JUDICIAL REVIEW

NATURAL JUSTICE: PROCEDURAL FAIRNESS

UNIT 6
 Review on Procedural Grounds
 Even if the substance of an official decision is within the
powers of the body taking it, a question that may arise is
whether it has been made by a proper procedure; and it
will be invalid if essential procedural requirements have
not been observed.
 These requirements are often found in the statutes which
confer the power of decision.
 Others are derived from the common law doctrine of
natural justice or, as it is now widely known, the doctrine
of fairness.
 The Rules of Procedural Fairness

 The rules of procedural fairness are encompassed in very

broad terms in three common law rules encompassing
minimum standards of fair decision making:
 The audi alteram partem (or ‘hearing’) rule: the right to a
fair hearing.
 The nemo judex (or ‘bias’) rule: no one can be judge in
his or her own cause.
 The ‘no evidence’ (or ‘probative evidence’) rule:
decisions must be based upon logically probative material
 The Rules of Procedural Fairness

 Procedural fairness, in the sense of a duty to act fairly, is implied at

common law in the absence of a clear, unambiguous contrary
intention in the legislation or other regulatory instrument governing
the making of the particular decision.
 See Kioa v West (1985) - The appellants were ordered to be deported.
The decision maker had taken into account a departmental submission
recommending deportation which contained prejudicial statements
(adverse representations) against one of the appellants. The appellants
had not been given an opportunity to answer the adverse material.
 The Rules of Procedural Fairness

 The High Court found that there had been a breach of

the rules of procedural fairness by the failure to give
the appellants an opportunity to respond to the
material prejudicial to them in the submission and
ordered that the deportation order be set aside.
 It is, however, accepted that the legislature may
displace that rule by providing otherwise.
 The Hearing Rule
Rights
 Twist v Randwick Municipal Council (1976), Barwick CJ stated: “The
common law rule that a statutory authority having power to affect the rights
of a person is bound to hear him before exercising the power is both
fundamental and universal ...”
 Cooper v Wandsworth Board of Works (1863): the plaintiff recovered from
the board damages in trespass for demolishing his partly built house. He had
failed to notify his intention to build the house to the board, which by statute
thereupon had power to demolish the building. Held, that the board should
have given a hearing to the plaintiff before exercising their statutory power of
demolition. ‘Although there are no positive words in a statute requiring that
the party shall be heard, yet the justice of the common law shall supply the
omission of the legislature.’
 The Hearing Rule
 It is fundamental to a just decision that each party should have the opportunity of
knowing the case against him or her and of stating his or her case.
 The hearing rule is not confined to the conduct of strictly legal tribunals; but is
applicable to every tribunal or body of persons invested with authority to adjudicate
upon matters involving civil consequences to individuals
 The critical factor is:
 not the nature of the decision or the decision maker (‘judicial’, ‘quasi-judicial’,
‘administrative’, etc);
 not the form of the particular decision-making process; but
 the nature and effect of the particular decision: see Council of Civil Service
Unions v Minister for the Civil Service (1985)
 Legitimate Expectation

 In their dealings with public agencies, private persons need to know if

they can rely on statements by officials or on decisions that have been
notified to them.
 The term ‘legitimate expectation’ was used in the English Court of Appeal
decision of Schmidt v Secretary of State for Home Affairs (1969), by
Lord Denning MR in distinguishing between aliens who had to leave
Britain when their leave to remain expired and those whose leave to
remain was terminated by the Home Office prematurely: the latter, but not
the former, had a ‘legitimate expectation, of which it would not be fair to
deprive [them] without hearing what [they have] to say’.
 Legitimate Expectation

 Vodacom V Communication Authority where the Court stated as

follows:
“Legitimate expectation arises where a decision maker has led
someone to believe that they will receive or retain a benefit or
advantage including that a hearing will be held before a decision is
taken………The protection of legitimate expectation is at the root of
the constitutional principle of the rule of law, which requires
regularity, predictability and certainty in government dealings with the
public.  The doctrine of legitimate expectation derives from
justification from the principle of allowing the individual to rely on
assurances given, and to promote certainty and consistent
administration.”
 Legitimate Expectation
There are four main situations to be discussed:
(1) the authority has made a decision affecting X that it later seeks to replace
with a fresh decision [revocation of a decision];
(2) the authority gives an assurance that it will apply certain procedure or
policy in a matter affecting X, but in fact acts differently [breach of an
assurance];
(3) without any assurance being given, the authority has long followed a
consistent practice, so that X believes that the practice will continue in the
absence of notice that it has been changed [consistent practice];
(4) the authority states the policy that it will follow on a matter, but changes
that policy before deciding X’s case, making a different decision from that
which X had expected [change of policy].
 Legitimate Expectation
Revocation of a decision
 Legal certainty requires that if an agency takes a decision affecting rights of
the individual and communicates it to him or her, not qualifying it as
‘provisional’ or ‘subject to review’, the agency has exercised its discretion in
the matter and may not alter the decision to the individual’s disadvantage.
 This principle is subject to express statutory provision.
 E.g. Planning permission that has been given may be revoked, but only on
payment of compensation. [section 68(1) of the Urban and Regional
Planning Act No. 3 of 2015
 Where the original benefit was based on a mistake of law, the authority may
make a fresh decision based on a correct view of the law.
 Legitimate Expectation
Breach of Assurance
 When a public authority has promised to follow a certain procedure, it is in
the interest of good administration that it should act fairly and implement its
promise, so long as implementation does not interfere with its statutory
duty.’
 If the individuals otherwise have no right to a hearing, it will be vital for
them to show that such an undertaking was given.
 E.g. R v Home Secretary, ex p Oloniluyi [1989]- Where a Nigerian woman
(without indefinite leave to remain in the United Kingdom) wished to return
home for Christmas and was given a firm assurance by the Home Office
(confirmed in her passport) that she would be readmitted if she came back
by 31 January, the immigration officer could not refuse to admit her when
she returned before that date
 Legitimate Expectation

Consistent Practice
 Council of Civil Service Unions v Minister for the Civil Service [1985] AC
375 - In this case, the invariable practice of government had been to consult
with civil service unions before changing terms of employment for civil
servants; the unions had a legitimate expectation of being consulted before
the government withdrew from staff at GCHQ the right to join a union.
Where for 25 years tax refund claims had invariably been accepted without
regard to a statutory time limit, the Revenue could not without notice begin
to refuse refunds on the basis that the claims were late. A different question
of consistency arises when officials in a department make decisions in
apparent ignorance of a settled departmental policy.
 Legitimate Expectation
Change of Policy
 In Re Findlay, the Home Secretary changed the policy on the
granting of parole to convicted prisoners, causing certain
prisoners to become eligible for parole much later than would
have been the case under the former policy. Lord Scarman said:
‘But what was their legitimate expectation? Given the substance
and purpose of the legislative provisions governing parole, the
most that a convicted prisoner can legitimately expect is that his
case will be examined individually in the light of whatever
policy the Secretary of State sees fit to adopt . . .’
 The Bias Rule
 The essence of a fair judicial decision is that it has been made by an
impartial judge. This is extended even to administrative authorities that
take decisions affecting rights or interests of people
 Bias may generally be defined as partiality or preference which is not
based on reason and is actuated by self-interest (pecuniary or personal)
 The second rule of procedural fairness is the so called ‘bias rule’, the Latin
term for which is nemo debet esse judex in propria causa, that is, no one
can be judge in his or her own cause.
 In R v Sussex Justices ex p McCarthy (1924), Lord Hewart CJ stated that
it was ‘of fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done’.
 The Bias Rule

 Two tests have been propounded and

applied by the courts over the years to
determine whether a decision maker is
disqualified from dealing with a particular
matter:
 the ‘real likelihood’ of bias test;
 the ‘reasonable suspicion’ (or
‘reasonable apprehension’) of bias test;
 The Bias Rule

Real likelihood of bias test

 The ‘real likelihood’ of bias test had its origins in the decision
of R v Rand (1866)
 A council made a claim to acquire certain waterworks.
Council bonds, charging the borough fund, were held by a
hospital and a friendly society. Two of the justices who
adjudicated on the claim were among the trustees in whose
name the bonds were held by the two institutions. The court
held that there was no real likelihood of bias.
The Bias Rule
Real likelihood of bias test
 R v Australian Stevedoring Industry Board ex p Melbourne
Stevedoring Co Pty Ltd (1953)- A delegate of the board held
an inquiry as to whether an employer was fit to continue to be
registered as an employer. Prior to the hearing the delegate
made certain remarks which tended to suggest that he had
prejudged the matter. The court, holding that it could not be
said that the delegate had so conducted himself as to raise a
sufficient case of bias, said:
 The Bias Rule
Real likelihood of bias test
 R v Australian Stevedoring Industry Board ex p
Melbourne Stevedoring Co Pty Ltd (1953)-
“Bias must be ‘real’. The officer must so have conducted
himself that a high probability arises of bias inconsistent
with the fair performance of his duties, with the result that a
substantial distrust of the result must exist in the minds of
reasonable persons.”
 Therefore, what the courts see is if there is a reasonable
ground for believing that the deciding officer was likely to
be biased.
 The Bias Rule
Reasonable suspicion (apprehension) of bias test
 The real question with this test is whether it exists
 Whether there is a ‘real likelihood’ or ‘reasonable
apprehension’ of bias is to be assessed through the eyes of a
disinterested observer (reasonable person) rather than those of
the reviewing court
 Michael Mabenga v. The Post Newspapers Limited (Appeal
No. 069/2012) [2015] ZMSC 20 (21 May 2015) - “[T]he
learned Judge should not have handled a matter in which the
lawyer appearing before her was prosecuting the Judge in a
different matter.”
The Bias Rule

 Zulu v The People (1990-1991) ZR 62 SC

 Sangwa v Nkonde SC (2018/HP/1029)
[2018] ZMHC 284
 The ‘No Evidence’ Rule

 A decision maker must decide on the basis of

logically probative material rather than mere
speculation or suspicion.
 The reviewing court:
 can receive evidence to show what material
was before the decision maker when the
decision was made; but
 cannot receive evidence so as to decide the
matter de novo
 The ‘No Evidence’ Rule

 Diplock LJ in R v Deputy Industrial Injuries Commissioner ex p Moore

(1965) said:
The requirement that a person exercising quasi-judicial functions must base
his decision on evidence means no more than it must be based upon material
which tends logically to show the existence or non-existence of facts relevant
to the issue to be determined, or to show the likelihood or unlikelihood of the
occurrence of some future event the occurrence of which would be relevant. It
means that he must not spin a coin or consult an astrologer, but he may take
into account any material which, as a matter of reason, has some probative
value in the sense mentioned above.