A Guide to Filing for Judicial Review of Regulatory Decisions in South Africa

In South Africa, the Promotion of Administrative Justice Act (“PAJA”) empowers individuals and businesses to seek judicial review of regulatory decisions they believe are procedurally unfair, biased or unlawful. This form of review is essential in maintaining the integrity of administrative actions by ensuring that decisions made by regulatory bodies are transparent, accountable, and adhere to the standards of South African administrative law. Here, we outline the judicial review process, relevant time frames and common grounds for review under PAJA.

Understanding Judicial Review Under PAJA

PAJA was enacted to support the constitutional right to just administrative action. Unlike an appeal, which challenges the outcome of a decision, judicial review assesses whether the decision-making process was lawful, reasonable and procedurally fair. Judicial review under PAJA allows affected parties to contest administrative actions that they believe were taken improperly.

The Judicial Review Process Under PAJA

1. Identify Grounds for Judicial Review

   Before filing for judicial review, it’s essential to determine valid grounds under PAJA. Judicial review does not focus on whether the decision itself was right or wrong; rather, it evaluates whether the process was legally sound. Common grounds for review under PAJA include:

   • Procedural Unfairness: When a decision-making process does not provide affected parties with a fair opportunity to participate or present their views.

   • Unreasonableness or Irrationality: If a decision lacks a logical basis or is deemed irrational, it may be challenged.

   • Bias or Conflict of Interest: Decisions influenced by bias or personal interests are grounds for judicial review.

   • Acting Beyond Legal Authority (Ultra Vires): If a regulatory body exceeds its legal mandate, affected parties can seek judicial review.

2. Determine the Appropriate Court for Filing Review

   Judicial reviews are typically filed in the High Court, which has the authority to review administrative actions. In some cases, internal review mechanisms may be available and required as a first step before escalating to the courts. Consulting a legal expert can help determine the best forum for review based on the nature of the decision and the regulatory body involved.

3. File the Application Within the Prescribed Time Frame

   Time frames are crucial in judicial review cases. Under PAJA, an application for review must be filed within 180 days from the date on which the decision was communicated or became known to the affected party. Failure to adhere to this time limit may result in dismissal of the review application, so it’s essential to act promptly.

4. Gather and Submit Supporting Documentation

   Proper documentation is essential for a successful judicial review. This includes:

   • Notice of Motion and Founding Affidavit: The notice of motion initiates the review process, while the founding affidavit details the grounds for review, providing context and evidence.

   • Supporting Documents: Attach relevant documents, correspondence, and evidence that support your claim. This may include records of the regulatory body’s decision-making process or any procedural discrepancies noted.

   Ensuring that your documentation is accurate and comprehensive is key, as incomplete or incorrect information can delay the review process or lead to rejection.

5. Prepare for Court Proceedings

   Judicial review applications generally involve a court hearing where both parties present their cases. The applicant’s legal team argues why the decision-making process was unlawful or unfair, while the respondent (typically the regulatory body) defends the integrity of its actions. Having a legal representative experienced in administrative law is crucial for effectively presenting your case.

Common Grounds for Judicial Review Under PAJA

• Procedural Fairness: Under PAJA, all affected parties should be given a fair chance to participate in the decision-making process. Lack of adequate notice, failure to allow representations or biased proceedings are grounds for judicial review.

• Reasonableness and Rationality: Decisions by regulatory bodies must be based on logical reasoning and a rational assessment of the circumstances. Irrational or arbitrary decisions can be contested in court.

• Legality (Ultra Vires): Regulatory bodies must act within the scope of their legal powers. If a decision exceeds these powers or violates legal requirements, it may be reviewed.

• Error of Law or Fact: Decisions based on misinterpretation of the law or factual inaccuracies can be reviewed.

• Legitimate Expectation: If a regulatory body fails to fulfill a legitimate expectation, established through past practices or promises, affected parties may have grounds for judicial review under PAJA.

Potential Pitfalls to Avoid

1. Delays in Filing: Filing beyond the 180-day deadline is a common reason for dismissal. Ensure you file as soon as possible after the decision is made.

2. Incomplete or Inaccurate Documentation: Maintain comprehensive and well-organized records of all interactions, evidence and communications that support your claim. Incomplete records can hinder the review.

3. Failure to Articulate Grounds for Review Clearly: Judicial review applications must be precise about the grounds of review under PAJA. Vague or unsupported claims can result in dismissal.

4. Not Consulting Legal Experts: Judicial review is a nuanced area of law, and consulting administrative law professionals is crucial. A legal expert can help you navigate the process and strengthen your case.

Conclusion: Ensuring Fairness Through Judicial Review

Judicial review under PAJA provides a vital check on the administrative powers of regulatory bodies in South Africa. It ensures that administrative actions are lawful, reasonable, and fair, offering affected individuals and businesses a way to challenge flawed decision-making processes. If you believe a regulatory decision was taken improperly, understanding the review process, gathering strong evidence, and acting promptly are essential steps toward securing a fair outcome.

How Barter McKellar Can Help

At Barter McKellar, our team specializes in administrative law and is well-equipped to guide clients through the judicial review process under PAJA. We understand the complexities of regulatory decision-making and can assist you in challenging unlawful actions through careful preparation and skilled representation. Contact us today to explore how we can help ensure fairness and accountability in administrative decisions affecting you or your business.