Judicial review: An overview

judicial review
19 Jun 2024

Introduction

Judicial review serves as a critical mechanism to regulate administrative action, ensuring that public authorities act within their legal bounds. It allows the judiciary to examine and correct administrative decisions, ensuring accountability, fairness, and legality in the administrative process. This article provides a comprehensive overview of the procedural aspects and requirements involved in judicial review, drawing from the Promotion of Administrative Justice Act and relevant case law.

The foundations of judicial review

Judicial review is primarily governed by the Promotion of Administrative Justice Act (PAJA). To initiate a judicial review, a litigant must establish standing and identify specific grounds for review as set out in Section 6(2) of PAJA. Additionally, the litigant must adhere to procedural requirements specific to judicial review, which differ from ordinary civil procedure rules.

Procedural requirements: Exhausting internal remedies and timeframes

PAJA imposes two initial procedural hurdles before a review application can proceed: the duty to exhaust all internal remedies and adherence to prescribed timeframes.

Duty to exhaust internal remedies

Section 7(2) of PAJA stipulates that all internal remedies must be exhausted before a court can entertain a judicial review. However, this rule is not absolute. In exceptional circumstances where it is in the interest of justice, an applicant can bypass this requirement by seeking an exemption from the duty to exhaust internal remedies under section 7(2)(c).

Time to institute judicial proceedings

Section 7(1) of PAJA establishes a timeframe within which judicial review applications must be initiated, typically within 180 days and without unreasonable delay. The commencement of this period depends on the presence or absence of internal remedies.

If an internal remedy exists, the 180-day period starts after concluding all internal proceedings. In the absence of an internal remedy, the period commences either on the date the person becomes aware of the action and its reasons or when they should have reasonably become aware. Importantly, the 180-day period is not fixed and may be shorter depending on the circumstances, reflecting PAJA’s emphasis on timely initiation of review proceedings.

The importance of timeliness and reasonableness

PAJA retains the common-law rule against unreasonable delay, serving two primary purposes: preventing prejudice to the respondent and upholding the public interest in the finality of administrative decisions. Courts assess the reasonableness of delay based on factors such as the extent of prejudice to the respondent, the explanation for the delay, the nature of the decision, and the complexity of the case.

The court may condone unreasonable delays based on these considerations, emphasising the need to balance legality against finality and the interest of justice.

The rules applicable to judicial review proceedings

PAJA’s sections 7(3) and (4) address the rules of procedure for judicial review. While the Rules Board enacted rules for judicial review in 2009, these rules faced constitutional challenges and have not been enforced. Consequently, judicial review proceedings are currently governed by the High Court Rules, specifically Rule 53.

Rule 53: The High Court Rules on judicial review

Rule 53 predates PAJA and serves as the primary procedural guideline for judicial review. It incorporates general court application procedures but introduces additional steps specific to judicial review.

Upon filing a notice of motion and founding affidavit, the administrative decision-maker must provide the ‘record of proceedings’, including the documents considered when making the decision and any reasons provided. This record enables the applicant to assess the decision-making process and grounds for review.

After reviewing the record, the applicant may amend the notice of motion and file a supplementary affidavit. Only then do respondents file their answering affidavits. This process ensures transparency and allows parties to present informed arguments based on the available information.

Conclusion

Judicial review plays a crucial role in maintaining the rule of law and ensuring accountability in administrative actions. PAJA provides the statutory framework for judicial review, setting out specific procedural requirements aimed at promoting fairness, timeliness, and transparency.

While the 2009 rules for judicial review sought to streamline the process, they faced constitutional challenges for limiting transparency and access to information. As a result, judicial review proceedings continue to be governed by Rule 53 of the High Court rules, emphasising the importance of transparency, access to information, and procedural fairness in the judicial review process.

By adhering to these procedural requirements and principles, judicial review serves as an essential safeguard against arbitrary or unlawful administrative actions, upholding the principles of administrative justice and the rule of law.

Article sourced from SchoemanLaw Inc.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Johan de Lange

Johan De Lange graduated with a Bachelor of Laws (LLB) from Stellenbosch University in 2020. In 2023, he commenced his professional career by joining SchoemanLaw Incorporated as a Professional Assistant.... Read more about Johan de Lange

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