Procedure for Review

©LegallyHope2020


PROCEDURE FOR REVIEW

TOPICS

1. The Duty to Exhaust Internal Remedies
2. Delay Rule
3. Purpose of Rule 53 Procedure

INTRODUCTION

 Set out in Section 7 of the PAJA.
 Section 9 of the PAJA also finds application here.
 It allows for variations and deviations of time limits.

The Duty to Exhaust Internal Remedies

Hoexter always starts with the development and looks into the common law duty to
exhaust internal remedies before she goes onto the PAJA and what it requires.

 Section 7 (2) of the PAJA stipulates that no court or tribunal shall review an
administrative action in terms of then Act unless any internal remedy provided for in
any other law has first been exhausted.
 So, essentially, before an applicant proceeds with judicial review we must ask:
 Are there any internal remedies?
 Have these remedies been exhausted (used)?
 What the duty does is to defer a complainant’s access to court-based remedies.
 This section has three essential elements, and they are illustrated in the subsections.
 The first two elements are mandatory and appear to be harsh, the last element
gives the court discretion to soften the harshness of the first two elements.


The elements of section 7(2) of the PAJA:
a) The duty to exhaust internal remedies
 Courts/Tribunals are not allowed to review AA in terms of the PAJA unless any
internal remedy provided for in any other law has first been exhausted - the duty
b) The duty to direct applicant to exhaust internal remedies
 If a court or tribunal is not satisfied that any internal remedy has been exhausted,
it must direct that the applicant first exhaust such remedy before instituting
proceedings in terms of the PAJA.
c) Condonation - in exceptional circumstances
 A court or tribunal may, in exceptional circumstances and on application by the
person concerned, exempt such person from the duty to exhaust internal
remedies.
 This is discretionary. The ‘gloss’

, ©LegallyHope2020


 Why is it important?
 It avoids wasting the courts’ time with complaints that could have been settled
sooner and more cheaply by officials chosen specifically for the purpose.
 Koyabe - to allow litigants to proceed straight to court would be to undermine
autonomy of the administrative process - separation of powers consideration
 Institutional competency considerations were also raised in Koyabe.
 Application of the Duty
 The duty is not an absolute duty - s7(2) allows for exemption in exceptional
circumstances
 Koyabe - the duty should not be apply rigidly or be used by administrators to
frustrate the efforts of the applicant or to shield the administrative process
from judicial scrutiny.
 Koyabe - an aggrieved person must take reasonable steps to exhaust internal
remedies.
 Exceptional Circumstances
 Koyabe - depends on the fact of the case and the nature of the administrative
action.
 In general, the courts must consider the availability, effectiveness, and
adequacy of the existing remedies, and where its pursuit would be futile, a
court may permit a litigant to approach the court directly - Koyabe
 The mere lapsing of an available remedy does not constitute an exceptional
circumstance.
 Internal Remedy
 A remedy will be effective if it is implemented objectively.
 An internal remedy must also be readily available, and it must be possible to pursue
without any obstruction, whether systemic or arising from unwarranted administrative
conduct - Koyabe
 Koyabe - a remedy would have to be available, effective and adequate in order to
count as an existing internal remedy.
 Summary
 Judicial review is prohibited unless any internal remedy provided for in any
other law has been exhausted.
 The court is obliged to turn the applicant away if it is not satisfied that internal
remedies have been exhausted.