Recent Case Law

1. International Treaties and the Rule of Law: International Treaties must be respected.

In the litigation between Government of the Republic of Zimbabwe v Fick and Others

The Constitutional Court pronounced that the Constitution of the Republic of South Africa requires that the SA state is ‘to honour our international agreements and give practical expression to them’ and that access to SA’s courts must be generous, especially when approached to enforce orders from international courts ‘stemming from human rights or rule law violations provided for in treaties that bind SA’. The Court has therefore aligned judicial and executive attitudes to comply with international law. International law is part of the rule of law and SA must position itself as a responsible member of the international community, taking its international obligations seriously.

2. Report – Administrative law – review – decision-maker required to take relevant considerations into account

MEC for Environmental Affairs and Development Planning v Clairison’s CC (408/2012) [2013] ZASCA

Distinction between appeal and review:

The Supreme Court of Appeal (“SCA”) has revisted the distinction between and appeal and a review. It bears repeating that a review is not concerned with the correctness of a decision made by a functionary, but with whether he performed the function with which he was entrusted. When the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.

The power to review is sourced today in the Constitution, and not the common law, but sound principles are not detracted from because they were expressed in an earlier era. In the case of Pharmaceutical Manufacturers of South Africa: In re Ex parte President of the Republic of South Africa it was stated:

“That is not to say that the principles of common law have ceased to be material to the development of public law. These well-established principles will continue to inform the content of administrative law and other aspects of public law, and will contribute to their future development”

It has always been the law, and we see no reason to think that the Promotion of Administrative Justice Act 2 of 2000 has altered the position that the weight or lack of it to be attached to the various considerations that go to making up a decision is that of the decision-maker.
“The court will merely require the decision-maker to take the relevant considerations into account; it will not prescribe the weight that must be accord to each consideration, for to do so could constitute a usurpation of the decision-maker’s discretion.” (Lawrence Baxter Administrative Law 1 ed (1984) at 505).

3. In the Case of Durban Rent Board and Another v Edgemount Investments Ltd 1946 at 974:

“In determining what is a reasonable rent it is entitled and ought to take into consideration all matters which a reasonable man would take into consideration in order to arrive at a fair and just decision in all the circumstances of the case… How much weight a rent board will attach to particular factors or how far it will allow any particular factor to affect its eventual determination of a reasonable rent is a matter for it to decide in the exercise of the discretion entrusted to it and, so long as it acts bona fide, a Court of law cannot interfere.”

What was said in Durban Rent Board is consistent with present constitutional principle and we find no need to re-formulate what was said pertinently on the issue that arises in this case. The law remains, as we see it, that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how far a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere.

An administrative official when making a decision must not be partial towards one party or another.