Chapter 10: Remedies in judicial review proceedings
If X’s right to just administrative action in s33 has been breached
S38 of Constitution
- Entitles X to appropriate relief
- X can approach competent court if he alleges that a right in BOR has been infringed/threatened
- Court may then grant appropriate relief, including declaration of rights
Fose case
- Entitlement to appropriate relief must mean an ‘effective remedy’
- Without such effective remedies for a breach
o Values and the rights entrenched in Constitution cannot be upheld
o Courts thus have an obligation to ‘forge new tools’, if need be, to achieve this goal
Appropriate relief takes form of
- Public-law remedies
o Balance and protect range of affected interests, including public interests
Steenkamp case: Purpose of judicial review remedies
o Correct/reverse an improper administrative function
o Afford prejudiced party administrative justice
o Advance efficient and effective public administration as required by Constitution
o Entrench rule of law
To achieve this purpose
o Remedy must fit the injury
o Must take into account all relevant considerations and affected interests
Steenkamp case: The remedy must be
- Fair to those affected by it
- Vindicate effectively the right that was violated
- Just and equitable in light of
o Facts
o Constitutional principles
o Controlling law (if any)
Approach in determining appropriate remedy
- Flexible
- Context-sensitive
- Pragmatic
S8 of PAJA
- Affords court a generous jurisdiction
- Remedy must be ‘just and equitable’
o Court may grant any order that is just and equitable
o Provides open list of remedies that court may grant
Court may
- Set aside irregular decision
- Remit matter to administrator for a new decision to be taken
- Execeptional cases, court may
o Substitute its own decision for that of the administrator
- Direct that administrator act in an appropriate manner
- Prohibit administrator from acting in particular manner
- Order administrator to pay compensation to affected parties
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If X’s right to just administrative action in s33 has been breached
S38 of Constitution
- Entitles X to appropriate relief
- X can approach competent court if he alleges that a right in BOR has been infringed/threatened
- Court may then grant appropriate relief, including declaration of rights
Fose case
- Entitlement to appropriate relief must mean an ‘effective remedy’
- Without such effective remedies for a breach
o Values and the rights entrenched in Constitution cannot be upheld
o Courts thus have an obligation to ‘forge new tools’, if need be, to achieve this goal
Appropriate relief takes form of
- Public-law remedies
o Balance and protect range of affected interests, including public interests
Steenkamp case: Purpose of judicial review remedies
o Correct/reverse an improper administrative function
o Afford prejudiced party administrative justice
o Advance efficient and effective public administration as required by Constitution
o Entrench rule of law
To achieve this purpose
o Remedy must fit the injury
o Must take into account all relevant considerations and affected interests
Steenkamp case: The remedy must be
- Fair to those affected by it
- Vindicate effectively the right that was violated
- Just and equitable in light of
o Facts
o Constitutional principles
o Controlling law (if any)
Approach in determining appropriate remedy
- Flexible
- Context-sensitive
- Pragmatic
S8 of PAJA
- Affords court a generous jurisdiction
- Remedy must be ‘just and equitable’
o Court may grant any order that is just and equitable
o Provides open list of remedies that court may grant
Court may
- Set aside irregular decision
- Remit matter to administrator for a new decision to be taken
- Execeptional cases, court may
o Substitute its own decision for that of the administrator
- Direct that administrator act in an appropriate manner
- Prohibit administrator from acting in particular manner
- Order administrator to pay compensation to affected parties
1
