LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 83
determine whether the decision is of a kind that a reasonable
authority could not have taken. 135
The Wednesbury case principles have become part of South
African administrative law and are endorsed by a string of judicial
decisions. For instance, in Union Government v Union Steel
Corporation, 136 it was held that no judgment has accepted that
unreasonableness is a sufficient ground for interference with an
administrative decision. Interference is only necessary if the
unreasonableness is so gross that something else is inferred from it. 137
The provisions of the 1996 Constitution have not altered these
principles in any fundamental manner. What is new, however, is that
the right to just administrative action is no longer merely a common
law right. 138 Instead, it is now a constitutional guarantee that
‘[e]veryone has the right to administrative action that is lawful,
reasonable and procedurally fair’. 139 This section is implemented by
the Promotion of Administrative Justice Act (PAJA), 140 which retains
unreasonableness as a ground of judicial review in the same way as
used in the Wednesbury case. The Act provides that a court may
review administrative action which ‘is so unreasonable that no
reasonable person could have … carried out the function [in that
manner]’. 141 It should be noted that in Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and Others, 142 the
Constitutional Court, when interpreting section 6(2(h) of PAJA,
advanced beyond the Wednesbury principle. The Court held that:
135 683 E-G. Of course, one finds it hard to see a clear distinction between
determining whether a decision is reasonable, on the one hand, and whether it is
a decision that could not have been taken by a reasonable authority, on the other
hand. Both appear to lead to an inquiry as to whether the decision is reasonable.
The principles in the Wednesbury case have been followed by English courts in
subsequent cases and have informed the approach to judicial review on the
ground of unreasonableness; though in some cases, the courts have used
irrationality in the place of unreasonableness. However, within English law, these
two principles mean the same. See Wheeler v Leicester City Council [1985] AC
1054.
136
1928 AD 220.
137 236. See also Shidiack v Union Government 1912 AD 746, and National Transport
Commission v Chetty’s Motor Transport (Pty) Ltd 1972 3 SA 726 (A). For a
discussion of these cases, see C Hoexter & R Lyster The new constitutional and
administrative law (2002) Juta Law 171.
138 See President of the RSA and Others v SARFU and Others 1999 10 BCLR 1059 (CC)
para 135.
139 Sec 33. The Constitutional Court in Pharmaceutical Manufacturers of SA; In Re:
Ex parte Application of the President of the Republic of South Africa 2000 3 BCLR
241 (CC) held that, though the common law principles of judicial review in
administrative law are still relevant to the development of public law, judicial
review is now subject to the prescriptions of the Constitution. The Court said that
the principles of common law have been subsumed by the Constitution and are
applicable as long as they are consistent with the Constitution (paras 45 & 51).
140 Act 3 of 2000.
141
Sec 6(2)(h).
142 2004 7 BCLR 687 (CC).