LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

84 Chapter 3
The subsection must be construed consistently with the Constitution and
in particular section 33 which requires administrative action to be
‘reasonable’. Section 6(2)(h) should then be understood to require a
simple test, namely, that an administrative decision will be reviewable if
… it is one that a reasonable decision-maker could not reach.
What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair
procedure will depend on the circumstances of each case. Factors
relevant to determining whether a decision is reasonable or not will
include the nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature of the competing interests
involved and the impact of the decision on the lives and well-being of
those affected. Although the review functions of the court now have a
substantive as well as a procedural ingredient, the distinction between
appeals and reviews continues to be significant. The court should take
care not to usurp the functions of administrative agencies. Its task is to
ensure that the decisions taken by administrative agencies fall within
the bounds of reasonableness as required by the Constitution. 143
‘Reasonableness’ in socio-economic rights litigation has not been used
in the above manner. In socio-economic rights litigation, the court
requires that there be a reasonable programme, which must be
comprehensive, well co-ordinated and capable of providing for short,
medium and long-term needs simultaneously. It must be reasonably
conceived as well as implemented and made known appropriately. 144
The Constitutional Court’s finding in the Grootboom case that the
state’s housing programme was unreasonable was not based on any
finding that the programme could not have been adopted by any
reasonable authority. If this had been the test, the programme would
have passed with flying colours. 145 Instead, the Court found the
housing programme unreasonable because of its failure to make
provision for short term needs. 146
In another twist, PAJA has introduced, among others, a test of
rational connectivity by empowering the courts to review
administrative action which is not rationally connected to the purpose
for which it was taken. 147 According to Hoexter, one of the leading
South African administrative law scholars, a reasonable decision is
rational in the sense that it is supported by the evidence and
information before the decision maker and the reasons given for it;
and in the sense that it is rationally connected to its purpose, or
objectively capable of furthering that purpose. In this regard, one
must add, however, that a reasonable decision also reveals
143
Paras 44-45 (footnotes omitted).
144 See sec 3.2.1 above.
145 Wesson (n 50 above) 291.
146
Para 66.
147 Sec 6(2)(f)(i).