JUDICIAL REVIEW UNIT 6

Structure of Presentation
Introduction

Grounds of Judicial Review

• Illegality
• Irrationality
• Procedural impropriety

Remedies
 • How do we ensure that the people we have
given power to do certain things use that power
for the purpose that it was given?
• Who is responsible for this? To police the other
institutions of government?

Introduction • Judicial review is at the heart of the rule of law.

It is a mechanism that is designed to ensure that
those vested with public functions operate
within the confines of the law.
• It is the power that is vested in the courts to
ensure that the court interrogates the lawfulness
or unlawfulness of any decision.
 • Judicial review refers to the power of the court to
supervise inferior courts, tribunals, public bodies and
officers entrusted with statutory powers in the exercise
of those powers. See R v City Panel of Takeovers and
Mergers ex parte Datafin Ltd [1987]2 QB 815 cf R v
Disciplinary Committee of the Jockey Club ex parte
Aga Khan [1993] 1 WLR 909
• The remedy for judicial review is not concerned with
Introduction reviewing the merits of the decision in respect of which
the application for judicial review is made, but rather
the decision making process itself. Chiluba v
Attorney General (2003) ZR 153
• Judicial review, is a challenge to the way in which a
decision has been arrived at.
• See Nyampala Safaris (Z) Limited and Others v
Zambia
Wildlife Authority & Others (2004) ZR 49
 In Council of Civil Service Unions
v Minister for the Civil Service
(1985), Lord Diplock classified
Grounds of the various grounds of review
under the following three heads:
Judicial
Review
Illegality
• Ultra vires Procedural
Irrationality
• Jurisdictional Impropriety
Error
 Doctrine of Ultra Vires
• When power is conferred on an
administrative body, the
instrument conferring the power
may itself provide for restrictions
on the exercise of power.
Illegality • The doctrine of ultra vires is the
basic doctrine in administrative
law. It envisages that an authority
can exercise only so much power
as is conferred on it by law.
• An action of the authority is intra
vires when it falls within the
limits of the power conferred on it
but ultra vires if it goes outside
 • The doctrine of ultra vires
considers:
Illegality (a) substantive ultra vires ;
(b) procedural ultra vires.
(c) abuse of power;
(d) failure to exercise power.
 • When an administrative authority acts
i. without power,
ii. in excess of power or
iii. abuses power,

Substantive such acts will be rendered invalid on the

ground of substantive ultra vires.
Ultra Vires E.g. London County Council v AG
(1902) - A council, which was expressly
empowered by statute to run tramways,
acquired the business of a company which
worked tramways and ran bus services. It
was held that the council was acting ultra
vires in running buses.
 Mushambatwa v Livingstone Municipal
Council and Another [1992] ZMHC 6 –
• The applicant sought a declaration that
the Minister of Local Government and
Housing had no power to transfer him
and that such transfer constituted
Substantive maladministration, political harassment

Ultra Vires and victimization and lacking in legal or

administrative authority. He also sought
an injunction to prevent the repossession
of his vehicle and his eviction from the
council house, plus damages.
• Minister's decision to remove Council
official from his position was held to be
illegal, therefore, ultra vires and
amounted to maladministration.
 • THE ATTORNEY-GENERAL v THE
LOCAL GOVERNMENT ELECTION
COMMISSION (1990 - 1992) Z.R. 182
(H.C.)
• The Attorney-General sought an order that
Reg. 10 of the Local Government Election
Regulations contained in SI No. 111 of 1992
Substantive and providing that all election candidates
should have attained an education level of
Ultra Vires Grade VII or equivalent, was ultra vires the
Local Government Elections Act which
determined the qualifications for standing.
• At issue was
(1) the interpretation of the extent of the
Local Government Election Commission's
powers to legislate and
(2) the relationship between subsidiary
legislation and the enabling Acts of
 • Held:
(i) The Local Government
Election Commission is empowered to
legislate procedural rules and these
Substantive powers do not extend to
such as the
substantive law
conditions for candidacy.
Ultra Vires (ii) The Local Government
Elections Act does not make literacy a
condition for candidacy, therefore a
regulation creating such a condition
is ultra vires the Act and of no legal effect.
 • In addition to the substantive limitations imposed
upon a decision maker’s powers, there may also
be ‘procedural limitations’ on the exercise of a
power.
• Some statutes do lay down the procedure for the
fulfillment of a statutory duty or exercise of the
power, failure to comply with it may render the
Procedural Ultra Vires action taken ultra vires.
• An administrative authority may be exercising a
power for an authorised purpose but, if it fails
to follow a required procedure, its actions will
be open to challenge.
• The authority here may be ‘doing the right
thing’ but it is doing it ‘in the wrong way’.
This is the concept of procedural ultra vires.
 • Mooto (SG Zambia Association of
Timber and Forestry Based
Industries) v Director of Forestry and
Another (2017/HP/1016) the Forests
Act empowered the Director of
Forestry to suspend timber export
Procedural Ultra Vires licenses, but this must be done with
notice in writing to the concerned
holder.
• Therefore, by failing to do so the
action taken by the first respondent
was illegal.
Procedural Ultra Vires
• The statute may even provide the opportunity of a public
inquiry before a final decision is taken, e.g. Environmental and
Pollution Control Act .
• Even if the statute does not establish a procedural standard,
the courts have themselves developed rules to ensure fairness
of procedure in decision-making – Rules of Natural Justice/
Duty of Fairness.
• The requirement for procedural standard is classified as either
‘mandatory’ or ‘directory’ in tenor
 Mandatory or Directory Conditions
• Acts of Parliament conferring power
on public bodies very often impose
conditions about procedure, for
example, by requiring that a notice
Procedural Ultra Vires shall be served or that action shall
be taken within a specified time or
that the decision maker shall state
reasons.
• What happens when the authority
fails to observe such a condition: are
its action ultra vires?
 Mandatory or Directory
• The task of construction is to determine
whether, having regard to the scope and
object of the particular provision (and,
indeed, of the whole statute or instrument),
Procedural Ultra Vires the legislature intended that a failure to
comply with the stipulated requirement
would invalidate the act done, or whether
the validity of the act would be preserved
notwithstanding non-compliance with the
requirement.
• See In Re Bowman [1932] 2 KB 621;
Musson v Roderick [1953] AC 530;
Procedural Ultra Vires
• Where the procedural requirement is so called ‘mandatory’, it
must be strictly followed, otherwise the action taken will be
null and void (or, at least, susceptible to being quashed by the
court)

• Attorney General v William Muzala Chipango (1971) ZR 1

(CA)
The court held that the consequences of not supplying grounds of
detention to an accused person within 14 days were grave and as such,
the legal requirement was mandatory and not directory.
 Procedural Ultra Vires
• Generally speaking, where:
• the impact of the action taken on private rights would be
material; or
• the procedural requirement can be seen to be intended
to assist the citizen in enforcing his or her rights, then it
is likely to be regarded as mandatory so as to affect
validity.

In Re Bowman it was held that one has to look at the practical

effect of the exercise of that power on the affected person.
Express Requirements and Conditions
• Sometimes the legislation makes it plain or provides
what the effect of non-observance is to be.
• But, more often it does not, and then the court must
determine the question.
• The court does this by weighing the inconvenience of
holding the condition ineffective against the
inconvenience of insisting upon it rigidly.
Express Requirements and Conditions
Procedural and Formal Requirements
• Procedural safeguards, which are so often imposed for the benefit
of persons affected by the exercise of administrative powers, are
normally considered as mandatory, so that it is fatal to disregard or
not follow them.
• Where there is a statutory duty to consult persons affected, this
must genuinely be done, and reasonable opportunity for comment
must be given.
• Where a proposal or scheme is required to be published it must be
accurately described and any one entitled to object must be allowed
adequate time to do so.
Express Requirements and Conditions
• In Lee v. Dept. of Education and Science (1967) 66 LGR 211, the four
days’ notice of a local authority’s scheme for setting up
comprehensive schools was held wholly unreasonable and
inadequate, so the scheme was void.
• Also in Bradbury v. Enfield LBC [1967] 1 WLR 1311 a scheme for
setting up a comprehensive school was held void and prohibited
by an injunction, because public notice of it had not been given as
required by the Education Act 1944.
Express Requirements and Conditions
Time Limits
• An act may be held to be validly or invalidly done after the expiry of
a statutory time limit.
• However, time limits may be held to be mandatory where the rights
of other persons depend on them or they are of special importance.
• Section 36 of Cap 2 provides “Where no time is prescribed, or
allowed within which anything shall be done, such thing shall be
done without unreasonable delay, and as often as due occasion
arises.”
Express Requirements and Conditions
Failure to State Reasons
• Many statutory tribunals are required to give reasons for their
decisions on request
• This duty may be broken either because no reasons are given or
because the reasons given are inadequate.
Abuse of Power
A donee of a statutory power must exercise that power strictly for the
purpose for which it has been given, ultimately by the legislature.
Abuse of power:
❍ Bad faith
❍ Improper purpose
❍ Irrelevant considerations
❍ Unreasonableness
❍ Lack of proportionality
❍ Uncertainty (and lack of finality)
Abuse of Power
Bad faith and Improper purpose

• A decision maker must not exercise its powers in bad faith or

for an improper purpose, i.e. for a purpose other than the
purpose for which the power was conferred

• Bad faith has clearly been recognised as a ground of challenge

for abuse of power: see Anisminic Ltd v Foreign
Compensation Commission (1969)
Abuse of Power
Bad faith and Improper purpose
• It is difficult to find examples where it stands alone as the ground for attacking an
administrative decision

• It is usually an additional line of argument in cases where reliance is being placed

on the fact that the decision in question is unreasonable or that irrelevant
considerations have been taken into account. See North Western Co. Ltd. v
Energy Regulations Board [2011] ZMHC 76; Derrick Chitala (Secretary of the
Zambia Democratic Congress) v Attorney General (1995)
Abuse of Power
Irrelevant Considerations
• A decision maker:
 must not base a decision on irrelevant or extraneous
considerations; and
 must give due and proper consideration to all relevant
consideration
 Abuse of Power
Irrelevant Considerations
• The rules in relation to relevant and irrelevant considerations are as follows:

 The determination of what considerations are relevant and irrelevant is a matter of statutory
construction.
 The statute may structure the decision maker’s discretion by expressly enumerating the
considerations to be taken into account. Where the statute does not do that, or the reviewing
court decides that the enumerated factors are not exhaustive but merely inclusive, it will turn
to the common law principles for ascertaining whether the power has been abused:
• See The Sylvia Masebo Tribunal : William Harrington v Attorney General
Abuse of Power
Irrelevant Considerations
• A requirement to ‘consider’ some matter ordinarily denotes an
obligation to give ‘proper, genuine and realistic consideration’
• E.g. Parramatta City Council v Hale (1982) - A local council granted
development consent for the construction of a sports stadium in a
public park. It was alleged that the council had failed to take into
account certain relevant considerations. The court held that the council
had not given the consideration which the relevant legislation directed
it to give to such specified matters as parking, traffic and access. It was
found that the councilors charged with the making of the decision had
not had a proper opportunity to make an informed decision and did not
have adequate information before them when they made their
purported decision.
Abuse of Power
Irrelevant Considerations
• A consideration is therefore irrelevant where the authorities have
based their decisions on considerations which were not relevant to
their decision making power and acted unreasonably
• The improper purpose or the irrelevant consideration must be such
as to materially influence the decision.
• Where the improper purpose is not of such material influence, the
authority may be held to be acting within its lawful discretion.
Abuse of Power
Material Reasonableness
• A decision maker must not exercise its powers ‘unreasonably’ (in the sense that no
reasonable decision maker, acting within the ‘four corners of its jurisdiction’, could
ever have reached the decision in question):
• Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) – not
a matter of what the court considered unreasonable; concerned the Sunday
Entertainments Act 1932 that gave a local authority power to permit cinemas to
open on Sundays,‘subject to such conditions as the authority think fit to impose’. A
local council allowed cinemas to show films on Sundays, on the condition that no
children under 15 should be admitted to the performances, with or without an adult.
This prevented parents taking their children to the cinema on a Sunday. Held, the
condition was neither ultra vires nor unreasonable.
• A judge may not on judicial review set aside an official decision merely because he
or she considers that the matter should have been decided differently
Abuse of Power
Material Reasonableness
Council of Civil Service Unions and others v Minister for the civil Service
– “By “irrational” I mean what can by now be succinctly referred to as
“Wednesbury unreasonableness: It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that
no sensible person who had applied his mind to the question to be
decided could have arrived at it.” i.e. irrationality test - Lord Dipplock
Abuse of Power
Lack of Proportionality
• A decision may be so lacking in reasonable proportionality as ‘not to be a real exercise of the
power’
• If in a given situation there is a need for public action to restrict the right, the restriction ‘must be
necessary and proportionate to the damage which the restriction is designed to prevent’. Any further
restriction is unjustifiable.
Uncertainty (and lack of finality)
• A decision maker must make decisions which are ‘certain’ and ‘final’. In that regard, a decision
may be declared invalid if:
 the exercise of the power leads to a result that is so uncertain that no reasonable person could
comply with it or
 it cannot be given any sensible meaning (but not merely because it is ambiguous or could lead
to uncertain results)
• Certain types of administrative decisions, such as an approval or a consent granted by a local
council, the making of which is intended to finalise the issues raised by the subject application for
the approval or consent, must possess ‘finality’
Failure to exercise power
Fettering discretion
• A decision maker must not fetter itself in advance as to how it will
exercise its statutory discretion, whether by way of contract, estoppel or
otherwise
• This means that a decision maker, entrusted with a discretionary power:
 will be acting unreasonably where it refuses to hear applications or makes
certain decisions without taking individual circumstances into account by
reference to a certain policy.
 It cannot bind itself to exercise a function in a particular manner.
 Even though an authority may establish internal guidelines, it should be prepared
to make exceptions on the basis of every individual case
 Acting on a policy
Failure to A decision maker must:
• examine in detail each matter before it on its
exercise merits; and
• not automatically (or inflexibly) apply an overall
power policy without
• considering the particular circumstances of the
matter before it the application of a stated policy to
decision making ensures consistency and fairness
 • The doctrine of jurisdictional error:
 in its modern form can be traced from the
17th century when it came to be used to
control the activities of inferior courts and
2. Jurisdictional quasi-judicial statutory tribunals; and
 is very similar to the doctrine of ultra vires
Error which became a means of ensuring that
executive and administrative authorities
(including local government authorities)
acted within their powers. One doctrine
speaks in terms of ‘jurisdiction’, the other
in terms of ‘power’.
Difference between JE and UV
• Reviewing courts usually said that an inferior
court or tribunal that had exceeded its
powers had made a jurisdictional error;
wheras an administrative officer who had
gone beyond power was said to have acted
ultra vires.
Errors of law and errors of fact
In judicial review proceedings, the distinction between questions
(and errors) of fact and questions (and errors) of law was critical.
Traditional jurisdictional error
• Errors of law (as opposed to errors of fact) could be classified
according to whether or not they went to jurisdiction.
• The commission of a jurisdictional error resulted in a void decision,
whereas the commission of a non-jurisdictional error of law only
resulted in a voidable decision.
Error Outside Jurisdiction
• In the case of R v Northumberland Compensation Appeal Tribunal
Exparte Shaw [1952] 1 All ER 122, an error of law did not render an
administrative decision void but merely voidable until such a time that
the person affected avoided it through court process.
• However, in the Anisminic case Lord Denning MR stated that there is
no distinction between jurisdictional and non-jurisdictional errors of
law.
• All errors of law are jurisdictional, be they within or outside the legal
bounds of the powers conferred upon a tribunal.
Error Outside Jurisdiction
• In Anisminic case, the House of Lords was concerned only with the decisions
of Administrative Tribunals.
• It proceeded on the presumption that where Parliament confers on an
Administrative Tribunal or authority as distinct from a court of law, power to
decide particular questions defined by the Act conferring the power,
Parliament intends to confine that power to answering the question as it has
been so defined and if there has been any doubt as to what that question is,
this is a matter for the courts of law to resolve in fulfillment of their
constitutional role as interpreters of the written law and expounders of the
common law and rules of equality.
• So if the Administrative Tribunal or authority, have asked themselves the
wrong question, and answered that they have done something that the Act
does not empower them to do then their decision is a nullity.
Error Outside Jurisdiction
• The Foreign Compensation Act of 1950 had provided that a determination
of the commission ‘shall not be called in question by any court of law’. It
was held that an ouster clause cannot apply to a decision which is ultra
vires the commission’s powers.
• The decision in Anisminic case was upheld in O’Reilly V Mackman (1983) AC
237 where the jurisdiction of the Tribunal was restated, that a Tribunal’s
jurisdiction was limited by statute or subordinate legislation and where
the wrong question was asked which the Tribunal was not empowered to
inquire, there was no jurisdiction to determine.
• Its purported determination, not being a determination within the
meaning of the empowering legislation was accordingly a nullity.
 Dora Siliya Case
• Harrington v Siliya and Another SCZ Judgment No. 14 of 2011

• Section 4 of Parliamentary and Ministerial Code cap 16 provides the

grounds upon which a member of National Assembly is considered to have
breached the Code of Conduct.
• 4. A Member shall be considered to have breached the code of
conduct if he knowingly acquires any significant pecuniary advantage, or
assists in the acquisition of pecuniary advantage by another person, by-
• (a) improperly using or benefitting from information which is obtained in the course of his
official duties and which is not generally available to the public;
Dora Siliya Case
• A Tribunal under the said Act was created to investigate the
allegations of the breach of the code of conduct.
• The Tribunal having found that the applicant had not breached part II
of the Parliamentary and Ministerial Code of Conduct and duly cleared
her of all three allegations acted within jurisdiction, but acted in
excess of jurisdiction and illegally when it purported to invoke section
14(8) and pronounce itself on a constitutional matter.
Dora Siliya Case

• Section 14(8) of Cap 16 provides

“ In its report, the tribunal may make such recommendations

as to administrative actions, criminal prosecutions or other
further actions to be taken as it thinks fit.

• The Applicant sought for judicial review on the grounds, inter alia,
illegality.
Dora Siliya Case
• A. ILLEGALITY

• (i) The decision of the Tribunal dated the 16th day of April 2009, purporting to
make recommendations that the applicant was in breach of the provisions of
the Constitution of the Republic of Zambia, was in excess of its jurisdiction as
stipulated by the provisions of the Parliamentary and Ministerial Code of
Conduct Act.

• (ii) The Tribunal erred in law when it purported to adjudicate on constitutional

matters and pronounce itself on the provisions of the Constitution of Zambia
as that is the preserve of the High Court of Judicature of Zambia.
Dora Siliya Case
• (iii) Even in the event that the Tribunal possessed the requisite
jurisdiction it still erred in law when it misconstrued the
interpretation of the provisions of Article 54(3) of the Constitution,
qua the status of the ex-parte facto advice of the Learned Attorney
General in a breach of the Constitution. Advice having been given
after the fact.
Dora Siliya Case
• The court held that having said that, there is no coherent
alternative to the excess of jurisdiction and the misinterpretation
of Article 54(3) arguments advanced by the applicant and
substantially conceded to by the Attorney General. The order of
certiorari to quash the finding that there was breach of the
Constitution is granted as prayed. The Tribunal’s findings that
there was no breach of Part II of the Ministerial Code of Conduct
remain undisturbed, which means she is cleared by the Tribunal
under Part II and by this court under Article 54(3) of the
Constitution and it is so ordered.