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The proverbial saying goes: two’s company; three’s a crowd. This about encapsulates the awkward relationship between the fundamental right to administrative justice (in section 33 of the Constitution), the Promotion of Administrative Justice Act, 2000, enacted to give legislative effect to the right, and the common-law principles of judicial review of administrative action. Following the dawn of the constitutional era in 1994, there was ‘a seismic shift in our administrative law’. Chaskalson JP explained the implications of this shift in the Pharmaceutical Manufacturers case:
[A]dministrative law occupies … a special place in our jurisprudence … It is built on constitutional principles … Prior to the coming into force of the interim Constitution, the common law was ‘the main crucible’ for the development of these principles of constitutional law. The interim Constitution … was a legal watershed. It shifted constitutionalism, and with it all aspects of public law, from the realm of the common law to the prescripts of a written constitution which is the supreme law.
Lawyers and Judges alike had to adapt to this shift and on balance, in the pre-PAJA era, they did not fare so badly. Currie notes that, ‘[t]he courts, with a few hiccups, rapidly became accustomed to this new system’. This outcome, claims Currie, was not particularly surprising, given the fact that, ‘besides the constitutional grounding of the basis for judicial review (and once one is over the constitutional
threshold concept of administrative action), the application of the subsumed common-law rules and principles of administrative law proceeded pretty much as it had always done’. For a while, the two thus made pretty good company. Following the enactment of the PAJA, however, this apparently happy union was upset and ‘two’s company’ became a curious crowd. The disjuncture in the interplay between the common law, the PAJA and the Constitution has resulted in both awkward overlaps (flowing from the ‘proliferation of pathways’ to judicial review) and dubious oversights (flowing primarily from the PAJA’s narrow and complicated definition of administrative action and the ‘nonappearance of certain well-established grounds of review’) in section 6(2). The net result has been a misalignment between the theoretically simple interplay anticipated between the Constitution, the PAJA and the common law that was so neatly explained in the Bato Star and Pharmaceutical Manufacturers cases, and that which has subsequently played out in practice before the courts. The judicial response to this strained union evidences both a reticence to put the theory into practice and an apparent misunderstanding of the theory itself. Thus, theory and practice – or, put differently, the hopes and the reality – pertaining to this interplay have failed to align.
In this article, I seek to illustrate why this has come to be so, and how this curious relationship has manifested itself in practice with reference to case law that evidences ‘the pathologies of the judicial response’. In doing so, I draw attention to the more extensive role of the common law that has, albeit inadvertently, ensued. I thereby proceed to refute the oft-cited claim that the rights to administrative justice in section 33 of the Final Constitution, 1996, have replaced the common law principles of judicial review of administrative action entirely, thus relegating them to mere aids in the interpretation of the grounds of review set out in the Constitution and the PAJA, and related matters. The irony of the interplay that has panned out in practice is that the common law principles of judicial review of administrative action have come to play more than the mere interpretative role that was originally intended. I turn now to illustrate why and how this has come to be so.
Download a copy of the original article as published in the SA Public Law journal here or via Sabinet.
Citation: Kohn, L ‘Our curious administrative law love triangle: The complex interplay between the PAJA, the Constitution and the common law’ (2013) 28 SA Public Law 22
Judicial endorsements include:
- The Member of the Executive Council for the Department of Co-Operative Governance and Traditional Affairs: Free State 1 v The Maluti-A-Phofung Local Municipality 2022 JDR 1560 (FB) at fn 12.
- Surrogacy Advisory Group v Minister of Health [2022] 4 All SA 187 (GP). Endorsed at para 36, ‘Kohn adds to that buck-passing and no-fettering rule as not included in the Act itself, but finding direct application through this…’.