Term 4 Admin
The Constitution s 38 – Standing
When it comes to AA, standing is very broad. The issue of standing asks who may come to court and who may
invoke the right to challenge a decision. The answer lies in s 38 of the Constitution, which applies to
administrative litigation. So, if you are working through a problem question and wondering whether this person
has standing to bring the review, all you need to know is that, likely, yes, they do.
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of
Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of
rights. The persons who may approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members
Any person, even if not specifically affected by the decision, may bring a challenge. In a problem question you
simply note that the person has standing under section 38 and move on.
Section 7 PAJA – Procedure for judicial Review
(1) Any proceedings for judicial review in terms of section 6(1) [which provides that any person may institute
proceedings in a court or tribunal for the judicial review of an administrative action] must be instituted without
unreasonable delay and not later than 180 days after the date-
(a) subject to subsection (2)(c), on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed of the administrative action,
became aware of the action and the reasons for it or might reasonably have been expected to have become
aware of the action and the reasons.
,Section 7(2) – the duty to exhaust internal remedies
(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act
unless any internal remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in
paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before
instituting proceedings in a court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt
such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the
interest of justice.
S 9 – Variation of Time
(1) The period of-
(b) 90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period, by
agreement between the parties or, failing such agreement, by a court or tribunal on application by the
person or administrator concerned.
(2) The court or tribunal may grant an application in terms of subsection (1) where the interests of
justice so require.
Rule 53 of the Uniform Rules of Court (about the procedure of reviewing AA)
• The application procedure to review a decision = notice of motion + founding affidavit. The applicant
has to set out the ground, facts and circumstances on which they rely and what they believe is wrong
with the decision. The notice calls upon the decision-maker and any affected parties to show cause why
the decision should not be reviewed, corrected or set aside.
• Rule 53(1)(b): notice should call upon the officer concerned to send a record of the impugned decision
or proceedings to the registrar within 15 days.
• What Rule 53(1)(b) gives you is the ability to get information on how the decision was made.
• The decision-maker must provide a record of the impugned decision or proceedings.
, • And the right to receive this record flows automatically from instituting review proceedings. It is not
something you have to show you are worthy of receiving; it is something to which you are entitled.
• Sub-rule (4) then allows the applicant ten days after receiving the record to amend the notice of motion
and supplement the founding affidavit.
• The ‘Record’ = the documents, evidence, arguments and other information before the decision-maker
relating to the matter under review when the decision was made. Information is considered relevant if it
sheds light on the decision-making process and the factors that were at play in the mind of the decision-
maker.
• Providing the record promotes accountability, transparency and the proper administration of justice
• Ensures that ‘review proceedings are not launched in the dark.’ [HSF para 13]
• It also helps with accountability, because it means that irregularities in the decision-making process can
be exposed, and it allows an applicant to test the soundness of the decision. And it supports the right of
access to justice.
• We have informed applications for review coming before the courts. It is also about
having effective processes for challenging decisions.
• Once the applicant has the record, they can amend their application documents and
may find that there actually is another basis for review – that there was bias, say, or
capricious decision-making.
Helen Suzman Foundation v Judicial Service Commission (2018, CC)
Facts:
In 2012, the JSC advised the President to appoint certain candidates to the Western Cape High Court.
In other words, it recommended that certain persons be appointed and others not. The Helen Suzman
Foundation was not pleased with this, so it wanted the decision reviewed and set aside. But it wanted
to mount the best possible challenge, with as much information as possible. So what did it do? It
requested the Rule 53 record.
, Prior to this case, there was a lot of uncertainty about whether the internal deliberations of a
decision-making body would count as part of the Rule 53 record. Here we are dealing with the
private deliberations – the discussions of the JSC after the candidates' interviews. The Helen Suzman
Foundation said: we want those deliberations. We want the audio recordings, or the transcripts. We
want to know what was being discussed in that room.
The JSC said no: we are not going to hand over our deliberations.
The JSC's position was that the interviews themselves were public – people could tune in and watch
the interviews taking place – and that this should be enough. It said: we will give you our notes, we
will tell you what our decisions were, and we will give you our assessments of the different
candidates; but we are not going to give you access to the discussion that happened afterwards. The
Foundation's response was: but that is exactly what will help us understand how the decisions were
made. We were unhappy about who was and was not recommended; we can watch the interviews,
but we cannot find out how the decision actually came about.
The majority's decision:
Despite the uncertainty in this area, the Constitutional Court held that the Rule 53 record does include the
deliberations of a decision-making body. The majority said that deliberations are relevant to the record,
because:
Deliberations are relevant to the record as ‘they may well provide evidence of reviewable
irregularities in the process, such as bias, ulterior purpose, bad faith, the consideration of irrelevant
factors, a failure to consider relevant factors, [etc.]. Absent disclosure, these irregularities would
remain hidden. Deliberations are the most immediate and accurate record of the process leading
up to the decision.’
The question, said the court, is whether there is some legally cognisable basis on which
the deliberations must nonetheless be excluded from a Rule 53 record [paras 23–24].
The court suggested is that there may be certain information which is privileged. Even
though information is relevant, it may be privileged and, as such, should not be disclosed.
Essentially, the main consideration the court was getting at was the interests of justice. If we
The Constitution s 38 – Standing
When it comes to AA, standing is very broad. The issue of standing asks who may come to court and who may
invoke the right to challenge a decision. The answer lies in s 38 of the Constitution, which applies to
administrative litigation. So, if you are working through a problem question and wondering whether this person
has standing to bring the review, all you need to know is that, likely, yes, they do.
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of
Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of
rights. The persons who may approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members
Any person, even if not specifically affected by the decision, may bring a challenge. In a problem question you
simply note that the person has standing under section 38 and move on.
Section 7 PAJA – Procedure for judicial Review
(1) Any proceedings for judicial review in terms of section 6(1) [which provides that any person may institute
proceedings in a court or tribunal for the judicial review of an administrative action] must be instituted without
unreasonable delay and not later than 180 days after the date-
(a) subject to subsection (2)(c), on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed of the administrative action,
became aware of the action and the reasons for it or might reasonably have been expected to have become
aware of the action and the reasons.
,Section 7(2) – the duty to exhaust internal remedies
(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act
unless any internal remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in
paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before
instituting proceedings in a court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt
such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the
interest of justice.
S 9 – Variation of Time
(1) The period of-
(b) 90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period, by
agreement between the parties or, failing such agreement, by a court or tribunal on application by the
person or administrator concerned.
(2) The court or tribunal may grant an application in terms of subsection (1) where the interests of
justice so require.
Rule 53 of the Uniform Rules of Court (about the procedure of reviewing AA)
• The application procedure to review a decision = notice of motion + founding affidavit. The applicant
has to set out the ground, facts and circumstances on which they rely and what they believe is wrong
with the decision. The notice calls upon the decision-maker and any affected parties to show cause why
the decision should not be reviewed, corrected or set aside.
• Rule 53(1)(b): notice should call upon the officer concerned to send a record of the impugned decision
or proceedings to the registrar within 15 days.
• What Rule 53(1)(b) gives you is the ability to get information on how the decision was made.
• The decision-maker must provide a record of the impugned decision or proceedings.
, • And the right to receive this record flows automatically from instituting review proceedings. It is not
something you have to show you are worthy of receiving; it is something to which you are entitled.
• Sub-rule (4) then allows the applicant ten days after receiving the record to amend the notice of motion
and supplement the founding affidavit.
• The ‘Record’ = the documents, evidence, arguments and other information before the decision-maker
relating to the matter under review when the decision was made. Information is considered relevant if it
sheds light on the decision-making process and the factors that were at play in the mind of the decision-
maker.
• Providing the record promotes accountability, transparency and the proper administration of justice
• Ensures that ‘review proceedings are not launched in the dark.’ [HSF para 13]
• It also helps with accountability, because it means that irregularities in the decision-making process can
be exposed, and it allows an applicant to test the soundness of the decision. And it supports the right of
access to justice.
• We have informed applications for review coming before the courts. It is also about
having effective processes for challenging decisions.
• Once the applicant has the record, they can amend their application documents and
may find that there actually is another basis for review – that there was bias, say, or
capricious decision-making.
Helen Suzman Foundation v Judicial Service Commission (2018, CC)
Facts:
In 2012, the JSC advised the President to appoint certain candidates to the Western Cape High Court.
In other words, it recommended that certain persons be appointed and others not. The Helen Suzman
Foundation was not pleased with this, so it wanted the decision reviewed and set aside. But it wanted
to mount the best possible challenge, with as much information as possible. So what did it do? It
requested the Rule 53 record.
, Prior to this case, there was a lot of uncertainty about whether the internal deliberations of a
decision-making body would count as part of the Rule 53 record. Here we are dealing with the
private deliberations – the discussions of the JSC after the candidates' interviews. The Helen Suzman
Foundation said: we want those deliberations. We want the audio recordings, or the transcripts. We
want to know what was being discussed in that room.
The JSC said no: we are not going to hand over our deliberations.
The JSC's position was that the interviews themselves were public – people could tune in and watch
the interviews taking place – and that this should be enough. It said: we will give you our notes, we
will tell you what our decisions were, and we will give you our assessments of the different
candidates; but we are not going to give you access to the discussion that happened afterwards. The
Foundation's response was: but that is exactly what will help us understand how the decisions were
made. We were unhappy about who was and was not recommended; we can watch the interviews,
but we cannot find out how the decision actually came about.
The majority's decision:
Despite the uncertainty in this area, the Constitutional Court held that the Rule 53 record does include the
deliberations of a decision-making body. The majority said that deliberations are relevant to the record,
because:
Deliberations are relevant to the record as ‘they may well provide evidence of reviewable
irregularities in the process, such as bias, ulterior purpose, bad faith, the consideration of irrelevant
factors, a failure to consider relevant factors, [etc.]. Absent disclosure, these irregularities would
remain hidden. Deliberations are the most immediate and accurate record of the process leading
up to the decision.’
The question, said the court, is whether there is some legally cognisable basis on which
the deliberations must nonetheless be excluded from a Rule 53 record [paras 23–24].
The court suggested is that there may be certain information which is privileged. Even
though information is relevant, it may be privileged and, as such, should not be disclosed.
Essentially, the main consideration the court was getting at was the interests of justice. If we
