to which public power has to be exercised”.83 By way of another example, sec. 33 of the Constitution now specifically provides for the right to judicial review of administrative action and mandates Parliament to enact a national legislation that must give effect to this right.84 This national legislation is PAJA which now serves as the vehicle through which administrative law reviews must generally be brought.85 Effectively, this means that: litigants can rely directly on sec. 33(1) of the Constitution when seeking to review administrative action only when they allege that the remedies afforded by PAJA are in some way deficient, in which case their challenge on the basis of sec. 33(1) would not be directed at the administrative action in question, but at the offending provisions of PAJA itself, just as it would be when sec. 33(1) is used to challenge the provisions of any other legislation.86 The role of sec. 33 of the Constitution is therefore residual in nature. In other words, it is “an interpretative standard against which to assess specialised statutory bases for review of administrative action other than sec. 6 of PAJA”.87 As Chaskalson P explained in New Clicks, sec. 33 can only be used as a standard against which to test the constitutional consistency of legislation, including PAJA. The most important sections of PAJA for the purposes of this dissertation are sec. 3 which makes provision 81 Section 165 (1)- (2) of the Constitution provides that the judicial authority of the Republic is vested in the courts. (2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. 82 Pharmaceutical Manufacturers: par. 45. 83 Pharmaceutical Manufacturers: par. 45. 84 This section provides that: ‘(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must—a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.’ 85 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15, 2004 (4) SA 490 (CC), 2004 (7) BCLR 687 (CC) (‘Bato Star Fishing’): par. 25. 86 New Clicks: par. 237. 87 Brand 2007: par. 2.2.1 ( http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/3/5/10/14?f=templates$fn=default.htm accessed 28 Septemeber 2022). Page | 25 for the right to procedural fairness, sec. 4 which provides for circumstances under which public participation may be required before an administrative action is taken and section 6 which provides the grounds for review of administrative actions. 2.4 The history of the development of the principle of legality and the criticisms The principle of legality as it applies in the field of administrative law in South Africa finds its genesis from the first three seminal Constitutional Court cases of Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others (‘Fedsure’),88 President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU)89 and Pharmaceutical Manufacturers of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others(‘Pharmaceutical Manufacturers’)90 respectively. This principle has been held to require that public power be derived from law alone and be exercised in accordance with law;91 and that, additionally, it be exercised rationally and in good faith.92 In Fedsure for example, the Constitutional Court was called upon to determine whether the passing of the resolutions by the Johannesburg municipal council constituted administrative action under sec. 24 of the interim Constitution and sec. 33 of the 1996 Constitution and, if not, whether it has the jurisdiction to determine their validity. Introducing the principle of legality to the question, the Court stated that: The exercise of such powers, like the exercise of the powers of all other organs of state, is subject to constitutional review which, as we describe later, includes review for legality.93 The Court further reasoned that the council was constrained by the principle of legality whose requirement: “exists independently of, and does not depend on, the provisions of section 24 (a)”94 but is nevertheless enshrined in sec. 24 (a) of the interim Constitution.95 This was an important development in our legal jurisprudence given our history of Parliamentary supremacy under apartheid where both the executive and the legislature had wide powers that the courts did not always have the discretion to 88 (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374. 89 (CCT31/99) [2000] ZACC 1. 90 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000). 91 See Fedsure: par. 56 where the Constitutional Court held that the principle of legality expresses the idea that “the exercise of public power is only legitimate where lawful”. 92 See Pharmaceutical Manufacturers case: par. 90 & SARFU: par. 148. 93 Fedsure: par. 40 (emphasis added). 94 Fedsure: par. 41. 95 Fedsure: par. 59. Page | 26 subject to judicial review and scrutiny. More importantly, the Court stated that the principle of legality meant 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.”96 In other words, although the passing of the resolutions in question by the Johannesburg municipal council did not constitute administrative action under sec. 24 of the interim Constitution and sec. 33 of the 1996 Constitution, the exercise of such power was nevertheless not unfettered. That is, it could not be exercised arbitrarily or capriciously. It is clear from this that the principle of legality provided the necessary safeguard and a leg for the Court to stand on when reviewing the council exercise of public power in question. The net result of this ruling has been to bring of all exercises of public power under some degree of public law control – thus ensuring that the constitutional values of accountability, responsiveness, transparency and in some instances, public participation are given effect to. The SARFU case, on the other hand, dealt with the President’s power in terms of sec. 84 (2) (f) of the Constitution to appoint a commission of inquiry to investigate the administration of rugby in South Africa. The Constitutional Court was once again called upon to determine whether the exercise of such public power was executive or administrative in nature. In arriving at its conclusion, the court relied on the wording of sec. 33 of the Constitution and found that the use of the adjective “administrative” instead of “executive” to qualify action suggests that: The test for determining whether conduct constitutes “administrative action” is not the question of whether the action concerned is performed by a member of the executive arm of government. What matters is not so much the functionary as the function.97 The focus of the enquiry as to whether conduct is “administrative action”, the Court further held, ”is not on the arm of government to which the relevant actor belongs, but on the nature of the power he or she is exercising”.98 That being the case, the Court ultimately found that the President’s power in terms of sec. 84 (2) (f) of the Constitution to appoint a commission of inquiry to investigate the administration of rugby did not constitute “administrative action”.99 However, that was not the end of the enquiry because as the Court held, “the fact that the President's conduct, in this case, did not 96 Fedsure: par. 58. 97 SARFU: par. 141. 98 SARFU: par. 141. 99 SARFU: par. 156. Page | 27 constitute administrative action did not mean that there were no constraints upon it”.100 One of the constraints on the President’s exercise of public power according to the Court was found to be the principle of legality which as we have seen means 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”.101 An incisive reading of the Court’s ruling in this matter would reveal the Constitutional Court’s intention to abandon the apartheid concept of the classification of functions under which the review for exercises of public power was grounded upon the identity of the functionary performing the function and not the function itself. This was an important development given the many instances in modern public administrations under which public functions are delegated to private entities. The concept of the classification of functions would indeed make it difficult for the courts to exercise judicial review of said powers but for the development of the principle of legality in the direction that the Constitutional Court took it. In Pharmaceutical Manufacturers, the President acting under the advice of the Minister of Health issued Proclamation R49 which purported to bring into operation the South African Medicines and Medical Devices Regulatory Authority Act, 132 of 1998 (the Act). Having done so, it was later discovered that the Act had been brought into operation without the necessary schedules. The Constitution Court was accordingly called upon to determine whether a court has the power to review and set aside a decision by the President to bring an Act of Parliament into force.102 Relying in part on the authority established in Fedsure, the Constitutional Court held that: “the exercise of all public power must accord with the Constitution, particularly the principle of legality”103 and “that a finding that a decision-maker acted ultra vires is, in essence, a finding that he/she acted in a manner that is inconsistent with the Constitution”.104 These three seminal cases were decided before PAJA came into effect and show the Constitutional Court’s creative attempt to break away from the apartheid culture of lack of accountability and justification for exercises of public power by state functionaries. The Court’s reliance on the principle of legality to review exercises of public power 100 SARFU: par. 148. 101 Fedsure: par. 58. 102 Pharmaceutical Manufacturers: par. 1. 103 Pharmaceutical Manufacturers: par. 20. 104 Pharmaceutical Manufacturers: par. 20. Page | 28 was necessary and justifiable then owing to the absence of a formal legislative framework (in the form of PAJA) to review public conduct particularly those administrative in nature. As Sachs J put it in New Clicks: While the Constitution, like nature, abhors a vacuum, it does have what may appear to be lacunas. One of the tasks of the judiciary is, when called upon, to fill in these apparent gaps. It does so not by a process of invention but by one of completion. The courts use what is there as the foundation for discerning what is not manifest; they render explicit what is implicit. They plumb the overall structure and design of the Constitution and let themselves be guided by the values that the Constitution articulates. Memory of past abuses, sensitivity to social context and appreciation of the goals which the Constitution sets for our society, also serve as pointers.105 It may well be that it [the principle of legality] remains a justifiable alternative pathway to the judicial review of exercises of public power today given PAJA’s narrow definition of “administrative action” which “threatens to exclude from review many exercises of public power which had been reviewable under the common law”.106 This notwithstanding, it is apposite to note at the outset that the Constitutional Court’s creative method of using legality to bring all exercises of public power under some degree of public law control has not been universally welcomed. There are indeed administrative law scholars who have taken issue with the manner in which legality has been used by the Court as a means of “bypassing/avoiding” PAJA even in the review of administrative action. One of the first authoritative scholars to raise alarm about this trend was Cora Hoexter. Commenting on the development of the principle of legality in the SARFU case, Hoexter argued that the Constitutional Court had expanded its ambit by adding two more elements to it.107 These two elements it will be remembered were the fact that the principle of legality required that the President's decision to appoint the rugby commission of inquiry needed to be recorded in writing and signed and that the President had to act in good faith and not misconstrue his powers.108 Effectively, Hoexter’s argument is that these two factors were not factors to be considered when exercises of public power were reviewed under the principle of legality before the Court’s decision in the SARFU. The further expansion of the legality principle according to her occurred in Pharmaceutical Manufacturers.109 Here, too Hoexter argues, the Constitutional Court did not classify the President's decision as 105 New Clicks: par. 580. 106 Kohn & Corder 2014: 19. 107 Hoexter: 2004: 181. 108 Pharmaceutical Manufacturers: par. 182. 109 Pharmaceutical Manufacturers: par. 16. Page | 29 administrative action; but still found that there were constraints imposed by the Constitution in general, one which was found to be the standard of rationality.110 She further takes issue with the fact that the Court expanded the principle of legality to subsume the standard of rationality which is a specific ground of review under PAJA. In developing rationality as a ground of review for “non-administrative actions”, Chaskalson P explained that rationality could be understood as “a minimum threshold requirement applicable to the exercise of all public power”111 and as of “one of the requirements of the rule of law – which requires all exercises of public power by either the executive or other functionaries to not be arbitrary”.112 Accordingly, “while the courts cannot interfere with a decision simply because it disagreed with it, this applied only to rational decisions”.113 In his view, “it would be strange indeed if a Court did not have the power to set aside a decision that is so clearly irrational”.114 Accordingly, a litigant alleging that public conduct is irrational under a legality review will have to prove “objective irrationality”115 on the part of the decision-maker. Hoexter has characterised the development of the principle of legality in this fashion and the courts’ over-reliance on it as “largely a waste of judicial energy and effort”.116 In addition to this, and using the trilogy cases of Albutt v Centre for the Study of Violence and Reconciliation(‘Albutt’);117 Judicial Service Commission v The Cape Bar Council118 and Democratic Alliance v The President of the Republic of South Africa,119 Lauren Kohn120 has taken Hoexter’s critique of the Constitutional Court’s reliance on the principle of legality further by showing how even the constitutional requirement of rationality is apparently now burgeoning to include its own elements.121 While Kohn has lauded these three judgments for striking a “delicate balance between the competing ideals of ensuring judicial supervision and accountability of the political branches of state on the one hand and ensuring respect for the popular mandate and 110 Hoexter 2004: 182. 111 Pharmaceutical Manufacturers:par. 90. 112 Pharmaceutical Manufacturers: par. 85. 113 Pharmaceutical Manufacturers: par. 90. 114 Pharmaceutical Manufacturers: par. 90 115 Kruger v President of the Republic of South Africa [2008] ZACC 17; 2009 (1) SA 417(CC) (‘Kruger v President of the Republic of South Africa’): par. 52; more on this below. 116 Hoexter 2004: 184. 117 2010 (3) SA 293 (CC). 118 2013 (1) SA 170 (SCA). 119 2013 (1) SA248 (CC). 120 Kohn 2013. 121 See generally Kohn 2013: 827-836. Page | 30 imperatives to govern on the other hand”122 she has nevertheless maintained that these cases represent an equally “dangerous judicial trend”.123 This trend according to her has been to dilute the principle of legality and in particular, its requirement of rationality, in a manner reminiscent of the way in which our pre-constitutional administrative law was “spread too thinly”.124 Regarding the Albutt case, Kohn has argued that the Constitutional Court expanded the rationality requirement to include proportionality. This in her view was not in line with the Court’s well-established precedent. particularly the Court’s ruling in the Masethla125 case in which the majority of the Constitutional Court per Moseneke DCJ found that “procedural fairness is not a requirement of the constitutional principle of legality”126 and that “it would not be appropriate to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action”.127 Indeed, it appears that the Court in the Albutt case read procedural fairness into legality review by holding that the failure of the President to hear the views of the victims in question was procedural unfair.128 To put it as the Court did: (“…”) the requirement to afford the victims a hearing is implicit, if not explicit, in the very specific features of the special dispensation process. Indeed, the context-specific features of the special dispensation and in particular its objectives of national unity and national reconciliation, require, as a matter of rationality, that the victims must be given the opportunity to be heard in order to determine the facts on which pardons are based.129 Moreover, commenting on the case of Judicial Service Commission v The Cape Bar Council, Kohn further argues that the Supreme Court of Appeal (SCA) had extended the rationality requirement to include the duty to give reasons.130 She posits that the rationality requirement under the principle of legality was in this case expanded beyond what is required in terms of the rationality test under PAJA.131 As it shall be seen below, a rationality review under PAJA was couched specifically to empower the courts to engage in a more rigorous review than a rationality review under legality. However, as Kohn has argued, the distinction between these two has since been 122 Kohn 2013: 812. 123 Kohn 2013: 812. 124 Kohn 2013: 812. 125 Masethla v President of the Republic of South Africa 2008 (1) SA 566 (CC). 126 Masethla v President of the Republic of South Africa 2008 (1) SA566 (CC): par. 77. 127 Masethla v President of the Republic of South Africa 2008 (1) SA566 (CC): par. 77. 128 Albutt: par. 71-72. 129 Albutt: par. 72. 130 Kohn 2013: 833. 131 Kohn 2013: 832. Page | 31 blurred. The rationality requirement under legality has now been developed to not only resemble PAJA’s rationality but to also require more than what was initially intended.132 And while this development is laudable and “a victory for our commitment to openness and accountability”133 it is nevertheless unfortunate, first because “the rationality test itself does not mandate the actual giving of reasons, which is a separate requirement under sec. 5 of the PAJA”134 and second because “it has been made without any engagement with the requisites of the doctrine of separation of powers and is insufficiently nuanced”.135 This notwithstanding, it appears that there is a case to be made for the expansion of rationality to include the duty to give a reason, particularly in the Albutt case. This is so primarily because it would be difficult to know on what the President had based his decision to deny the victims the right to be heard without giving reasons.136 More importantly, there is no absolute separation of powers. As the Constitutional Court explained In re: Certification of the Constitution of the Republic of South Africa (‘re- Certification case’):137 “in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of the government upon another, there is no separation of power that is absolute”.138 Indeed, it can also hardly be said that requiring the President to provide written reasons for his decision is a usurpation of his function by the judiciary.139 Regarding the case of the Democratic Alliance v The President of the Republic of South Africa, Kohn argues that the Constitutional Court extended the constitutional requirement of rationality to include proportionality.140 In this respect, she notes the court’s argument that if in arriving at their decisions, public functionaries fail to take into consideration relevant material, that failures would constitute part of the means to achieve the purpose for which the power was conferred. And if those failures had an impact on the rationality of the entire process, then the final decisions will also be 132 See Hoexter 2015: 179. 133 Kohn 2013: 833. 134 Kohn 2013: 833. 135 Kohn 2013: 833. 136 More on this in chapter 3. 137 1996 (10) BCLR 1253 (CC); 1996 (4) SA 744 (CC). 138 Re-Certification case: par. 108-109. 139 Sewpersadh & Mubangizi 2017: 211. 140 Kohn 2013: 834. Page | 32 tainted and not satisfy the standard of rationality.141 For her, it is this kind of reasoning that expands the rationality requirement into the ambit of proportionality. It will be recalled that this case concerned an application for confirmation of constitutional invalidity by the Democratic Alliance to the Constitutional Court of an order made by the SCA declaring the appointment of Mr. Simelane as the National Prosecuting Director of Public Prosecutions (NDPP) by the President inconsistent with the Constitution. This application was opposed by the Minister for Justice and Constitutional Development (‘the Minister’) who contended in the main that neither the Constitution nor the Act142 prescribes any procedure for the appointment of the NDPP. This according to him meant that the President had a wide, subjective discretion in making the appointment and that the SCA applied the reasonableness standard appropriate for administrative action cases under PAJA instead of testing presidential executive action by reference to rationality alone.143 In essence, the Constitutional Court was called upon to determine among other issues whether the failure of the President to consider the adverse findings made by the Ginwala Commission144 against Mr. Simelane rendered his decision procedurally irrational in terms of the principle of legality.145 After citing its earlier decision in Albutt with approval, the Constitutional Court ultimately held that: (“…”) the decision of the President as Head of the National Executive can be successfully challenged only if a step in the process bears no rational relation to the purpose for which the power is conferred and the absence of this connection colours the process as a whole and hence the ultimate decision with irrationality. We must look at the process as a whole and determine whether the steps in the process were rationally related to the end sought to be achieved and, if not, whether the absence of a connection between a particular step (part of the means) is so unrelated to the end as to taint the whole process with irrationality.146 The net results of this ruling was to dilute the principle of legality and in particular, its requirement of rationality, in a manner reminiscent of the way in which our pre- constitutional administrative law was “spread too thinly”.147 It was in this case that we saw for the first time the Court’s blurring of the thin line between the minimum rationality review threshold under legality and the more rigorous rationality review 141 Democratic Alliance v The President of the Republic of South Africa: par. 39. 142 The National Prosecuting Authority Act 32 of 1998. 143 Democratic Alliance: par. 8-9. 144 The Report of the Public Service Commission is dated April 2009. 145 Democratic Alliance: par. 12. 146 Democratic Alliance: par. 37. 147 Kohn 2013: 812. Page | 33 threshold under PAJA. Moreover, not only was the distinction between these two standards of rationality review dealt a mortal blow but as Kohn argues, the Constitutional Court appears to have expanded legality to subsume proportionality.148 This according to her is a concerning development because it demonstrates the court’s failure to appreciate the limits imposed on judicial review by the principle of separation of powers.149 Ultimately, Kohn concludes that this notorious practice is due to the court’s failure to engage meaningfully with the principle of separation of powers particularly in the review of administrative actions.150 As a solution to this incorrect approach, she proposes that courts should meaningfully engage and take seriously what the principle of the separation of powers means when reviewing exercises of public power. Entering the fray on this matter, De Beer has also argued that the expansion of the principle of legality has eroded the distinction between the two pathways of review – the PAJA and legality review.151 According to him, it is Parliament’s role to provide a framework of review for the courts.152 As such, it is unacceptable for the courts to bypass the PAJA and rely on the principle of legality in order to review the actions of state functionaries. This is because “far from having a 'wider' meaning - as mentioned in aspect (e) of the Court's reasoning in Gijima, Parliament elected to narrow the definition of the term [administrative action] with the additional requirements”.153 By the same token, Henrico has characterised the courts’ use of the principle of legality to review exercises of public power by state functionaries as a “subversion of the Promotion of Justice Administrative Act”.154 For his part, the reason for such an approach by the Court is what he calls “judicial expedience”.155 Whether the Court’s development of legality review in this direction is warranted is a matter I deal with more broadly in chapter 3 below. 148 Kohn 2013: 836. 149 Kohn 2013: 836. 150 See Kohn 2013: 836 where he argues that while the courts’ bold use of the principle of legality to review administrative actions is laudable, it is in part also: ‘indicative of a lack of sensitivity to the tenets of our doctrine of separation of powers and the type of deference required by it.’ 151 De Beer 2018: 623. 152 De Beer 2018: 623. 153 De Beer 2018: 619. 154 Henrico 2018: 289. 155 Henrico 2018: 289. Page | 34 2.5 The difference between judicial review under PAJA and the principle of legality It is trite that the principle of legality serves as a safety net and governs the review of all exercises of public power that do not constitute “administrative action” under PAJA.156 In other words, the principle of legality regulates executive action, while PAJA regulates administrative action.157 Moreover, under sec. 6 (2) (h) of PAJA, the courts are empowered to review and set aside any administrative action that fails to meet the standard of reasonableness. Put slightly differently, the courts can review an administrative action if it is so unreasonable that no reasonable person would have taken it.158 There are several factors that a reviewing court should consider when determining whether an administrative action meets the standard of reasonableness. These factors include among others: the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved, and the impact of the decision on the lives and well-being of those affected.159 A reasonable decision in this respect is one that is rational and proportional to the end sought to be achieved.160 Moreover, sec. 7 (1) of PAJA provides that any proceedings for judicial review must be instituted without unreasonable delay and not later than 180 days after the impugned decision has been taken. As can be seen, PAJA imposes exacting constraints on those who seek to rely on it to review exercises of public power. This is different from the generous and flexible principle of legality which provides sanctuary in instances where PAJA may impose an undue burden and deny litigants an opportunity to subject prima facie unscrupulous exercises of public power to judicial review on technical grounds. By way of an example, in its current structure and formulation, sec. 7 (1) of PAJA suggests that the passage of time can sanitize unlawful 156 Boonzaier 2018: 655; State Information Technology Agency Soc Ltd v Giima Holdings 2017 (2) SA 63 (SCA): para. 37. 157 Boonzaier 2018: 657. 158 It is important to note however, that this Wednesbury standard of reasonableness review has come under intense scrutiny and has since be reformulated. For example, in Bato Star Fishing: par. 44, the majority of the Constitutional Court per O’Regan J defined an unreasonable decision as simply “a decision that a reasonable decision-maker could not reach”. 159 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others: par. 45. 160 Minister of Health v New Clicks: par. 637. Page | 35 exercises of public power and render them lawful. In other words, unless the parties to the litigation agree or the court gives an extension beyond the 180 days period, an unlawful exercise of public power cannot be reviewed and therefore remains intact. The net result of this is that those who were prejudiced by the impugned decision remain without any lawful recourse. Factors such as access to court, and the availability of funds to secure legal representation which may have contributed to the delay in instituting legal proceedings are altogether dispensed with – unless the review court exercises its discretion and grants condonation. As the Court held in Passenger Rail Agency of South Africa v Swifambo Rail Agency (Pty) Ltd(‘Passenger Rail Agency of South Africa’):161 (“…”) to hold state institutions too strictly to the prescribed period, and thereby to shield the perpetrators, encourages the commission and concealment of egregious conduct of the nature found in this matter and would discourage prosecution by state institutions. It would also negatively impact on the administration of justice. There is no prejudice to the respondent if the application is heard. The consequences of refusing to hear the application and, as a result, allowing the invalid decision to stand will be borne by the public at large for many future generations. In my view, the hearing of the application will advance the principle of legality and the interests of justice. This is an appropriate case where the time period to have brought the application is extended and should be condoned.162 Indeed, none of the above-mentioned grounds of review and jurisdictional factors (reasonableness and 180 days period) are mandatory for the courts to exercise their judicial reviewing power under the principle of legality. In other words, the scope of review under the principle of legality does not extend to include the standard of reasonableness and neither does it include a specific timeframe like the 180 days as provided under PAJA. Unlike under PAJA where the passage of time is the ultimate factor for determining whether an exercise of public power can be reviewed and set aside, an assessment of delay under the principle of legality only requires the courts to engage in a two-pronged test. This test was first established by the Supreme Court of Appeal in the case of Gqwetha v Transkei Development Corporation Ltd & others (‘Gqetha’)163 and endorsed by the majority of the Constitutional Court per Skweyiya J in Khumalo and another v Member of the Executive Council for Education: KwaZulu-Natal (‘Khumalo’).164 The test was laid out as follows: (a) whether the delay is unreasonable or undue and if so, (b) whether the court adjudicating the judicial 161 2017 (6) SA 223 (GJ). 162Passenger Rail Agency of South Africa: par.74-79. 163 [2005] ZASCA 51. 164 2014 (3) BCLR 333 (CC). Page | 36 review proceedings may exercise its discretion to overlook the delay and proceed to make a determination on the review application.165 If the first question is answered in the negative and the second question in the affirmative, then the reviewing court proceeds to review the alleged abuse of power in question. Moreover, factors such as the egregious conduct of the senior officials within a public functionary; lack of good faith and fidelity towards the interests of this national asset; the interests of justice and the protection of the foundational basis of the rule of law and constitutionalism may sway a reviewing court to intervene and condone the delay beyond the 180 days requirement when the exercise of public power is reviewed through the principle of legality.166 More importantly, procedural fairness is not a self- standing ground of review under the principle of legality. This is so because as the majority of the Constitutional Court per Moseneke DCJ held in the Masethla: “it would not be appropriate to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action”.167 However, as things currently stands, this clear distinction between PAJA and legality review has since become blurred. For example, the supposedly low-intensity rationality test associated with the principle of legality has become far more rigorous in practice, to the extent that it now mimics the harder-look rationality ground listed in the PAJA.168 Even more concerning, the principle of legality has in some cases been held to require procedural fairness – a clear and separate ground of review under the more exacting PAJA.169 The conclusion that legality has since been developed to resemble PAJA or require more than it does is becoming difficult to resist. Be that as it may, the development of legality in the manner and direction it has taken seems to be the Constitutional Court’s creative attempt to bring all exercises of public power under some degree of public law control170 – albeit one that creates problems for the formulation of a principled theory of deference and the doctrine of the separation of powers.171 For example, legality was initiated, interpreted and couched so as to 165 Khumalo: par. 49. 166 See Eskom Holdings SOC Limited: par. 10. 167 Masethla v President of the Republic of South Africa 2008 (1) SA566 (CC): par. 77. 168 Hoexter 2015: 175. 169 See for instance, the Albutt case. I deal with this aspect more comprehensively in chapter 3. 170 Hoexter 2015: 176. 171 I return to this argument in chapter 4. Page | 37 empower a reviewing court to review exercises of public power for rationality if the impugned decision was “objectively irrational”.172 This is what the Constitutional Court in Pharmaceutical Manufacturers described as “the minimum threshold test of rationality” which is clearly distinguishable from the more rigorous and searching ground of rationality laid down in sec. 6(2) (f)(ii) of PAJA.173 The idea behind this restrained inquiry according to the Court was to give the legislature and executive the widest possible latitude within the limits of the Constitution.174 However, in the same judgment, the Court went on to hold that the distinction between rationality under PAJA and legality review is one without a difference. According to the Court, it would be wrong to suggest that ‘whether the means are rationally related to the ends in executive decision-making somehow involves a lower threshold’ than in the case of administrative action, because ultimately: Rationality does not conceive of differing thresholds. It cannot be suggested that a decision that would be irrational in an administrative law setting might mutate into a rational decision if the decision being evaluated was an executive one.175 According to the Court: “the separation of powers has nothing to do with whether a decision is rational… either the decision is rational or it is not”.176 Moreover, rationality requires that “both the process by which the decision is made and the decision itself must be rational”177 and that “everything done in the process of taking the decision constitutes means towards the attainment of the purpose for which the power was conferred”.178 It seems the Constitutional Court has since abandoned legality’s previous “objective irrationality” standard of review and adopted PAJA’s more rigorous rationality standard, thus further blurring the distinction between these two pathways of reviews. The question that remains to be answered is what has necessitated the development of legality in this fashion and direction and what has informed its approach in general. I attempt to provide possible reasons for this development in chapter 3 below. 172 Kruger v President of the Republic of South Africa [2008] ZACC 17; 2009 (1) SA 417(CC): par. 52. 173 Pharmaceutical Manufacturers: 90; Hoexter 2015: 178. 174 Democratic Alliance v President of the Republic of South Africa [2012] ZACC 24; 2013 (1) SA 248(CC) (‘Democratic Alliance’): par. 42. 175 Democratic Alliance: par. 44. 176 Democratic Alliance: par. 44. 177 Democratic Alliance: par. 34-36 178 Democratic Alliance: par. 36-37. Page | 38 2.6 Conclusion In conclusion, I attempt in this chapter to summarise the prevailing view in administrative law on the relationship between PAJA and the principle of legality – which insists that these two mechanisms of review should not be used interchangeably and that instead, they should be applied separately, within each of their scopes of application. I also by way of summary outline some of the reasons that have been proffered as a justification for the prevailing view. For example, it has been argued that the courts’ reliance on the principle of legality before determining if PAJA applies amounts to a subversion and “blatant avoidance’ of the latter. It has been argued that such a practice amounts to subversion of the principle of subsidiarity and the separation of powers. It will be seen from the discussion above that the prevailing approach is further anchored on the understanding that the principle of legality serves as a safety net and governs the review of all exercises of public power that do not constitute “administrative action” under PAJA.179 In other words, the principle of legality regulates executive action, while PAJA regulates administrative action.180 I have also briefly discuss the history of judicial review both at common law where it was informed and anchored on the twin-pillars of procedural fairness and the ultra vires doctrine and under the Constitution where it now rests on sec. 33 which mandates Parliament to enact a national legislation to give effect to the right to the administrative action. More importantly, I also attempt to map the history of the emergence and development of the principle of legality and the reasons for it. I argue that the Constitutional Court’s Court creative attempt of using the principle of legality to bring all exercises of power under some degree of public law control has not been widely accepted – indeed it has been criticised as a form of “PAJA avoidance” and “judicial expediency” among other things. This is so because as others have argued, legality has now been developed to not only resemble PAJA but to required more than it does.181 179 Boonzaier 2018: 655; State Information Technology Agency Soc Ltd v Giima Holdings 2017 (2) SA 63 (SCA): par. 37. 180 Boonzaier 2018: 657. 181 Hoexter 2015: 165. Page | 39 Page | 40 CHAPTER 3 Has the application of the prevailing approach caused an undue development and broadening of legality as a channel for review? 3.1 Introduction As discussed in chapter 2 above, the prevailing view maintains that PAJA and legality should be kept as separate pathways of review and not be used interchangeably. This has been said to accord with among other constitutional principles – the principle of subsidiarity and by extension, the principle of separation of powers. In practice, this has also meant that only PAJA can be relied upon to review administrative actions while the principle of legality serves as the pathway to review all exercises of public powers which do not fall under PAJA’s definition threshold of ‘administrative action’. I ask in this chapter whether the application of this approach has not inadvertently caused an undue development or broadened of the principle of legality as a channel for review of exercises of public power including those administrative in nature which are reviewable under PAJA. This is an important question to ask in light of the fact that due to the undesirability to preclude executive actions from procedural fairness review, the courts have on some occasions subsumed procedural fairness as self-standing ground of review under the principle of legality. As a result of this nuanced approach, the