The notion that an administrative decision can be reviewed and set aside

on
the basis that the decision was not reasonable, remains a contentious one in
our law.83 This is so because administrative review is not normally seen
as
focusing on the correctness or wisdom of an administrative decision.
Given
the constraints placed on courts by the separation of powers doctrine, it is
generally thought that it would not normally be appropriate for a court to
review and set aside an administrative decision merely because the court
believes the decision was not the best possible decision to be made in the
circumstances. Administrative decisions deal with the review of decisions,
not with the appeal of such decisions on the merits of the decision.
Reasonableness review is controversial because it draws the courts into the
awkward space between review and appeal by necessitating an assessment
of the merits of an administrative decision. This is something that is
usually
associated with the appeal of a decision, not with its review in terms of
administrative law grounds.84
Nevertheless, reasonableness review does form part of South African
law. In the pre-constitutional era, the Appellate Division in Johannesburg
Stock Exchange and Another v Witwatersrand Nigel Ltd and Another held
that in terms of the common law, an administrative decision could be
reviewed and set aside if ‘the decision … was so grossly unreasonable as
to
warrant the inference that he had failed to apply his mind to the matter in
the manner aforestated’.85 However, the pre-constitutional jurisprudence
failed to establish reasonableness as a free-standing ground of review.86
Unreasonableness was only considered to be a ground of review to the
extent that it could be shown that a decision was so unreasonable as to lead
to a conclusion that the official had failed to apply his or her mind to the
decision.87
Section 33(1) of the Constitution now states that everyone has the right
to administrative action, inter alia, that is ‘lawful, reasonable and
procedurally fair’. The reasonableness aspect is purportedly given effect to
by section 6(2)(h) of the PAJA which states that the court can review an
administrative action if:
the exercise of the power or the performance of the
function authorised by the empowering provision, in
pursuance of which the administrative action was
purportedly taken, is so unreasonable that no reasonable
person could have so exercised the power or performed
the function.
This seems like a rather clumsy formulation. However, in Bato Star
Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 88
the Constitutional Court interpreted this provision in the light of section 33
of the Constitution. The Court said that even if it may be thought that the
language of section 6(2)(h) of the PAJA, if taken literally, might set a
standard which would rarely if ever lead to a finding that a decision was
unreasonable, ‘that is not the proper constitutional meaning’ of the
subsection. Instead, section 6(2)(h) should 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’.89