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310 Chapter 13
same institutional and democratic competence reasons. 90 Schutz JA went
on to state that ‘[j]udicial deference does not imply judicial timidity or an
unreadiness to perform the judicial function. It simply manifests the
recognition that the law itself places certain administrative actions in the
hands of the executive, not the judiciary’. 91
This is particularly important, he held, where the subject matter under
review is ‘very technical or of a kind in which a Court has no particular
proficiency’. 92
Schutz’s emphasis on institutional competence was picked up in two High
Court decisions. In Foodcorp, the Cape High Court, following both Logbro
Properties and Phambili Fisheries, acknowledged the importance of ‘due
judicial deference’ to ‘policy-laden and polycentric’ administrative action which
‘entails a degree of specialist knowledge and expertise that very few, if any,
judges may be expected to have’. 93 In South African Jewish Board of Deputies, 94
the Witwatersrand Local Division, also referring to the judgment of Schutz JA
in Phambili Fisheries, held that where a judicial review matter was not one which
was ‘very technical or of a kind in which a court has no particular proficiency’,
judicial deference was not appropriate at all. 95
This rather narrow approach to institutional competence in the High
Courts was later expanded by the Constitutional Court in Bato Star 96 (the
appeal against the Supreme Court of Appeal decision in Phambili Fisheries to
the Constitutional Court). In that decision, O’Regan J repeated the passages
cited by Schutz JA on the deference to be adopted in the judicial review of
administrative agencies. She went on to say, with reference to the ProLife
Alliance decision, 97 that ‘the need for courts to treat decision makers with
appropriate deference or respect flows not from judicial courtesy or
etiquette but from the fundamental constitutional principle of the separation
of powers itself’. 98 This reasoning reveals an appreciation for the limits of
constitutional competence, and the decision of Bato Star has since become
one of the leading decisions on the topic of deference, and has been cited
in a number of subsequent judgments. 99
90 Phambili (n 89 above) para 47.
91 Phambili (n 89 above) para 50.
92
Phambili (n 89 above) para 53.
93 Foodcorp (Pty) Ltd v Deputy Directory-General, Department of Environmental Affairs and
Tourism, Branch Marine and Coastal Management 2004 5 SA 91 (C) para 68.
94
South African Jewish Board of Deputies v Sutherland NO 2004 4 SA 368 (W).
95 Sutherland (n 94 above) para 38, citing Phambil Fisheries (n 89 above) para 53.
96 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC).
97
ProLife Alliance (n 31 above) paras 75 - 76.
98 Bato Star Fishing (n 96 above) para 46.
99
See, eg, Associated Institutions Pension Fund v Van Zyl 2005 2 SA 302 (SCA) para 39, where
the Court held that deference was appropriate, in the sense used in Bato Star, to the
methodology of an expert actuary; Foodcorp (Pty) Ltd v Deputy Director-General, Department of
Environmental Affairs and Tourism: Branch Marine and Coastal Management 2006 2 SA 191
(SCA) para 12; Foodcorp (Pty) Ltd v Deputy Director-General, Department of Environmental
Affairs and Tourism: Branch Marine and Coastal Management 2006 2 SA 199 (C) 210;