Administrative law – LAWS4063A → Topic 4: Reasonableness and Rationality GoR
Prescribed readings:
• Quinot (2020): Chapter 8 (199-225)
• Bato Star Fishing v Minister of Environmental Affairs (supra) (see also Calibre para 60
(supra); Motau (supra) para 69 fn 101)
• Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC
24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC)
• Judicial Service Commission and Another v Cape Bar Council and another (818/2011)
[2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA
40 (SCA) (14 September 2012) (55 paras)
• Minister of Defence and Another v Xulu (337/2017) [2018] ZASCA 65; 2018 (6) SA 460
(SCA)
• Trinity Broadcasting (Ciskei) v Independent Communications Authority of South Africa
(56/2003) [2003] ZASCA 119; [2003] 4 All SA 589 (SCA)
• WWF South Africa v Minister of Agriculture, Forestry and Fisheries (11478/18) [2018]
ZAWCHC 127; [2018] 4 All SA 889 (WCC)
• Ocean Ecological Adventures (Pty) Ltd v Minister of Environmental Affairs (6744/2018)
[2019] ZAWCHC 42; [2019] 3 All SA 259 (WCC)
• Ehrlich v Minister of Correctional Services and Another (6113/2007) [2008] ZAECHC
33; 2009 (2) SA 373 (E) 2009 (1) SACR 588 (E) (5 May 2008)
Learning Outcomes:
• Identify the provisions in the Constitution and PAJA dealing with the reasonableness
requirement for administrative action.
• Analyse and explain the reasonableness requirement for administrative action in the
Constitution and PAJA.
• Apply the reasonableness requirement for administrative action to a set of facts.
• Identify the provisions in the PAJA dealing with the rationality requirement for
administrative action.
• Explain the relationship between reasonableness and rationality as grounds of review.
• Analyse and explain the rationality requirement for administrative action in the PAJA.
• Apply the rationality requirement for administrative action to a set of facts
8.1 Introduction
➢ Judges not supposed to decide on merits of AA (whether correct or not)
Cornerstone of dist btw appeal and review
➢ Main reason = SoP
➢ Judge deciding merits of AA → intrusion of judiciary into province of executive
Page 1 of 13
, ➢ Also practical reason for SoP: judges are not qualified to make admin decisions
Administrators are experts in their respective fields and thus their decisions ought to
be respected and carry weight
➢ Reasonableness as ground of review blurs the lines distinguishing appeal and review,
as well as merits and regularity
Decision on whether admin decision is reasonable involves considering merits of
decision but does not involve deciding whether decision is right or wrong
➢ Reasonableness also controversial because it is not absolute
» Some grounds of review are absolute – they are either present or they are not (not
a matter of degree)
- Unlawful delegation or not
- Compliance w. mandatory requirements of empowering legislation or not
➢ Typical challenge to AA:
▪ Person decides to challenge AA because believe was wrongly decided
▪ Usually person attempted to challenge merits of decision using appeal process
▪ Cannot then challenge merits in court if unsuccessful → must find other ground to
challenge decision
▪ If decides to argue on ground of reasonableness → court must det in circumstances
of each case
» Context-specific inquiry
» Line btw reasonable and unreasonable drawn diff depending on circumstances of
each case
Sir Jeffrey Jowell dist 3 diff categories of unreasonableness:
a) Extreme defect in decision-making process
⬧ Assessment focuses on reasoning/ justification for decision (quality of
argument supporting decision)
Decisions taken in bad faith
Decisions based on considerations wrongly taken into account, ignored or
given inappropriate weight
Strictly irrational decisions – inadequate evidence or reasoning to justify
b) Decision taken in violation of CL principles governing exercise of official power
⬧ Unless expressly provided otherwise, principles apply even where discretion
conferred widely
Principles of equality and legal certainty
c) Oppressive decisions
⬧ Unnecessarily onerous impact on affected persons, or
⬧ Means employed are excessive or disproportionate in their result
Quoted w. approval in Ehrlich v Min of Correctional Services case
Page 2 of 13
Prescribed readings:
• Quinot (2020): Chapter 8 (199-225)
• Bato Star Fishing v Minister of Environmental Affairs (supra) (see also Calibre para 60
(supra); Motau (supra) para 69 fn 101)
• Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC
24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC)
• Judicial Service Commission and Another v Cape Bar Council and another (818/2011)
[2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA
40 (SCA) (14 September 2012) (55 paras)
• Minister of Defence and Another v Xulu (337/2017) [2018] ZASCA 65; 2018 (6) SA 460
(SCA)
• Trinity Broadcasting (Ciskei) v Independent Communications Authority of South Africa
(56/2003) [2003] ZASCA 119; [2003] 4 All SA 589 (SCA)
• WWF South Africa v Minister of Agriculture, Forestry and Fisheries (11478/18) [2018]
ZAWCHC 127; [2018] 4 All SA 889 (WCC)
• Ocean Ecological Adventures (Pty) Ltd v Minister of Environmental Affairs (6744/2018)
[2019] ZAWCHC 42; [2019] 3 All SA 259 (WCC)
• Ehrlich v Minister of Correctional Services and Another (6113/2007) [2008] ZAECHC
33; 2009 (2) SA 373 (E) 2009 (1) SACR 588 (E) (5 May 2008)
Learning Outcomes:
• Identify the provisions in the Constitution and PAJA dealing with the reasonableness
requirement for administrative action.
• Analyse and explain the reasonableness requirement for administrative action in the
Constitution and PAJA.
• Apply the reasonableness requirement for administrative action to a set of facts.
• Identify the provisions in the PAJA dealing with the rationality requirement for
administrative action.
• Explain the relationship between reasonableness and rationality as grounds of review.
• Analyse and explain the rationality requirement for administrative action in the PAJA.
• Apply the rationality requirement for administrative action to a set of facts
8.1 Introduction
➢ Judges not supposed to decide on merits of AA (whether correct or not)
Cornerstone of dist btw appeal and review
➢ Main reason = SoP
➢ Judge deciding merits of AA → intrusion of judiciary into province of executive
Page 1 of 13
, ➢ Also practical reason for SoP: judges are not qualified to make admin decisions
Administrators are experts in their respective fields and thus their decisions ought to
be respected and carry weight
➢ Reasonableness as ground of review blurs the lines distinguishing appeal and review,
as well as merits and regularity
Decision on whether admin decision is reasonable involves considering merits of
decision but does not involve deciding whether decision is right or wrong
➢ Reasonableness also controversial because it is not absolute
» Some grounds of review are absolute – they are either present or they are not (not
a matter of degree)
- Unlawful delegation or not
- Compliance w. mandatory requirements of empowering legislation or not
➢ Typical challenge to AA:
▪ Person decides to challenge AA because believe was wrongly decided
▪ Usually person attempted to challenge merits of decision using appeal process
▪ Cannot then challenge merits in court if unsuccessful → must find other ground to
challenge decision
▪ If decides to argue on ground of reasonableness → court must det in circumstances
of each case
» Context-specific inquiry
» Line btw reasonable and unreasonable drawn diff depending on circumstances of
each case
Sir Jeffrey Jowell dist 3 diff categories of unreasonableness:
a) Extreme defect in decision-making process
⬧ Assessment focuses on reasoning/ justification for decision (quality of
argument supporting decision)
Decisions taken in bad faith
Decisions based on considerations wrongly taken into account, ignored or
given inappropriate weight
Strictly irrational decisions – inadequate evidence or reasoning to justify
b) Decision taken in violation of CL principles governing exercise of official power
⬧ Unless expressly provided otherwise, principles apply even where discretion
conferred widely
Principles of equality and legal certainty
c) Oppressive decisions
⬧ Unnecessarily onerous impact on affected persons, or
⬧ Means employed are excessive or disproportionate in their result
Quoted w. approval in Ehrlich v Min of Correctional Services case
Page 2 of 13
