By Michael Jones (Associate at Hayes Incorporated)
It is a fundamental principle of the South African law that government agencies and public functionaries may only do that which they are legally authorised to do. This is known as the ‘principle of legality’ and was espoused in the seminal case of Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC).
Any public actions that are taken either without lawful authority are susceptible to being set aside by a court in an application for the judicial review of such action. Public acts which fall within the definition of ‘administrative action’ as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) are reviewable in accordance with those grounds set out in the Act. For example, any decision whereby the decision-maker failed to apply their mind, is reasonably suspected of bias, or made a material error of law in making their decision are reviewable. All other public actions which fall outside the definition of ‘administrative action’ are also subject to judicial review according to the narrower ground of so-called ‘legality review’, which is primarily concerned with the rationality of the decision.
Judicial review has become a key method for holding government agencies and public functionaries to account and to maintain oversight of public actions. Judicial review is also often a feature of the most prominent cases which make the news headlines. The following two recent High Court decisions illustrate this.
The case of Democratic Alliance v Minister of International Relations and Cooperation & Others 2017 (3) SA 212 (GP) concerned the Government’s decision to withdraw from the jurisdiction of the International Criminal Court without obtaining prior parliamentary approval. The government’s decision stemmed from the fallout over its failure to arrest Sudanese president Omar al-Bashir in June 2015 whilst he was in South Africa for an African Union summit. At the time, the ICC had issued a warrant for the arrest of President al-Bashir, and South Africa, being a signatory to the Rome Statute, was obliged to effect such arrest, which it failed to do. In October 2016 the Minister gave notice to the Secretary-General of the United Nations that South Africa was withdrawing from the jurisdiction of the Rome Statute and the ICC.
The DA challenged the Government’s decision on a number of grounds, including that prior parliamentary approval was required before notification in accordance with section 231 of the Constitution, and that it was procedurally irrational to deliver notification without first consulting Parliament.
The High Court in Pretoria acknowledged that ‘the exercise of all public power, including the conducting of international relations, must accord with the Constitution’. In the Court’s view, as the notice of withdrawal had legal effects in international law, the notice was akin to the ratification of a treaty falling within the ambit of section 231(2) of the Constitution, and which therefore required prior parliamentary approval. The Court also noted the difficulty with the proposition that, as Parliament had been required to ratify the Rome Statute to bring it into effect in South Africa, the Minister could simply terminate this state of affairs without parliamentary approval. As parliamentary approval was lacking at the time the notice was given, the Court held that the Minister’s decision was unconstitutional and unlawful. The Court also rejected the view that Parliament could ‘cure’ the invalidity of the Minister’s decision by subsequently approving the withdrawal.
Having found that the parliamentary approval was required before the notice of withdrawal was given, the Court also held that the Government’s decision to proceed without first consulting Parliament was procedurally irrational. As consulting Parliament was a necessary step for the Government to have acted rationally in the circumstances, its failure to do so deemed its process irrational, and, as a result, contrary to the principle of legality and therefore unlawful.
As a result, the Court declared the notice of withdrawal invalid. Furthermore, the Minister of International Relations and Cooperation, the Minister of Justice and Constitutional Development, and the President, were ordered to revoke the notice.
The case of Earthlife Africa – Johannesburg & Another v The Minister of Energy & Others (19529/2015)  ZAWCHC 50 (26 April 2017) concerned a challenge to various steps taken by the Government concerning its decision to procure nuclear energy. The steps challenged were, firstly, the determinations made by the Minister of Energy in 2013 and 2016 in terms of section 34 of the Electricity Regulations Act 4 of 2006, concurred in by the National Energy Regulator of South Africa (“NERSA”) and, secondly, the tabling by the Minister during June 2015 before Parliament of three intergovernmental agreements, concluded with the United States of America in August 1995, the Republic of Korea in October 2010, and the Russian Federation in September 2014.
Earthlife challenged the above decisions on various grounds, including that neither the Minister nor NERSA’s decisions were preceded by any public participation, that NERSA’s concurrence in the 2016 determination was predicated on a material error of law in that it believed it would be mala fide for NERSA not to concur with the Minister, and that the 2013 and 2016 determinations were mutually inconsistent.
The High Court in Cape Town held that the Minister’s actions in making the s 34 determinations, and NERSA’s concurrence therein, constituted administrative action in that they had far reaching consequences both for the public and those involved in electricity generation and furthermore had binding external legal effect. Accordingly, rational decision-making would have required public consultation and participation before NERSA took a decision to concur with the Minister. NERSA also had a duty to act in the public interest, and could not be said to have done so without first obtaining the public’s views or those of other affected parties, presumably those involved in energy regulation. Regarding NERSA’s concurrence with the 2016 determination, its view that it would be mala fide not to concur was predicated on a material error of law. In the Court’s view, these defects rendered the decisions unlawful and invalid.
Regarding the IGA’s, the Russian IGA had been tabled in Parliament in terms of section 231(3) of the Constitution, which is reserved for international agreements of an administrative or technical nature, and which do not require prior parliamentary approval in order to be binding. The Court held that the Russian IGA was clearly not merely of a technical or administrative nature, and so would have needed to be tabled in terms of section 231(2), which does require prior parliamentary approval in order to be binding. Accordingly, the Minister’s decision to table to Russian IGA in terms of section 231(3) was irrational. Regarding the Korean and American IGA’s, the inordinate delay in tabling either agreement was unreasonable and so contrary to section 231(3).
Accordingly, the Minister’s decision to table the three IGA’s, and both the 2013 and 2016 determinations, were declared unlawful and set aside.
The above cases concerned issues of immense importance to the governance of South Africa. However, it is not only such significant cases which matter to people living in South Africa and which require judicial scrutiny. The decisions of municipalities and government agencies increasingly affect the lives of those subject to those decisions. Where a person has reason to believe that such decision was taken unlawfully, that person may apply for the review and setting aside of that decision. Cases concerning judicial review often involve the decision to grant or refuse building plan approval, or to allow land to be used for a particular purpose. The decision to award a government tender is also subject to judicial review, and unsuccessful tenderers frequently challenge such decisions when it is clear that the tender was awarded unlawfully. Applications for licences to conduct a certain activity are another area where an aggrieved may apply for the review of an unlawful decision to grant or refuse a licence.
Where public actions or decisions appear to be unlawful, judicial review provides a remedy to an aggrieved party. As the above recent cases show, even where the decisions concerned are of an enormous magnitude and are taken by the most senior members of the national executive, the South African judiciary will not shy away from setting such decisions aside in the event that they are found to be unlawful.