South African Journal on Human Rights

ISSN: 0258-7203 (Print) 1996-2126 (Online) Journal homepage: https://www.tandfonline.com/loi/rjhr20

The Justifications for Judicial Review

Andrew Breitenbach (Student)

To cite this article: Andrew Breitenbach (Student) (1992) The Justifications for Judicial Review,
South African Journal on Human Rights, 8:4, 512-535, DOI: 10.1080/02587203.1992.11827878

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THE JUSTIFICATIONS FOR
JUDICIAL REVIEW*

ANDREW BREITENBACH**

INTRODUCTION

There is growing disagreement on the proper function of the superior

courts in administrative law: some claim that they must protect the
individual from a vast and powerful bureaucracy, or that the judiciary
should encourage popular participation in decision-making processes;
others would ensure that the public administration effectively performs
the tasks which have been assigned to it.l Until recently, lawyers were
slow to relate public-law disputes to these broader controversies. 2
In keeping with this, the judiciary itself has seldom considered the
justifications for judicial review. The focal point of most judgments in this
area is a survey of the recognised 'heads' of review, to determine which
may best be applied to the empowering provision or to the facts of the
case. In the process, it is assumed that if the 'right' rules are applied, the
'correct' outcome is 'guaranteed'; judicial review is viewed as a
self-executing 'technology'. But the reports abound with rules which
clash head-on, 3 and with conflicting decisions which cannot be reconciled
by attributing the differences to peculiarities in their empowering

* I would like to thank Paul Craig and Thomas Plewman for their comments on earlier drafts of this
article, and the staff of the Legal Resources Centre, Grahamstown, for the use of their computing
facilities. I am grateful to the Rhodes Trust and the Human Sciences Research Council for funding
my study at Oxford.
** BCom LLB (Stell) LLM (Cantab), Student, Magdalen College. Oxford.
1 P P Craig Administrative Law 2 ed (1989) 3.
2 See L J Boulle 'Elements in the Crucible: Developing Public Law for the Future' (1987) 104 SAU
104.
3 For instance in R v Secretary of State for the Home Department, ex parte Asif Mahmood Kahn [1984]
I WLR 1337 (CA) at 1344C Parker LJ held that the doctrine of legitimate expectations prevented a
Minister from resiling from an undertaking on government policy without 'affording interested
persons a hearing and then only if the overriding public interest demands it'. Critics of this approach,
like G Ganz 'Legitimate Expectation' in Carol Harlow (ed) Public Law and Politics (1986) 145. have
argued that this version of the doctrine of legitimate expectations cannot be reconciled with the
no-fettering rule; she claims (at 154) that if'Parker LJ's judgment is right. government policies would
be set in concrete'.

512
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 513

provisions. 4 All too often, a basic element of the enquiry appears to be

missing.
Several authors have commented on the formalism of judicial review.
Some have used their criticisms to bolster a call for an increase in its
intensity or breadth. For instance, Professor Wiechers suggests that the
'recognition of reasonableness as an independent requirement for
validity is an essential prerequisite if the entire system of judicial control
of administrative acts is to be rescued from impoverishment and
legalism' .5 Professor Mureinik claims that to attach consequences to
normative categories such as 'jurisdictional facts', 'errors of law' or
'unreasonableness', is to commit the error of 'conceptualism'. He asserts
that inquiries in administrative law should start with a consideration of the
form of the empowering provision and the constraints which it imposes. 6
This approach would mean that 'all discretions are reviewable for
unreasonableness, simpliciter' .7 The distinction between review and
appeal would be sustained by the character of reasonableness: in public
law reasonableness is not 'the apotheosis of rectitude' (as in private law),
but 'the outer bands of the spectrum of decisions that are tolerable even
where wrong' .s
But a call for the recognition of a substantive principle like reasonable-
ness requires a more detailed explanation of the concept than that which
Wiechers or even Mureinik provide. Whether or not a decision is
reasonable is often not self-evident.9 As the English commentator, Paul
Craig, explains:
'Those who advocate the explicit recognition of substantive principles must indicate what
those principles actually are ... This is only plausible if one addresses the constitutional
rights and principles which one believes are, or should be, protected within that society.
It is, therefore, impossible to determine whether an agency decision imposes an
unreasonable or disproportionate burden on an individual or group without some prior
vision of the normative importance of their interests, and without some view of what
trade-offs between interests are to be tolerated. ' 10

4 A good example is Corbett J's suggestion in South African Defence and Aid Fund v Minister ofJustice
1967 (1) SA 31 (C) at 34H-35D that a 'proper construction of the legislation concerned' reveals a
distinction between states of affairs which, objectively speaking, must exist before a statutory power
can be exercised, and those which must be thought to exist by the repository of the power before it can
be exercised. It is often difficult to explain why a case should fall in one of these categories rather than
the other. Compare, for example, Raad van Mynvakbonde v Minister van Mannekrag 1983 (4) SA 29
(T) at 33D-34H, and Pinetown Town Council v President of the Industrial Court 1984 (3) SA 173 (N)
at 178G-1791.
5 Marinus Wiechers Administrative Law (1985) 249.
6 Etienne Mureinik 'Administrative Law in South Africa' (1986) 103 SAU 615 at 627.
7 Op cit 637.
8 Op cit 631.
9 Lawrence Baxter Administrative Law (1984) 482-9 posits a distinction between 'dialectical' and
'substantive' reasonableness. He also claims (at 489) that the courts should focus on 'unreasonable-
ness' rather than 'reasonableness', because 'the negative is more easily identified than the positive'.
10 p p Craig Public Law and Democracy in the United Kingdom and the United States of America (1990)
514 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

For this reason, Craig continues, we cannot renounce general inquiry

in favour of 'solving' particular cases or types of disputes. The 'resolution'
of any dispute of an administrative law nature depends on the
identification and interpretation of the rights in issue. Again, this
presupposes a background theory which serves to justify the existence of
those rights and the more particular meanings ascribed to them. 11 It is
submitted that this is the basic element which so often appears to be
missing in the case law. What is needed is a 'theory which provides the
base for judicial review and practice which translates that theory into firm
standards of adjudication' . 12
It is not the object of this article to provide a comprehensive
justification for judicial review, with a thorough critique of its claims and
controversies. Rather, the aim is to evaluate the South African
jurisprudence to determine whether an immanent set of justificatory
principles can be identified. The analysis will be structured as follows.
The first section will cover the vicissitudes of the doctrine of ultra vires as
a conceptual rationale for judicial intervention. There will be an outline
of the historical development of the doctrine in England and South
Africa, and an explanation of the debate in this country between the
exponents of its 'narrow' and 'wide' variants. An attempt will then be
made to assess its cogency as an explanation of the courts' functions on
review. It will be argued that it is patently self-contradictory, and bears
little 'empirical' relevance to the South African polity. It will also be
shown that, by casting the courts solely as the watchdogs of legislative
intent, it distorts their functions on review. As a result, the doctrine 'fails
to penetrate the judicial reasoning whereby general heads of review are
applied to specific situations' .13
In the second section, the reasoning of the Appellate Division in
several disputes on the nature and scope of the ultra vires doctrine will be
considered. The emphasis will fall on the judgment of Hefer JA in
Staatspresident v United Democratic Front ('the UDF case'). 14 In
particular, his conclusion that there is no need for South African courts
to justify their practice of reviewing administrative behaviour will be
scrutinised. It will be argued that he was more concerned to rejuvenate
the possibilities for an ouster of the courts' review powers, than to grapple

2-3. Similarly, the force of process-oriented claims depends on their translation into specific
procedural requirements. For an example of this approach to 'process rights' see D J Galligan
Discretionary Powers: A Legal Study of Official Discretion (1986) 326-82.
11 Craig op cit note 10 at 9. Mureinik's conception of statutory interpretation echoes this approach. He
suggests that judges should elicit the 'construction most consonant with the morality which affords the
best explanation of the legal system' (Mureinik op cit note 6 at 623). ·
12 D J Galligan 'Judicial Review and the Textbook Writers' (1982) 2 Oxford Journal of Legal Studies 257
at 263.
13 Op cit 266.
14 1988 (4) SA 830 (A).
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 515

with the controversies underlying them. In so doing, he squandered a

unique opportunity to reflect on the potential for developing 'a rational
and comprehensive system of administrative law on the foundation of the
concept of ultra vires', 15 or, if necessary, to reappraise the traditional
methodology entirely.
The final section aims to provide 'hard evidence' of the consequences
of the neglect by the courts of the rationale of judicial review. The general
view of the approach to ouster clauses which was fashioned in the UDF
case is that the courts are now precluded from investigating compliance
with the 'tacit directions of the legislature' . 16 However, in Administrator,
Transvaal v Traub 17 Corbett CJ seemingly abandoned this approach and,
from a practical point of view, restored the status quo: once again, proof
of any established ground of review will emasculate an ouster clause. The
result of the Traub case is indistinguishable from that of the landmark
judgment in Minister of Law and Order v Hurley, 18 which was delivered
barely four years earlier. However, as will emerge from the analysis of the
courts' convoluted reasoning, it is imperative that they grapple with the
conceptual basis of judicial review in order to avoid further vacillation on
vital issues like ouster clauses.

ULTRA VIRES

England
The doctrine of ultra vires is a central element of the 'traditional model'
of administrative law. 191ts enduring feature is the censure of administra-
tive behaviour which is deemed to fall outside the sphere, sometimes
termed 'jurisdiction', in which more than one alternative course of action
is available, and in which the repository of administrative power is free to
err. The limits of the power to bind even though some error has occurred
are, according to the orthodoxy, defined by legal standards- vires.
Failure to conform to these standards renders the act or omission ultra
vires and results in the loss of immunity from the courts' superintendence.

15 Lord Diplock in In re Racal Communications Ltd [1981] AC 374 (HL) at 3820, referring toAnisminic
Ltd v Foreign Compensation Commission [1969]2 AC 147 (HL).
16 L C Steyn Die Uitleg van Wette 5 ed (1981). SeeN Haysom and C Plasket 'The War Against Law:
Judicial Activism and the Appellate Division' (1988) 4 SAJHR 303; Laurence Boulle, Bede Harris
and Cora Hoexter Constitutional and Administrative Law: Basic Principles (1989) 355--6; J Grogan
'The Appellate Division and the Emergency: Another Step Backward' (1989) 106 SAU 14; M L
Mathews 'Vandalizing the Ultra Vires Doctrine' (1989) 5 SAJHR 481; and E Mureinik 'Pursuing
Principle: The Appellate Division under the State of Emergency' (1989) 5 SAJHR 60 at 69-72.
17 1989 (4) SA 731 (A).
18 1986 (3) SA 568 (A) at 584F-I.
19 See generally Craig op cit note 1 at 4-15.
516 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

Present-day judicial review emanates from two historical sources: the

prerogative writs and actions for damages. 20 Its early manifestations were
intricate and often parochial. They will not be considered here. By the
beginning of the seventeenth century, though, the court of the King's
Bench assumed that it acted on behalf of the monarch in the exercise of
his prerogative of justice. At the time it was even suggested that 'the King
had made an irrevocable delegation of his powers of judicature' .21 The
cogency of this explanation was diminished by a clash over the powers of
the Sewer Commissioners. These commissions had been appointed by the
King from 1250 onwards to undertake and maintain sea-walls and
drainage projects. In 1615, contrary to established custom and the
judgment of the King's Bench in Rooke's Case,ZZ the Commissioners of
Northampton decided to burden a whole town with the allocation and
collection of a levy for a drainage project, rather than apportion the cost
between individual properties. The court fined the Commissioners and
committed them to prison for having acted contrary to its judgment in
Rooke's Case. A crisis ensued, which culminated in an order of the Privy
Council forbidding judicial interference in the enterprises of the
Commissioners. The result was a brief period of intense Conciliar activity
by a committee of the Privy Council, the Court of Star Chamber. This
might have resulted in a system of administrative law independent of the
common law, had it not been cut short by the intervention of an ascendant
parliament.
The Star Chamber was abolished by the legislature in 1641. It was one
of the first casualties of the struggle between property (which was
represented in parliament) and public power (the Crown). Following its
demise, the King's Bench established itself as the pre-eminent overseer of
'inferior courts' and administrative tribunals. 23 It justified this role by
asserting that it was duty bound to provide remedies to those who had
been illegally or unjustly treated.24 This enterprise often brought the
courts into conflict with the legislature, though, in deference to its
political supremacy, there were no attempts to review Acts of Parliament
after the English Revolution of 1688. 25
In the nineteenth century, however, there was a growing tendency in
judgments expressly to relate the exercise of judicial power in this area to

20 Louis L Jaffe and Edith G Henderson 'Judicial Review and the Rule of Law: Historical Origins'
(1956) 72 LQR 345 at 348.
21 Op cit 361. This doctrine contained the seeds of the notion of the supremacy of the common law,
which is now characteristic of English administrative law.
22 (1599) 5 Co Rep 99a.
23 SA de Smith 'Wrongs and Remedies in Administrative Law' (1952) 15 Modern Law Review 189 at
191.
24 Craig op cit note 10 at 22.
25 Ibid. See also S A de Smith Judicial Review of Administrative Action 3 ed (1973) 321 on the
introduction of protective clauses in late seventeenth century legislation.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 517

the will ofthe legislature, partially because of an increase in the legitimacy

of parliament after the extension of the suffrage in 1867. This trend is
evident in the controversy over the courts' capacity to determine for
themselves the meaning of conditions precedent to the exercise of
administrative power. 26 The publication of Dicey's Introduction to the
Study of the Constitution in 1885 provided a conceptual basis for this
approach. A central aspect of Dicey's account is the idea that in a
representative democracy all public power is, and should be, subject to
legitimation and oversight by a duly elected parliament; Craig styles this
'parliamentary monopoly'. 27 Dicey accepted that parliament did delegate
power to the administration, but assumed that 'the Commons could and
did control the executive' .28 The role of reviewing courts was to
supplement parliamentary control; they were to ensure that the reposi-
tories of delegated power did not assume authority which was not
specified by parliament. The view that, in review, the courts are working
within the doctrine of sovereignty, is still prevalent in England. For
instance, in 1983 Lord Donaldson MR declared:
'It is the essence of parliamentary democracy that those to whom powers are given by
Parliament shall be free to exercise those powers, subject to constitutional protest and
criticism and parliamentary or other democratic control. But any attempt by ministers or
local authorities to usurp powers which they have not got or to exercise powers in a way
which is unauthorised by parliament is quite a different matter. As Sir Winston Churchill
was wont to say, "that is something up with which we will not put". If asked to do so, it
is then the role of the courts to prevent this happening. ' 2"

South Africa
According to Professor Baxter the doctrine of ultra vires was received
into the Cape in the early nineteenth century. He claims that:
'The ultra vires doctrine was adopted at the Cape almost as soon as the Supreme Court
was established (in 1827). This is not surprising, because the logic behind the doctrine
provides an inherent rationale for judicial review: no statutory authority is needed ...
The self-justification of the ultra vires doctrine is that its application consists of nothing
other than an application of the law itself, and the law of Parliament to boot. ' 30

This passage is consistent with his view that the doctrine is the
'justificatory concept which legitimates judicial review',3 1 rather than a
'head' of review- the essence of the 'wide' conception of ultra vires. As
he explains:

26 Sec Craig op cit note 10 at 23-4.

27 Craig op cit note I at 4.
28 Craig op cit note 10 at 20.
29 R v Boundary Commissioners, ex parte Foot [1983]1 QB 600 at 616A-B. Sec also Sir William Wade
Administrative Law 6 ed ( 1988) 39-48.
30 Baxter op cit note 9 at 303.
31 Op cit 300.
518 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

'[T]he ultra vires doctrine is not merely a "ground" of review: rather, it is the reason why
the grounds of review constitute causes of action at all and why they justify the award of
a remedy. Whether these grounds are wide or narrow is not a function of the ultra vires
doctrine, for that is only the constitutional licence for judicial review. It is instead a
function of the meaning attributed to the enabling legislation. ' 32

Professor Wiechers is the foremost exponent of the alternative; a

narrow conception of the doctrine. In general terms, he favours the
principle of legality as the legitimating base of administrative law, 33 and
distinguishes two elements of this notion in the field of judicial review: the
narrow conception of ultra vires, which 'means no more than the principle
that the administrative act must fit into the framework of the epowering
act's provision and prescripts'; and 'those rules and prescripts of the
common law which postulate the intention of the ideal legislature (unless
. . . they have been excluded by the empowering statute expressly or by
necessary implication)'. 34
A similar view is taken by Mr Justice LA Rose Innes in his Judicial
Review of Administrative Tribunals in South Africa. 35 He distinguishes
review for ultra vires (unauthorised by the enabling statute), from review
for violation of the common law (which embodies the precepts of natural
justice):
'The obligation to observe the procedures of a fair hearing does not derive from any
statute, but from the common law, and a breach of that obligation does not render the
proceedings ultra vires in the sense of being unauthorised by statute, but merely as being
irregular so as to afford an affected person grounds for review. . . ' 36

Baxter persuasively reconciles these seemingly divergent points of

view. He claims that the proponents of the second view constructed a
two-tier justification to allay their 'fear that a narrow conception of ultra
vires, deriving from a literalist construction of the words of the enabling
statute, will deprive the litigant of those causes of action based upon
presumptions (as to how the statutory power may be used) which are most
judicial in origin. Thus it has been argued that those grounds operate
independently of the ultra vires doctrine. ' 37 Baxter's analysis is supported
by a key concession to ultra vires which Wiechers makes shortly below the
two passages quoted above:
'[I]f the ultra vires doctrine means that an administrative act must be performed within
the bounds of a general legal authorisation -that is, within the framework of both the
empowering statute and the common law- there can be no quarrel, in theory, with the

32 Op cit 312.
33 See Wiechers op cit note 5 at 174-9.
34 At 176.
35 (1%3).
36 At 93--4.
37 Baxter op cit note 9 at 311.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 519

adoption of the ultra vires doctrine as the general foundation of legally valid
administrative action. '3s

A close reading of Rose Innes reveals that he, too, is anxious to avoid
the restrictive effect of a narrow conception of ultra vires operating as 'the
entire scope of judicial review'. 39 1t is submitted, therefore, that upon the
publication of Baxter's Administrative Law in 1984, both these authors'
views were accommodated within the wide conception of the doctrine.
Accordingly, if we disregard the growing tide of criticism levelled against
the doctrine, as well as the changes wrought by several recent Appellate
Division judgments, the well-known dictum of Milne AJ in Estate Geekie
v Union Governmenf4° could be claimed to accurately reflect the law:
'In considering whether the proceedings of any tribunal should be set aside on the ground
of illegality or irregularity, the question appears 'llways to resolve itself into whether the
tribunal acted ultra vires or not. ' 41

Challenges to Ultra Vires

Although Dicey's views on constitutional and administrative law have
been hotly contested, it is not possible here to give an appraisal of the rich
literature that his thesis has inspired. 42 However, three of its most obvious
deficiencies cannot be overlooked. The first and second are of general
application, whereas the third is peculiar to South Africa. Each will be
considered in turn.
Despite its enormous influence in administrative law, Dicey's rationale
for judicial review is self-evidently flawed. In essence, he charges the
courts with the function of limiting the attenuation of parliamentary
monopoly. Yet, it is logically impossible for parliament to simultaneously
wield all public power and require assistance from the courts to limit the
extent to which it does not do so. The need for judicial review- and not
solely ministerial responsibility to parliament- is therefore proof of the
falsity of the assumption of parliamentary monopoly which purports to
justify review itself. As a result, the courts themselves seem to enjoy
significant power under Diceyan constitutionalism; as one commentator
has put it, '[i)n checking bureacratic power, the courts have extended
their own constitutional power'. 43

38 Wicchers op cit note 5 at 176-7.

39 Rose Innes op cit note 35 at 93.
40 1948 (2) SA 494 (N).
41 At 502.
42 The reader is referred to the excellent discussions of the genealogy and deficiencies of the doctrine
of ultra vires in Craig op cit note 10 at 19-29 and 47-51. In addition to the material which he considers,
the 'suggestions for further reading' in Robert Baldwin & Christopher McCrudden Regulation and
Public Law (1987) 344-7 are recommended.
43 A C Hutchinson 'The Rise and Ruse of Administrative Law and Scholarship' (1985) 48 Modern Law
Review 293 at 314.
520 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

The second difficulty with the ultra vires doctrine is that it is a

conclusion rather than an analytical tool with which to unravel the
complexities of modern review. It is clear from the discussion above of the
views of Baxter, Wiechers and Rose Innes that, in review, the courts
perform two (superficially) distinct tasks. One is to settle disputes about
the scope of authority claimed by repositories of public power. The role
of the courts here is relatively uncontroversial: they must provide an
authoritative interpretation of the empowerment of administrative
authority, and then determine whether the formal (non-discretionary)
conditions precedent to the exercise of that power were satisfied. If the
authority has made an error, it will be considered to have exceeded its
powers in the 'narrow' sense of the ultra vires doctrine. 44 The second task
of the courts is, as explained by Professor Galligan:
'[T)o maintain principles of good administration by public authorities in making
decisions. Broadly speaking these principles are of two kinds: those requiring certain
procedures, eg natural justice, and those that place constraints on the reasoning process
whereby officials reach decisions, eg the no-fettering rule, the no-evidence rule,
irrelevant considerations, improper motives, unreasonableness. These principles are
concerned with what happens within the limits and only indirectly with the limits
themselves. ' 45

Despite this, as is well known, the advocates of the traditional model

claim that functionaries do act ultra vires if, in the course of doing or
deciding to do something which is intra vires in the strict or narrow sense,
they violate these 'principles of good administration'. This wider
interpretation of the doctrine rests on the rebuttable presumption that
parliament did not intend that the repository concerned should act in
breach of these principles. Objections to this approach are usually
variations on the theme that it is 'a highly strained and artificial
framework for modern judicial review'. 46
Not surprisingly, many responses to this line of attack have been
fashioned over the years. One of the most imaginative has been deployed
by Professor Grogan. He concedes that this presumption has resulted in
a set of 'judge-made rules', but claims that by now they are so well
established that parliament legislates, or at least should be presumed to
legislate, with full knowledge of them. In other words, whatever the legal
status of the principles of good administration may have been at their
inception, they now comprise such a well entrenched body of law that, in
the absence of a contrary indication in the statute, the courts are entitled
to assume that parliament intended them to apply.47

44 Anisminic Lid v Foreign Compensation Commission supra note 15 at 171B per Lord Reid. Sec G L
Peiris 'Jurisdictional Review and Judicial Policy: The Evolving Mosaic' (1987) 103 LQR 66 for an
analysis of this aspect of the ultra vires rule.
45 Galligan op cit note 12 at 261.
46 Boulle et al op cit note 16 at 262.
47 See Grogan op cit note 16 at 21 and the works cited there.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 521

Another response might be that to characterise grounds of review like

reasonableness, relevancy, and propriety of purpose as 'principles of
good administration' without more, is to undervalue the extent to which
they depend on the interpretation and application of the statute
concerned. Discussions of these and other substantive principles invari-
ably assume the form of an analysis of an empowering provision within
the context of the statute as a whole. 48 But what of procedural
requirements, such as the rules of natural justice? It is often difficult, if
not impossible, to link them to the statutory regime. 49 It is possible,
therefore, that the class of wholly extra-statutory 'principles of good
administration' may be more narrowly defined than Galligan suggests.
Rearguard actions of this sort notwithstanding, few administrative
lawyers nowadays attempt to anchor judicial intervention to the intention
of parliament. Notable exceptions include Professor Wade, 50 and, as
explained above, Professor Baxter. 51 Most, including Professor J M
Evans, the author of the fourth edition of De Smith's Judicial Review of
Administrative Action, 52 recognise that the role ofthe courts is altogether
more complex. Few, however, have attempted to construct a theoretical
basis for administrative law. Craig's Administrative Law 53 is the only
standard text which offers an alternative framework for judicial review.
One of the reasons for the move away from the ultra vires doctrine in
England is its inability to explain why the exercise of prerogative powers
are now reviewable for non-compliance with the rules of natural justice.
The reader will recall that, at worst, the 'principles of good administra-
tion' can be whittled down to values such as these, which require
compliance with certain procedures before a decision is taken. The
pivotal case was Council of Civil Service Unions v Minister for the Civil
Service5 4 where it was decided that (despite its origin in the prerogative)
an exercise of the power to control the civil service would have been
reviewable for breach of the audi alteram partem rule, were it not for
considerations of national security. This introduced the notion of
non-justiciability, 55 with a consequent shift of emphasis from the source

48 See Boulle et al op cit note 16 at 357.

49 See Patrick Elias 'Legitimate Expectations and Judicial Review' in J LJowell and D Oliver (eds) New
Directions in Judicial Review (1988) 37 at 44-5.
50 Op cit note 29.
51 Op cit note 9.
52 (1980).
53 Op cit note 1.
54 (1985] AC 374 (HL).
55 Non-justiciability is an amalgam of ideas. First, it refers to the notion that as courts are
non-representative, they should not pronounce on the reasonableness or fairness of matters of 'high
policy'. Secondly, some matters, usually because they concern a large number of possible
configurations of interests and interactions between them, are analytically unsuited to resolution by
an ali-or-nothing dispute between two interests. Thirdly, it could mean that court procedures are not
suitable for deciding issues which require on-going administrative involvement. Finally, non-
522 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

of power to its nature. The difficulty which this decision poses for the ultra
vires doctrine is that procedural constraints on the exercise of prerogative
powers cannot be justified by referring to the implied conditions upon
which they were delegated. 56
Prerogative powers comprise 'the gradually diminishing residuum of
customary authority, privilege and immunity, recognised at common law
as belonging to the Crown, and the Crown alone' .57 There is no question
of legislative intention. As such, they are immutable, save that they may
be restricted by statute or atrophied by disuse. Both their extent and the
preconditions for their valid exercise, including any requirement that a
hearing be given, must be determined through historical enquiry. It is
therefore impossible to argue that legislative (or even ministerial)
acquiescence in the imposition of procedural requirements for the valid
exercise of statutory powers has resulted in the implied incorporation of
such requirements into the prerogatives. On the contrary, prior to the
Council of Civil Service Unions case the manner of exercise of prerogative
powers was repeatedly said not to be reviewable. 5s
As yet, no reported judgment in South Africa has endorsed a broader
base for the judicial review of the prerogative. As explained by Friedman
J (as he then was) in Boesak v Minister of Home Affairs, 59 a case
concerning the withdrawal of a passport, the position remains that 'the
Courts will enquire into questions such as whether the prerogative power
exists, whether the person purporting to exercise the prerogative power
has the legal right to do so, what is the extent of the power and whether
it has been exercised in the appropriate form'. In other words, the source
of the power is all-important. If statutory, it is reviewable along the lines
outlined above, if not, it is outside the purview of the law. Nevertheless,
in Boesak, Friedman J was prepared to assume, 'despite the South
African authority to the contrary, that the refusal or withdrawal of a
passport is subject to judicial review, in the sense referred to in the
Council of Civil Service Unions case'. 60
However, it would be wrong to assume that the ultra vires doctrine has
been 'saved' by the South African courts' reticence to review the exercise

justiciability may refer to the court"s lack of expertise in the subject-matter of the dispute.
56 See Dawn Oliver 'Is the Ultra Vires Rule the Basis of Judicial Review' (1987) Public Law 543 for a
discussion (at 545-7) along these lines. She also considers (at 548) the courts' willingness to review,
rather than quash without further ado, de facto (unauthorised) administrative functions which
include and derive from self-imposed guidelines. Examples of this sort of extra-statutory activity in
South Africa are given by Baxter op cit note 9 at 200-1.
57 Rodney Brazier (ed) De Smith and Brazier's Constitutional and Administrative Law 6 ed (1989) 24.
following Blackstone's Commentaries on the Law of England Vol 1 (1765) Stewart edition (1839)
251-2.
58 See the cases cited by Craig op cit note 1 at 291n73.
59 1987 (3) SA 665 (C) at 680D-E.
60 J D van der Vyver 'Passport, Privilege and Precedent" (1986) 103 SAU 356 comments (at 360) that
this 'might be seen as the first waivering step towards judicial reform'.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 523

of prerogative powers for fairness. That view ignores disquieting

questions about the form which the doctrine assumes when applied under
the orthodoxy to prerogative powers. Some commentators have argued
that it is anomalous that ultra vires should be the basis for the review of
prerogative powers, because, they assert, the doctrine was designed with
statutory powers in mind. 61 However, it is doubtful whether ultra vires has
always been concerned solely with statutory authority. Prior to the
constitutional changes of the seventeenth century, the Crown wielded
extensive prerogative powers over its subjects. Yet, 'as the Case of
Proclamations (1611) 6 2 made abundantly plain, their ambit is determin-
able by the courts'. 63 The better explanation is that today the courts are
concerned to prevent encroachments by holders of prerogative powers on
the province of the legislature: hence the concern with the extent of vires.
But this does not shed any light on the reasons for the courts' reticence to
review more intensively. Why do they limit themselves to the 'narrow'
sense of the ultra vires doctrine? Professor van der Vyver suggests that the
rationale for judicial deference to prerogative powers is nothing more
profound than:
'[A] concession to the British Crown that was rooted in the times when the royal
prerogatives were still personally exercised by the monarch - a consideration, one
should think, never applied in South Africa and which by now has in any event become
obsolete. ' 64

At this stage in the discussion, it appears that the doctrine of ultra vires,
though still relevant in judicial review, provides neither a complete
explanation of the courts' functions, nor a convincing justification of their
powers. This conclusion is cemented by two developments in the case law.
First, several recent judgments by the Appellate Division have sought to
relegate the doctrine to the status of a determinant of the scope of the
authority claimed by the repositories of public power. Their cogency will
be considered in the following section. Second, there are indications that,
in future, the courts would be willing to review the activities of certain
private bodies, irrespective of whether or not a case can be framed under
statute or private law.
Many of the earliest instances in which South African courts intervened
to restrain 'injustice' concerned non-statutory bodies such as churches. 65

61 See Boulle et al op cit note 16 at 262.

62 12 Co Rep 74.
63 Brazier op cit note 57 at 128.
64 Vander Vyver op cit note 60 at 361.
65 See for instance Kotze v Murray (1864) Searle 39 at 50, 60-1; Burgers v Murray (1865) I Roscoe 258
at 264, 276; and Van Graan v Hope Town Consistory of the Dutch Reformed Church (1886) 4 SC 131.
It appears from Van Graan (at 133) that s 9 of Ordinance 7 of 1843 restricted the courts' powers on
review to decisions affecting the 'civil and pecuniary rights of the applicant'; they were not
empowered to pronounce on the validity of 'spiritual censures', though De Villiers CJ (as he then was)
left open the question whether they could inquire into the fulfilment of any conditions precedent
thereto.
524 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

Of particular interest here, though, are those situations where, should the
court decide that the institution concerned is not amenable to judicial
review, its activies would, in effect, be 'above the law', because no case
could be framed in contract or delict.
A good example of the successful review of a non-statutory body,
despite the fact that the applicant could establish no contractual nexus
with it, is Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock
Exchange. 66 This case concerned the validity of a scheme for the
take-over of a company which was listed on the Johannesburg Stock
Exchange ('JSE'). The applicant was a non-voting, minority shareholder
of the target company. It sought judicial review of a decision by the
president and committee of the JSE not to require that an offer made by
one of the companies involved for the purchase of voting shares in the
target company, be extended to non-voting shareholders as well. Counsel
for the JSE contended that the court had no power to review decisions by
its office-bearers, as neither the rules of the JSE nor its listing rules and
requirements had any statutory foundation. 67 However, as Goldstone J
went to great lengths in his judgment to demonstrate, the JSE was
supported and sustained by a periphery of statutory power. It was
licensed in terms of the Stock Exchanges Control Act. 68 Its rules had to
be approved by the Registrar of Financial Institutions, and published in
the Government Gazette. 69 The Registrar could appeal to a board created
by the Act against a decision of the committee to grant an application for
the listing of securities. 70 The governing criterion in the Act for all of these
is the 'public interest'.7 1 Goldstone J continued:
'Strictly speaking, a stock exchange is not a statutory body. However, unlike companies
or commercial banks or building societies formed under their respective statutes, the
decisions of the committee of a stock exchange affect not only its members or persons in
contractual privity with it, but the general public and indeed the whole economy. It is for
that reason that the Act makes the public interest paramount. To regard the JSE as a
private institution would be to ignore commercial reality and would be to ignore the
provisions and intention of the Act itself. It would also be to ignore the very public interest
which the Legislature has sought to protect and safeguard in the Act.
I have come to the conclusion, therefore, that the review by the Supreme Court of the
decisions of the committee of a stock exchange which are ultra vires, ie not in accordance

66 1983 (3) SA 344 (W).

67 This had prompted Coetzee J, in the earlier case of Herbert Porter and Co Ltd v Johannesburg Stock
Exchange 1974 (4) SA 781 (W), to conclude at (791B-G) that the 'JSE is no more a creature of statute
than any bank or building society'. This judgment is criticised by Etienne Mureinik 'Discretion and
Government: The Stock Exchange Case' (1985) 102 SAU 434 at 440--1.
68 Section 4 of Act 7 of 1947. This Act has subsequently been repealed and replaced by the Stock
Exchanges Control Act 1 of 1985.
69 Section 8.
70 Section 10(1)(c).
71 Dawnlaan Beleggings {Edms) Bpk v Johannesburg Stock Exchange supra note 66 at 361-362G.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 525

with the intention of the Legislature, is sanctioned by the nature and purpose of the review
jurisdiction of this Court. Put another way, I am of the opinion that such a review
jurisdiction is a necessary implication and consequence of the provisions of the Act in
terms of which a stock exchange is licensed and its committee is established. '72

A crucial feature of this dictum, and indeed of the decision in

Dawnlaan, is that it recognises that the statutory nature of a body is not
a condition precedent to the reviewability of its functions. Goldstone J
sought to explain his intervention as an effectuation of the intention of the
legislature - an intention which he found to be 'necessarily implied' in
the Act. However, as is clear from the passage quoted above, his real
motivation was that the JSE performed important public functions. 73 The
decision to intervene in such circumstances undoubtedly represents an
extension of the limits of judicial control beyond demarcations of vires.
As stated above, there is a third difficulty with the ultra vires doctrine
which is peculiar to South Africa. At present, due to a lack of symmetry
between the structure of South African society and the doctrine's major
premise, it is by no means a persuasive justification of the review powers
of the South African courts. Dicey claimed that judicial review would
ensure that the sovereign will of parliament (which reflects the will of the
people) is not undermined by those who are entrusted by it with
administrative powers. South Africa has never been a democracy. No
morally appealing justification has ever been offered for the monopoly of
the omnipotent all-white parliament. As a result, the doctrine has always
rung hollow as a basis for the courts' supervisory jurisdiction. Judicial
review, particularly in cases involving black litigants, has, of necessity,
been justified on a more pragmatic basis. In the words of Professor
Boulle:
'Much of the public-law theory and doctrine which has developed in other jurisdictions
assumes forms of liberal or democratic welfare government in which the role of public law
and the courts is perceived as a function of the structure of the state system and its political
and administrative processes ... These assumptions, and therefore the public-law theory
and doctrine they imply, do not operate in the context of unrepresentative authoritarian
government. As South African public law is largely non-consensual and repressive ...
the courts' legitimate function must be determined on a more pragmatic basis ... The
courts are often the only institutions of remedy and relief, and seem the appropriate
bodies to take up the enormous democratic slack, so to speak, in the legislative and

72 At 364H-365B.
73 If the existence of a public function is to become an important 'trigger' of judicial review, criteria will
have to be formulated for determining whether a function is public or not. One relevant question
seems to be whether the government would exercise the powers concerned if the private body did not.
At first blush, this criterion has the advantage of 'objectivity': as Goldstone J did in the Dawnlaan
case, evidence of the government's attitude may be gleaned from the circumstances surrounding its
creation and exercise. See Mureinik op cit note 67 at 439 for a similar approach to reviewability. See
also R v Panel on Take-Overs and Mergers, ex parte Datafin pic [1987) OB 815 (CA). particularly the
discussions of these issues in the judgments of Sir John Donaldson MR (as he then was) at 834G-839C
and Lloyd LJ at 847 A-849A; and J Beatson' "Public" and "Private" in English Administrative Law'
(1987) 103 LQR 34 at 50-1, 63-4.
526 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

executive branches, even if the demands of political morality do not. .. always make for
good legal principle.'?•

However, until a fundamental reassessment of the basis of judicial

review is undertaken, the doctrine cannot be disregarded altogether.
There are two main reasons for this. On the one hand, the objection that
in South Africa the doctrine is little more than a grotesque parody of
Diceyan constitutionalism will resolve itself once a democratic society
begins to emerge. On the other, with the exception of several judgments
by the Appellate Division which will now be considered, the doctrine has
been entrenched by such a considerable jurisprudence that it is bound to
persist for some time to come.

THE UDFCASE
The controversial judgments delivered during 1988 for the majority of the
Appellate Division in Staatspresident v United Democratic Front7 5 evince
an extremely restrained approach to judicial review. They deal with
various matters which might establish the ultra vires character of an act
purporting to be the exercise of an administrative discretion. Only the
judgment of Hefer JA, which concerned the nature of challenges based
on the vagueness of delegated legislation, will be considered here. 76 It has
been trenchantly criticised, 77 and was also one of the subjects of a
powerful dissent by Van Heerden JA. 78 This aspect of the case turned on
the courts' power to review for vagueness certain elements of the
so-called emergency media regulations, which were promulgated by the
State President on 11 December 1986 in terms of s 3(1)(a) of the Public
Safety Act.79
The relevant findings of the majority may be summarised as follows:
vagueness is an independent ground upon which subordinate legislation

74 Boulle op cit note 2 at 105.

75 Supra note 14.
76 Vivier and GrosskopfJJA concurred in the judgment of Hefer JA. The other significant judgment for
the majority was delivered by Rabie ACJ, with whom He fer, Vivier and Grosskopf JJA concurred.
However, as explained by Grogan op cit note 16 at 20, some of the difficulties which beset the Acting
Chief Justice's reasoning on the nature of review for vagueness 'appear to have prompted the
concurring judgment of Hefer JA'. For this reason, and because Hefer JA offers the most
comprehensive rationalisation of the majority's findings, his judgment will be used as the basis for the
discussion which follows.
77 See Haysom and Plasket op cit note 16; Boulle eta! op cit note 16 at 261-4,297-8, 355-7; Grogan op
cit note 16; Mathews op cit note 16; and Mureinik op cit note 16.
78 Van Heerden JA concluded (at 860A-C) that should the reasoning of the majority stand, a person
accused of an offence embodied in vague delegated legislation, which is ostensibly the subject of an
ouster, could not be acquitted on that ground. Any acquittal founded on the vagueness of the criminal
provision would have to be premised on a power to decide on the validity of that legislation. See also
Metal and Allied Workers Union v State President of the Republic of South Africa 1986 (4) SA 358 (D)
at 367G-368A.
79 Act 3 of 1953. The regulations concerned were promulgated in Proc R224 GG 10541 (Reg Gaz 4027).
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 527

can be vitiated, and not an instance of ultra vires. 80 Vague executive

regulations, though 'imperfect or ineffective' 81 and normally liable to be
quashed, are intra vires the enabling statute. 82 Therefore, if, as in this
case, vague regulations are 'subject' to the operation of an ouster clause
which prohibits the review of regulations issued in terms of that statute,
they are unassailable in a court of law. 83 The ouster clause at issue in the
UDF case was s 5B of the Public Safety Act, which is framed in the
conventional rubric:
'No interdict or other process shall issue for the staying or setting aside of any regulation
made under section 3 ... and no court shall be competent to inquire into or give judgment
on the validity of any such ... regulation.'B4

The ruling in the U D F case was designed to limit the reach of the
principle established in Anisminic Ltd v Foreign Compensation
Commission, 85 regarding the logical impossibility of the exclusion of the
courts' review powers by ouster clauses of this sort. This approach is well
summarised by the authors of a recent text:
'Because ouster clauses typically prevent review of action taken "in terms of" or "under"
a particular piece of legislation, it actually makes sense to say that illegal action is not
taken "in terms of' or "under" the enactment, and therefore that the ouster clause does
not apply.'s6

The Anisminic approach is not without difficulty, though. As Professor

Mureinik has explained, it 'reads the ouster as excluding review only
when the regulation is not otherwise reviewable; and that makes the
ouster pointless'. 87 However, the alternative- the exclusion of review-
has been thoroughly discredited. For instance, Mureinik points out that

80 Rabie ACJ (at 8550-H) and Hefer JA (at 866H-867A). overruling inter alia R v Shapiro 1935 NPD
155 at 159. S v Meer 1981 (1) SA 739 (N) at 740F-H. and particularly Metal and Allied Workers Union
v State President of the Republic of South Africa supra note 78 at 3651-368A.
81 Rabie ACJ (at 8530-F) and Hefer JA (at 8721-J).
82 According to Hefer JA (at 873B-C) the legal consequences of vague executive regulations differ
significantly from those of regulations which were promulgated mala fide, for an ulterior purpose or
without proper application of the repository's mind. In the latter instances the regulations are ultra
vires.
83 Rabie ACJ (at 855G-H) and Hefer JA (872E-H). Grogan op cit note 16 at 21 observes that 'Hefer
JA acknowledged that the question remained whether the statute itself permitted the making of vague
regulations. But he did not consider it necessary to pursue this problem as the Acting Chief Justice
had, in his opinion, satisfactorily disposed of it (see at 872H-I).' It appears that He fer JA was referring
to Rabie ACJ's criticism (at 8550-G) of Metal and Allied Workers Union v State President of the
Republic of South Africa supra note 78.
84 Section 5B was inserted into the Public Safety Act by s 4 of Act 67 of 1986. Only the portions relevant
to the facts of the case are quoted in the text.
85 supra note 15. In Minister of Law and Order v Hurley supra note 18, the Anisminic approach was
applied to s 29(6) of the Internal Security Act 74 of 1982, which is broadly similar to s 5B of Act 3 of
1953. Rabie CJ based his judgment in Hurley (for the unanimous court) on South African rather than
English authority.
86 Boulle et al op cit note 16 at 296.
87 Mureinik op cit note 16 at 70.
528 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

it may engender even greater legislative surfeit, by 'rendering nugatory

every control on the exercise of power postulated in the remainder of the
statute. '88 Haysom and Plasket add, in agreement with Professor Wade,
that the Anisminic approach preserves 'a deeper constitutional logic,
based on [the English courts'] repugnance to allowing any subordinate
authority to obtain uncontrollable power. '89

The Significance of the Judgment by Hefer JA

However unappealing the result in the UDF case may be- it will be
considered in more detail in the final section- it pales when compared
to both the implications and substance of the reasoning by which it was
reached. In seeking to distinguish review for vagueness from review for
ultra vires, Hefer JA held that the ultra vires principle, or any
comprehensive justification of the courts' review powers for that matter,
is redundant in the South African law. If this is indeed the case, on what
basis do the courts set aside or correct deficient administrative decisions,
particularly those which are 'imperfect or ineffective' either due to the
vagueness of their result or, for reasons which will be explained below,
due to their non-compliance with the requirements of natural justice?
Hefer JA's explanation for the demise of ultra vires as the justification
for judicial review comprises an extraordinary sequence of non-sequiturs.
He starts by quoting Sir William Wade's exegesis of the constitutional
basis and flexibility of the ultra vires technique of judicial review, as
evidence of its 'conceptualism' in England. 90 Next, he cites Professor
Wiechers' remarks on the complex proliferation of remedies in that
country prior to the introduction of a new procedural regime by the
reforms of 1977-1981, and on the absence of similar procedural
controversies in South African law due to its simple, unitary application
for judicial review. 91 Inexplicably, Hefer JA appears to regard Wiechers'
discussion as a corollary of Wade's. Even more strangely, he then uses
this assumption as the basis for the finding that a comprehensive
justification of the courts' review powers, such as that purportedly
provided by ultra vires, is redundant in South Africa. 92
This fiat, viewed against the backdrop of legislative sovereignty,
prompted the authors of a recent text to comment that the courts have
been 'effectively stripped ... of their inherent right to review adminis-

88 Ibid.
89 H W R Wade Administrative Law 5 cd (1982) at 606, quoted by Haysom and Plasket op cit note 16
at 326.
90 Wade op cit note 89 at 40, quoted in Staatspresident v United Democratic Front supra note 14 at
867G-868C. It is not clear what Hefer JA meant by 'conceptualism', but the context seems to suggest
that it is used as a deprecatory epithet.
91 Marinus Wiechers Administratiefreg 2 cd (1984) 203. quoted at 868E-F.
92 Staatspresident v United Democratic Front supra note 14 at 8680.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 529

trative action except in a minority of cases where express legislative

provisions have been violated'. 93 Although their interpretation is logically
sustainable, it seems more probable that this dubious reasoning is an
aberration which was designed to avoid emasculating the ouster clauses
in the emergency regulations. In the UD F case, Hefer J A did not negative
vagueness as a ground of review of subordinate legislation. 94 Still less did
he attempt a broadside against the judicial review of deficient adminis-
trative decisions. Instead, he developed a 'demure' construction of
judicial authority; one which will routinely defer to an ouster. The
technique which he utilised is the controversial distinction between a
narrow conception of ultra vires and a nebulous species of review which
results in 'imperfect or ineffective' official action - whatever that
entails. 95
Ostensibly, this construction resembles Wiechers' and Rose Innes'
justifications for the courts' power to review and set aside or correct
deficient administrative decisions. However, as is clear from the brief
discussion of their views above, unlike Hefer JA, neither Wiechers nor
Rose Innes has an axe to grind with those who advocate construing a
direct ouster of the courts' jurisdiction as a nonsense. Rather, they are
concerned to insulate review for 'the more sophisticated types of
malpractice, such as unreasonableness, irrelevant considerations, im-
proper motives and breach of natural justice' ,96 from the threat of the
adoption of a narrow conception of ultra vires as the sole justification for
review. This would embody only 'the more obvious cases of inconsistency
with statute, such as failure to follow expressly prescribed procedure,
irregular delegation and breach of jurisdictional conditions'. 97

93 Boulle et al op cit note 16 at 263. Their submission that the scope of judicial review is more attenuated
than was previously supposed is obliquely supported by the controversial judgment of Friedman J in
Nata/Indian Congress v The State President 1989 (3) SA 588 (D). where the reasoning of majority in
the U D F case was explicitly extended to review for unreasonableness. There. it was said (at
592G-593C) to be one of several 'substantive grounds upon which regulations, which are passed intra
vires. might nonetheless be attacked and declared to be invalid'.
94 On the contrary. in Staatspresident v United Democratic Front supra note 14 Rabie ACJ. in whose
judgment Hefer JA concurred. confirmed (at 8511-J) that the recognition of vagueness as a ground
of review was 'inescapable'. Accordingly, Grogan op cit note 16 is also too general in his statement
(at 22) that Hefer JA's 'view is that vagueness is a valid ground of review only where the statute itself
indicates that Parliament did not wish to confer authority to make vague regulations'. It is submitted
that a contextual reading of Grogan's comment reveals an alternative, viz. Hcfer JA's 'view is that,
should an ouster clause be present, vagueness is a valid ground of review only where the statute itself
indicates that Parliament did not wish to confer authority to make vague regulations'.
95 Hefcr JA reveals his hand in the fourth paragraph of his judgment (at 8661-867A), when he states:
'naturally, as a point of departure I accept that it is expected of a delegated legislator to express its
intention by formulating its provisions with the requisite degree of clarity. I also accept that delegated
legislation which does not meet his requirement may be declared invalid, unless the Courts' power to
do so in a particular case is restricted by legislation. However, in my opinion, the rationale for its
nullification (by the courts) is not the ultra vires principle, but the vagueness of the provision itself
(my translation).
96 The wording is Wade's. Sec Wade op cit note 29 at 42.
97 Ibid.
530 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

South Africa: Ultra Vires Receding

Hefer JA supported his two-tier analysis of judicial review by linking the
statement by Rose Innes on the rationale for the rules of natural justice,
which is quoted above, to an important dictum in the recent case of
Attorney-General Eastern Cape v Blom. 98 There, Corbett JA (as he then
was) gave the following exposition of the basis of the audi alteram partem
principle:
' ... I prefer the approach which holds that in the circumstances postulated, viz a statute
empowering a public official to give a decision which may prejudicially affect the property
or liberty of an individual, there is a right to be heard, unless a statute shows, either
expressly or by implication, a clear intention on the part of the Legislature to exclude such
a right. The "implied incorporation" formulation appears to contemplate an incorpora-
tion of the right by implication, followed by the possibility of the exclusion thereof by
implication. It is true that, as I understand the position, the incorporation would be based
merely on the circumstances postulated above and the exclusion by implication upon a
consideration of the statutory enactment as a whole, but nevertheless I find this
formulation less logically satisfactory. '99

Subsequently, in Administrator, Transvaal v Traub 100 Corbett CJ (on

behalf of the unanimous court) referred both to Blom and Hefer JA's
judgment in the UDF case as authority for the statement that '[t]he right
to a fair hearing and the corresponding obligation to afford it derive from
the common law. '101 Thereafter, in a dissenting judgment in During NO
v Boesak,l02 EM Grosskopf JA, to whom the majority deferred on this
issue, surveyed 'the origin of, and justification for, the common law
review of administrative action' .103 He contrasted the wide interpretation
afforded the doctrine of ultra vires by Wade, Baxter and (significantly)
Wiechers- though he regarded the latter as 'less absolute'- with the
adoption of a dualistic rationale for the courts' review powers in the
judgments discussed above. He stressed that in the courts' view 'ultra
vires is not the only common law basis for the invalidity of administrative
action'. He distinguished between those grounds of review which are
directly connected to vires and thus justified by the doctrine of ultra vires,
such as mala fides, acting for an improper purpose and a failure by the
repository of discretionary authority to apply its mind, and others, where
the courts will review without reference to ultra vires, such as vagueness

98 1988 (4) SA 645 (A).

99 At 662G-I. Due to what appears to be a typographical error in the report of Corbett JA's judgment,
the quotation in the text is taken from the official transcript cited by He fer J A in Staatspresident v
United Democratic Front supra note 14 at 871 H-872A. This dictum was aimed at Botha JA 's comment
in South African Defence and Aid Fund v Minister of Justice 1967 (I) SA 263 (A) at 270F that where
the principle of natural justice 'cannot be implied, there is obviously no need to exclude it'.
I00 Supra note 17.
101 At 764F-G.
102 1990 (3) SA 661 (A).
103 At 675F (my translation). The discussion in the text refers to Grosskopf JA's judgment at
675F-676D.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 531

and breach of the audi alteram partem rule. However, he offered no

explanation for the basis of this second species of review. We are left to
infer that the development and application by the courts of review for
vagueness and for the failure to afford a fair hearing are self-
authenticating. Clearly, the courts have yet to grapple with the
fundamental question: in the absence of a justificatory concept like ultra
vires, what legitimates the practice of reviewing the acts of the
administration? 104

ADMINISTRATOR, TRANSVAAL v TRAUB

Judicial Restraint?
Is it possible that in the UDF case the Appellate Division established a
dichotomy between ultra vires and the common law with a view ultimately
to jettisoning those grounds of review which fall into the second category?
In the face of parliamentary sovereignty, the lack of a constitutional
foundation for review for vagueness or for breach of the audi rule, does
render these and similar grounds vulnerable to a programme of judicial
restraint. However, there is little in any of the relevant judgments to
suggest that course is envisaged. On the contrary, in Administrator,
Transvaal v Traub Corbett CJ, after citing a phalanx of recent judgments,
stated that '[t]he maxim [audi alteram partem] expresses a principle of
natural justice which is part of our law' . 10 5 Then, after consideration of
the reasons for the development of the doctrine of legitimate expectations
in English law, he declared that it was necessary to extend the scope of this
species of review in South Africa to include cases of legitimate
expectation . 106 Similarly, for the reasons stated earlier, it is equally
improbable that the majority in the UDF case attempt~d to negative
vagueness as a ground of review of subordinate legislation.

Ouster Clauses
An extraordinary appendix to the judgment in the Traub case provides
additional support for the submission that the Appellate Division has not
embarked on a programme of judicial restraint. The litigation concerned

104 Judges sometimes justify review of irregularities which cannot explicitly be linked to the vires of the
functionary by claiming that this capacity is 'inherent' in their 'jurisdiction'. This argument has
received support from Professor Taitz in his The Inherent Jurisdiction of the Supreme Court ( 1985)
5. 28-36.72-9. In an article under preparation, it will be argued that there is little historical support
for this thesis, and that, in any event, it adds little to our understanding of the complexities of modem
review.
105 Administrator, Transvaal v Traub supra note 17 at 748E-G.
106 At 7601-7610.
532 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

the refusal by the Director of Hospital Services in the Transvaal to

confirm the respondents' appointments as doctors at Baragwanath
Hospital in Soweto. The respondents claimed, for reasons which are not
relevant here, that they ought to have been given a hearing before that
decision was taken. Their contention was upheld in the court of first
instance, and an order was granted directing the Administrator to grant
them a hearing.101
In the appeal, the appellants persisted with a point that had been raised
in limine at the initial hearing. 108 They contended that as the respondents
had failed to notify them that they intended to commence review
proceedings before approaching the court, they were precluded, by a
limitation clause in s 34 of the Public Service Act, 109 from obtaining
judicial review of the Director's decision. That limitation clause
stipulated that prospective litigants must give written notification to a
provincial administrator prior to the institution of proceedings 'in respect
of any alleged act in terms of this Act, or any alleged omission to do
anything which in terms of this Act should have been done' . 110
The importance of this argument derives from the fact that, in effect,
'limitation clauses are ouster clauses which operate suspensively' . 111 If
the conditions precedent to their applicability are met, the courts are
precluded from quashing or otherwise censuring the validity of any act or
omission which falls within their ambit. The appellants contended that
should the ratio of the UD F case be applied here, the respondents would
be non-suited. Their argument may be reconstructed as follows: in the
UDF case Hefer JA held that ousters prevented the judicial review of all
administrative action within their scope, except that which is ultra vires
due to violation of the grounds of review enumerated in Shidiack v Union
Government (Minister of the lnterior).112 Thus, because the Director's
obligation to afford the appellants a hearing was not such a requirement,
his omission to do so did not affect the intra vires character of his refusal
to appoint them. Consequently, by virtue of the appellants' non-
compliance with the notice requirements in the Act, that refusal was
'protected' from the courts' review powers by the limitation clause.
Corbett CJ rejected this contention and dismissed the point in limine.
However, as recently as December 1989, the learned Chief Justice (for
the unanimous court) declined a request by counsel to depart explicitly
from the majority decision in the UDF case, as he was not satisfied that

107 Traube v Administrator, Transvaal, 1989 (I) SA 397 (W).

108 This was dealt with by Goldstone J (as he then was) at 4041-405E.
109 Act Ill of 1984.
110 My emphasis. Section 34(1) also stipulates a maximum time limit within which proceedings may be
launched.
Ill Baxter op cit note 9 at 735.
ll2 1912 AD 642 at 651-652.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 533

it was 'clearly wrong' . 113 What, then, are the reasons for the Appellate
Division's apparent volte-face? It is submitted that the outcomes in the
Traub and UDF cases differed, because Hefer JA did not follow his
reasoning to its logical conclusion, whereas Corbett CJ did.
Hefer JA's core assumption was that there is no reason why the ultra
vires principle need always be cited to legitimate judicial intervention in
the exercise of a statutory capacity. 114 It is unnecessary to characterise
those heads of review which exist independently of the vires of the
functionary as 'tacit directions of the legislature' .115 They are grounds on
which an attack can be launched against regulations made intra vires. 116
Thus, they are not 'directions of the legislature' at all, but requirements
of the common law. 117 In his view, therefore, there are two bases for
review: ultra vires, and non-compliance with common law requirements.
The former results in invalidity, whereas the latter begets intra vires, but
'imperfect or ineffective', official action. Applying this distinction to the
facts, Hefer JA separated the State President's statutory power to make
regulations in terms of s 3 of the Public Safety Act, 118 from his common
law obligation to express those regulations clearly and unambiguously.
Consequently, despite the fact that 'they fell short of the requisite degree
of clarity', the regulations were intra vires and therefore 'subject' to the
operation of the ouster clause.ll9
In Traub, Corbett CJ held that where the cause of action relates to
matters not enumerated in Shidiack, such as alleged contraventions of the
prescripts of natural justice in the appointment of employees, the
provisions of s 34 of the Public Service Act 12° do not apply. This resembles
the approach of Hefer J A in the UD F case, at least in so far as it relies on
a distinction between the statutory source of the Administrator's power
to make appointments in Provincial Hospitals, 121 and the common law

113 Sec Catholic Bishops Publishing Co v State President 1990 (I) SA 849 (A) at 866E-I. The issues
which arise whenever the Appellate Division is requested to decline to follow the ratio of one of its
previous decisions were discussed in Tuckers Land and Development Corporation (Pty) Ltd v
Strydom 1984 (I) SA I (A) at 16G-17D. See also Government of Lebowa v Government of the
Republic of South Africa 1988 (I) SA 344 (A) at361B-D.
114 Staatspresident v United Democratic Front supra note 14 at 870H-I.
115 As was done by Steyn Joe cit note 16. and in van Heerden JA 's dissenting judgment in Staatspresident
v United Democratic Front supra note 14 at 8570-1.
116 See the interpretation of this aspect of Hefer JA's judgment by Friedman J in Nata/Indian Congress
,, The State President supra note 93 at 5920-E.
117 Staatspresident v United Democratic Front supra note 14 at872B-G. As explained above, Hefer JA
used Corbett CJ's rejection of the 'implied incorporation formulation' of the audi principle in
Allorney-General Eastern Cape v Blom supra note 98 at 662G-I to support his approach.
118 Act3 of 1953.
119 Staatspresident v United Democratic Front supra note 14 at 8721-J (my translation).
120 Act Ill of 1984.
121 Corbett CJ confirmed in Administrator. Transvaal v Traub supra note 17 at 751 A that 'the power to
make the appointments in question was vested by way of delegation in the second appellant (the
Director of Hospital Services) ... in terms of s 8 of the Act'.
534 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

origins of his obligation to comply with the audi principle in exercising

that power. However, he then used this dichotomy as support for a claim
that the action complained of- non-compliance with the audi rule- had
nothing to do with the Administrator's delegated powers of appointment.
In his opinion, it did not relate to any alleged act 'in terms of the Act', or
to any alleged omission to do anything which 'in terms of the Act' should
have been done. Instead, the complainants' 'cause of action [was] based
upon the . . . omission to give them a fair hearing . . . [and the] right to
a fair hearing and the corresponding obligation to afford it derive from the
common law' . 122 The limitation clause in s 34 was therefore not
applicable.
If Corbett CJ's reasoning had been applied in the UD F case, the action
complained of- the promulgation of a vague and uncertain regulation in
breach of the common law - would have been divorced from the State
President's statutory power to make regulations in terms of s 3 of the
Public Safety Act, 123 not only to create the ultra vires/common law
dichotomy, but also to determine its consequences. The fact that a
regulation was in breach of the common law rule against vagueness would
have no relevance to the question whether it was promulgated 'under s 3'
or otherwise. Consequently, the ouster clause in s 58 would not have
been held to be applicable to the proceedings before the court, because
(to paraphrase Corbett CJ) the complainants' cause of action was based
upon the vagueness of a regulation, and the obligation to express
regulations with the requisite degree of clarity derives from the common
law.
The wheel has come full circle. The practical implications of this
heterodoxy seem indistinguishable from those of the deposed orthodoxy.
After Minister of Law and Order v Hurley 12 4 proof of any established
ground of review would emasculate an ouster clause, because the act or
omission complained of could not be said to be 'in terms of; or 'under' the
enabling statute. 125 The majority judgments in the UDF case sought to
limit the reach of this principle to administrative action or inaction which
is ultra vires in the narrow sense of non-compliance with the grounds of
review enumerated in the Shidiack case. However, following Traub,
review for non-compliance with requirements other than these would also
survive the purported application of an ouster, because the act or
omission complained of would now not be considered to have been done
or required to have been done 'under' or 'in terms of' that statute.

122 AI 764F.
123 Acl 3 of 1953.
124 Above nole 18.
125 See Lawrence Baxlcr 'A Judicial Declaralion of Martial Law· (1987) 3 SAJHR 317 al 319.
THE JUSTIFICATIONS FOR JUDICIAL REVIEW 535

CONCLUSION

Although the UDF case was undoubtedly a 'lower water mark' in

administrative law in this country, it seems that the Appellate Division
has begun to restore judicial review. Nevertheless, the sterile distinctions
which emerge from these decisions, indicate that in several crucial
respects the South African law on the judicial review is at an impasse. A
coherent justification for its nature and scope cannot confidently be
claimed. Important judgments and conflicting cases are all too often
characterised by an eclectic, ad hoc jumble of different rules and
principles, which seem to be expected to persuade by virtue of their
quasi-prophetic authority or supposed intuitive appeal. When viewed
collectively, these 'rules' and 'principles' amount to a muddle rather than
a conception of administrative justice. 126
Analyses of this sort show the exercise of judicial review to be
inconsistent and largely unpatterned. Disconcerting as this realisation
may be, it reveals 'more about the problems of modern review than an
analysis that takes refuge behind a set of very general principles and an
unquestioned faith in their smooth application' . 127 In particular, it
highlights the risk that the courts, in the exercise of their review powers,
may become as particularised and subjective as many of the institutions
which they seek to control.
The impending transformation of the South African constitutional
system provides an ideal opportunity to escape the empty formalism of
current theory and practice. Irrespective of the precise nature of the
ultimate settlement, the democratic political process - even should it
provide for extensive public participation- will not eliminate question-
able administrative behaviour. What is required now is the construction
of a theoretical basis for administrative law, against which the courts'
functions on review can be understood, assessed and reconciled with what
passes as good, democratic government.

126 Boulle op cit note 2 at 112 claims that South African public law is 'in the crucible', because it 'lacks
a legitimising base, an organising principle and a theory of development'.
127 Galligan op cit note 12 at 266.