Does the new constitutional dispensation warrant a shift in approach to judicial review on the ground of errors of law from the common law approach? If so why and in what way? If not, why?
The new constitutional dispensation warrants a shift in the approach to judicial review on the ground of errors of law from the common law approach. This essay will argue that the shift has already occurred, but it is not a case of leaving the old ways of doing things in the past. By exploring the evolution of the common law approach and the concept of deference, this essay will seek to show how this shift in approach has moved away from an arbitrary distinction that served as a way to oust the jurisdiction of the judiciary, to an approach that acknowledges …show more content…
Corbett CJ held that whether an error of law was reviewable depended on whether the legislature had intended the administrator (or administrative body) to have ‘exclusive powers regarding the interpretation of the statutory provision’ in question . Corbett CJ held that this was a matter of how the statute that conferred the power was constructed . Corbett CJ suggested guidelines for how to approach this: (a) where the powers or functions in question are of a purely judicial nature, a court will be reluctant to conclude that the tribunal is intended to have exclusive jurisdiction to decide on the meaning of a statutory criterion . ‘‘Purely judicial’ cases are cases in which the tribunal is merely required to decide whether or not a person’s conduct falls within a defined and objectively ascertainable statutory criterion’ ; (b) ‘whether or not an erroneous interpretation of law renders the decision invalid depends on materiality of error’ . ‘If, for instance, the facts found by the tribunal are such as to justify the decision even on a correct interpretation of the statutory criterion, then normally there would be no ground for interference’ ; and (c) ‘where the power is of a discretionary nature, the general approach to establishing the intention of the legislature might be different’ . ‘‘Discretionary’ nature would be a situation in which the tribunal …show more content…
This right is expressed in section 6(2)(d) of the Promotion of Administrative Justice Act , permitting the review of administrative action where the ‘action was materially influenced by an error of law’ . This essentially gives the court the power to review all errors of law that it finds to be material . On the face of it, this provision would contradict the deference and respect that the court must show administrative bodies. The court must make the final interpretation on the error of law where it is material and where the court has greater expertise and competence than the administrator (or administrative body) . That is not to say that judges will be best positioned to make the final interpretation of an error of law in every case; interpretations of law do not inherently make themselves known to judges or administrators . Judges, while vested with a great deal of power, are not omnipotent and omniscient and this must be kept in mind when dealing with an issue as nuanced as the ground of review of errors of law.
But the way that this provision has been applied in cases after Hira v Booysen such as Tantouch v Refugee Appeal Board and Governing Body, Mikro Primary School v Minister of Education, Western Cape , show that the court must give the interpretation of law and facts by the
The new constitutional dispensation warrants a shift in the approach to judicial review on the ground of errors of law from the common law approach. This essay will argue that the shift has already occurred, but it is not a case of leaving the old ways of doing things in the past. By exploring the evolution of the common law approach and the concept of deference, this essay will seek to show how this shift in approach has moved away from an arbitrary distinction that served as a way to oust the jurisdiction of the judiciary, to an approach that acknowledges …show more content…
Corbett CJ held that whether an error of law was reviewable depended on whether the legislature had intended the administrator (or administrative body) to have ‘exclusive powers regarding the interpretation of the statutory provision’ in question . Corbett CJ held that this was a matter of how the statute that conferred the power was constructed . Corbett CJ suggested guidelines for how to approach this: (a) where the powers or functions in question are of a purely judicial nature, a court will be reluctant to conclude that the tribunal is intended to have exclusive jurisdiction to decide on the meaning of a statutory criterion . ‘‘Purely judicial’ cases are cases in which the tribunal is merely required to decide whether or not a person’s conduct falls within a defined and objectively ascertainable statutory criterion’ ; (b) ‘whether or not an erroneous interpretation of law renders the decision invalid depends on materiality of error’ . ‘If, for instance, the facts found by the tribunal are such as to justify the decision even on a correct interpretation of the statutory criterion, then normally there would be no ground for interference’ ; and (c) ‘where the power is of a discretionary nature, the general approach to establishing the intention of the legislature might be different’ . ‘‘Discretionary’ nature would be a situation in which the tribunal …show more content…
This right is expressed in section 6(2)(d) of the Promotion of Administrative Justice Act , permitting the review of administrative action where the ‘action was materially influenced by an error of law’ . This essentially gives the court the power to review all errors of law that it finds to be material . On the face of it, this provision would contradict the deference and respect that the court must show administrative bodies. The court must make the final interpretation on the error of law where it is material and where the court has greater expertise and competence than the administrator (or administrative body) . That is not to say that judges will be best positioned to make the final interpretation of an error of law in every case; interpretations of law do not inherently make themselves known to judges or administrators . Judges, while vested with a great deal of power, are not omnipotent and omniscient and this must be kept in mind when dealing with an issue as nuanced as the ground of review of errors of law.
But the way that this provision has been applied in cases after Hira v Booysen such as Tantouch v Refugee Appeal Board and Governing Body, Mikro Primary School v Minister of Education, Western Cape , show that the court must give the interpretation of law and facts by the