Corder and Mavedzenge - Pursuing Good Goveernance PDF

Pursuing
Good ADMINISTRATIVE JUSTICE

IN COMMON-LAW AFRICA
Governance
EDITORS
HUGH CORDER & JUSTICE MAVEDZENGE
RSUING
GOOD
NANCE
Pursuing Good Governance
ADMINIS TR ATIV E JUS TICE IN COMMON - L AW AFRIC A
Pursuing Good Governance
ADMINISTR ATIVE JUSTICE IN COMMON-L AW AFRIC A
Editors
Hugh Corder
Justice Mavedzenge
2019
First published 2019
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Contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Arne Wulff
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Hugh Corder
Chapter Page
1. The State of Administrative Justice in Lesotho . . . . . . . . . . . . . . . . . . 1
Hoolo ’Nyane
2. The State of Administrative Justice in Zambia . . . . . . . . . . . . . . . . . .21
Felicity Kayumba Kalunga and O’Brien Kaaba
3. The Control of Administrative Power in Zimbabwe and Implications of
Substantive Fairness as a Ground of Review . . . . . . . . . . . . . . . . . . .47
Justice Alfred Mavedzenge
4. The State of Administrative Law in Malawi: Systems, Structures and
Emerging Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Redson E. Kapindu and Fidelis E. Kanyongolo
5. An Overview of the Framework Governing Administrative Justice
in Kenya . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Cecil Abungu
6. Resurgent Judicial Power and Administrative Law in Uganda . . . . . . . . 107
Ronald Kakungulu-Mayambala
7. Administrative Justice in South Africa: An Overview of Our
Curious Hybrid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Lauren Kohn and Hugh Corder
v
Foreword
The Rule of Law Programme for Sub-Saharan Africa of the Konrad-Adenauer-

Stiftung supports regional initiatives aimed at realising an effective and efficient
administrative justice system in Africa. Such a system must be anchored upon
respect for the rule of law, functional separation of powers, accountability, and
good governance.
This is particularly important as the continent moves towards constitutional
democracy where the protection of human and constitutional rights is indispen-
sable. In a responsive and participative democracy, the citizens must be assured
of having means of protection against the violation of their rights. As such, the
composition, procedures, powers, duties, rights and liabilities of the various organs
of government, public and other bodies that are engaged in administering public
functions must be within legal bounds.
In August 2018, the Rule of Law Programme for Sub-Saharan Africa organised a
regional workshop on ‘The State of Administrative Justice in Commonwealth Countries
in East and Southern Africa’ in Gaborone, Botswana. This brought together experts
from these regions who deliberated on the state of administrative justice in their
countries with a view to exploring viable solutions towards the realisation of fair,
effective and independent administrative justice systems in Africa.
Over the last two decades, much law reform has been undertaken in many of
the States in these two regions, albeit in an uneven manner. For instance, South
Africa, Malawi, Uganda, Kenya, and Zimbabwe have followed the pioneering
example of Namibia, which constitutionalised the right to administrative justice
in its independence Constitution of 1990.1 Whereas this is a commendable step
forward, implementation of these reforms remains a challenge.
In the workshop it was noted that the development of the ideal administrative
justice system on the continent is a long-term venture. Nevertheless, it is one which
must be undertaken in order to ensure that administrative authority is exercised in
a lawful, reasonable and procedurally-fair manner. Consequently, where people’s
rights and interests are adversely affected by the decision and action of any admin-
istrative authority, adequate remedies must be provided.
‌The idea of documenting the state of administrative justice in Common Law
Africa was mooted which has resulted in the publication of this book. The coun-
tries included in this book mostly rely on judicial review as the bedrock of admin-
istrative justice. However, there is an increasing push for consideration of alterna-
tive and additional means of securing administrative justice, such as the use of
Ombudspersons, appeals tribunals, standing commissions which focus on human
rights protection, open governance, among others.
1
Article 18 of the Constitution of Namibia, 1990.
vii
viii P ursuin g Good Governance
We wish to thank Prof. Hugh Corder and all the authors involved for their
willingness and commitment in producing this book. I am sure the book will find
broad readership and thus make an invaluable contribution towards the realisation
of fair, effective and independent administrative justice system in Africa for greater
accountability.
Dr Arne Wulff
November 2019
Director of the Rule of Law Programme for Sub-Saharan Africa
Konrad-Adenauer-Stiftung
Introduction
HUGH CORDER*
This book is the culmination of a slightly attenuated project, in itself the regional
extension of research and law-reform work with which I have been intimately
involved since 1991. As the demise of apartheid and the establishment of a con-
stitutional democracy beckoned in early 1991, I set off on a timely period of sab-
batical leave from the University of Cape Town. Travelling to Australia, Canada
and the UK, I focused my attention on three broad areas in which South African
constitutional and administrative law had been impoverished by virtue of its
expulsion from the Commonwealth in 1961, and the self- and externally-imposed
isolation which marked academic life in the subsequent three decades. These were
the methods for the selection and appointment of superior-court judges; the role
of Parliament in holding the executive to account; and the reform of administra-
tive law broadly, including various non-judicial means of reviewing the validity of
administrative conduct.
As it turned out, through no grand plan but rather a substantial degree of good
fortune, I ended up finding myself in a position to play an influential role in the
formulation of constitutional law on all three fronts. This was chiefly through my
membership in 1993 of the Technical Committee on Fundamental Rights during
the Transition, a small group which advised the multi-party negotiations process
which drafted South Africa’s first democratic constitution: our part was to draft
the transitional bill of rights.1 This process resulted in the inclusion of a ‘right to
administrative justice’ in the Bill, not an unprecedented step (Namibia had done so
just four years earlier2), but certainly highly unusual. This was both the conclusion
of a considerable amount of activity agitating for meaningful administrative law
reform, but also marked the start of a thorough-going process of redirecting both
judicial review of administrative action but also exploring alternative means of
subjecting such action to external scrutiny, to ensure compliance with lawfulness,
procedural fairness, and reasonableness.3

* Project leader.
1
For an account of our work, see Lourens du Plessis and Hugh Corder Understanding South Africa’s
Transitional Bill of Rights (1994), in particular chapter 1.
2
See the Constitution of Namibia (1990), article 18.
3
For an overview of this decade of administrative law reform, see Hugh Corder ‘Reviewing review:
much achieved, much more to do’, chapter 1 in Hugh Corder and Linda van de Vijver (eds)
Realising Administrative Justice (2002).
ix
x P ursuin g Good Governance
However, given the origins of the right to administrative justice in Namibia,

and the subsequent adoption of similar rights in the newly-made constitutions
of other Commonwealth states such as Uganda, Malawi, Kenya and Zimbabwe,
it seemed natural to me that lawyers from such jurisdictions should gather to
compare common problems and exchange experiences. In 2016, I approached the
Konrad Adenauer Foundation’s Rule of Law programme based in Nairobi, and they
kindly agreed to provide funding. Below are the terms in which I cast the proposal:
‘An Intervention to Secure a Greater Degree of Administrative Justice Reform

in East and Southern Africa
Context
The achievement of reasonable compliance with the requirements of administrative
justice has, over the past three decades, come to be seen as an indispensable part of
any constitutional democracy. In particular, the role which administrative fairness and
efficiency can play in the protection of human and constitutional rights is increasingly
recognised, as the notion of “democracy” advances from a majoritarian representative
model to a participative and responsive model. Some form of review of the exercise of
all forms of public power or the performance of a public function, whether done by a
public or private authority, is an essential element of the rule of law in any system of
government that pretends to be a constitutional democracy. When the notion of pro-
tected rights expands to include the provision by the State of socio-economic benefits
such as welfare payments, access to housing and basic amenities of life, healthcare and
education, the fair and equitable distribution of such social goods is absolutely critical.
Access to such rights and benefits should not be confined to the chosen few nor to those
well connected with one or other locus of authority or power. Proper compliance with
the requirements of administrative justice thus becomes an essential element of a par-
ticipative democracy.
While this review function is typically seen historically as being part of the work of
the courts (judicial review of administrative action lies at the core of many African juris-
dictions), attention is increasingly being given to alternative means of securing admin-
istrative justice, such as ombuds-like institutions, appeals tribunals, standing commis-
sions which focus on human rights protection, open governance/ access to information,
legislative oversight of the executive branch of government, and so on. There is much
innovation in this sphere across the world, and increasing “borrowing” from other legal
systems, even including across the traditional common law / civil law divide. The world
is becoming a smaller place.
Within east and southern Africa, most states share a common background in legal
doctrine and institutions in this area of the law. Law reform has occurred over the past
20 years, but unevenly across these states. Many [South Africa, Malawi, Uganda, Kenya,
and Zimbabwe] have followed the pioneering example of Namibia, which constitution-
alised a right to administrative justice in its independence Constitution of 1990 (article
18). Such rights send out important signals both to the government and the citizenry,
but need structural expression and widespread implementation. Several of these states
have complemented the constitutional rights with Acts of Parliament which provide for
the definition and implementation of these rights in greater detail.
In any process of law reform, it is wise not to attempt to reinvent the wheel, while
always recognising that wholesale transplantation from one legal system to another
is rarely successful or a good idea. Nevertheless, it would be foolish to ignore similar
I ntroduction xi
initiatives in different parts of the world. There are essentially two major “families” of
administrative law in the world. One group consists of administrative law that is based
on the English common-law (and to be seen particularly in the countries of the British
Commonwealth, and to a much lesser and more distant extent in the United States of
America). The second group consists of administrative law that is based on the civil law
systems of continental western Europe, which in itself tends to be divided between those
based on the French and those based on the German model.
So there are many models to look at, but why has there been this high level of activity
in this area of the law? There are many reasons for this, but chief among them are the
growth of executive and administrative power within the nation state in the second
half of the 1900’s, the rising expectations among ordinary people that the state should
provide basic services (such as health, educational and social services), the state’s need to
regulate economic and social life, especially as urbanization gains pace among a rising
population, and the necessity for allocating considerable discretion to state officials to
empower them to provide services, but qualified by the need that they should be pro-
vided equitably, reasonably, transparently and fairly.
Ultimately, therefore, what is needed is a change of culture, towards greater
accountability.
Proposal
Against this background, it is argued that this is an appropriate moment to consider the
establishment of a network of administrative justice leaders drawn from most countries
in eastern and southern Africa, to take stock of the state of administrative justice in each
country and to consider common problems. Furthermore, such experts should consider
how they could both learn from each other and co-operate with each other to raise levels
of compliance with administrative justice standards.
Objectives and Outcomes
The objectives of this network should be:
• To research and write a series of reports on the state of administrative justice in each
of their jurisdictions, pointing particularly to problems and areas in need of review
and reform;
• To share their knowledge, in an endeavour to learn comparatively and to create a
common platform for the consideration of steps needed, both nationally and possibly
regionally, to attempt practically to develop mechanisms for the delivery of greater
levels of administrative justice among a wider pool of the citizenry of these parts of
the continent; and
• To draft and approve a Statement of Principles which could serve as an inspiration for
reform and an encouragement to those in authority (including judges and magistrates)
to take administrative justice seriously, as an essential means to raising the commit-
ment to the observance of human rights throughout the region.
The outcomes would be a position paper which responds to common problems and
draws on common themes; an approved Statement of Principles; a consolidated database
of knowledge in the field, widely accessible and trusted; and the publishing of an edited
book which would likewise be widely available through electronic means, as well as in
hard copy for limited distribution among opinion-makers within the law and the courts,
both in the region and beyond.
The Methodology
It is proposed that these objectives be achieved in three phases:
xii P ursuin g Good Governance
1. An initial gathering of about 24 experts, plus about six support staff, ideally in
August/September 2018, in one of the participant countries, perhaps Tanzania or
Malawi. Over three days, it is proposed that experts drawn from Botswana, Kenya,
Lesotho, Malawi, Namibia, South Africa, Tanzania, Uganda, Zambia and Zimbabwe
should present position papers on their own jurisdictions, and undertake to produce
further work according to an agenda for reform whose elements would be agreed
upon at that gathering.
2. From after this initial gathering, the realisation of the further work referred to above,
by the national experts leading small, informally-constituted “teams” who would
research and write the position papers, which should be completed by early 2019, and
consolidated on one website, for access by every member of the project.
3. A final gathering of the same group as initiated the project in step 1, in Lusaka,
Zambia, in March/April 2019, with the objective of agreeing on the content and
drafting of the Lusaka Principles for Administrative Justice, and in preparing the text
of the constituent chapters of the book referred to above, which would appear within
six months of the conclusion of this last event.’
While I intended to initiate the project during 2016, student protests and extensive
disruptions in higher education caused delays, due to my assuming temporary roles
in central university management for much of 2016 and 2017. The Foundation
proved to be very patient, and the first phase of the project described above took
place in Gaborone, Botswana, in late August 2018. The participants were as follows:
Botswana: Dr Bonolo Dinokopila, Head of Department of Law and Mr Gosego
Lekgowe, University of Botswana; Kenya: Professor Migai Akech, University of
Nairobi and Mr Cecil Yongo, Strathmore University; Lesotho: Associate Professor
Hoolo ’Nyane, University of Limpopo; Malawi: Associate Professor Fidelis (Edge)
Kanyongolo, Chancellor College, University of Malawi, Judge Redson Kapindu,
High Court of Malawi, and Professor Danwood Chirwa, University of Cape
Town (also South Africa); Mauritius: Professor Prakash Torul (unable to attend,
through ill-health); Namibia: Ms Yvonne Dausab, Chair, Namibian Law Reform
and Development Commission; South Africa: Professors Cora Hoexter, University
of the Witwatersrand and Hugh Corder, University of Cape Town and Dr Justice
Mavedzenge, University of Cape Town (also Zimbabwe); Uganda: Dr Ronald
Kakungulu and Dr Kabamba Busingye, Makerere University; Zambia: Ms Felicity
Kayumba Kalunga and Dr Obrien Kaaba, School of Law, University of Zambia;
Zimbabwe: Dr Admark Moyo; and a comparative scholar Chuks Okpaluba, Emeritus
Professor, University of Fort Hare, South Africa.
The report (revised and shortened for this purpose) of the proceedings at this
meeting was compiled by Dr Justice Mavedzenge of the University of Cape Town’s
Democratic Governance and Rights Unit. I reproduce it here as a matter of public
record, as some of the jurisdictions did not provide more detailed reports for the
second stage of the project as envisaged, and because in my view it provides at
least a useful framework for future research and even legislative reform, where
appropriate.
I ntroduction xiii
‘Report of the Workshop on Administrative Justice in East and Southern Africa,
held in Gaborone, Botswana, from 28 to 31 August 2018
1. Opening remarks
Professor Hugh Corder gave the following historical account of events that predated
this conference:
i. A similar conference had been held in 1996 under the theme “Administrative
Justice in Southern Africa”, following the “Breakwater Declaration” (emanating
from a conference in February 1993 held in Cape Town) which became the blue-
print for administrative-law reform in South Africa.
ii. In 2014, Corder, funded by the Konrad Adenauer Foundation (KAS), acted as a
consultant to the Law Reform and Development Commission of Namibia leading
extensive discussions on whether Namibia should adopt the South African
approach of enacting primary legislation to regulate the exercise of administra-
tive authority, and in providing greater detail to the broad and general grant of
the right to administrative justice in its Constitution.
iii. The founding of the Administrative Justice Association of South Africa in 2012,
which brought together in one body academic and practising lawyers in the field,
with senior public servants, was followed by national gatherings in 2016 and
2017, and this led to increased attention on administrative justice in the region.
iv. Professor Hugh Corder, working together with a team which comprises of
Professors Cora Hoexter, Danwood Chirwa, and Migai Akech, and Dr Justice
Alfred Mavedzenge, convened this gathering with the following objectives: (1) to
take stock of the state of the administrative law framework in the countries rep-
resented; (2) to bring experts together so that they can learn from each other and
engage critically on administrative justice issues; (3) to identify the most urgent
common challenges confronting administrative justice in the jurisdictions rep-
resented at the conference; and (4) to explore the relevance of alternative mech-
anisms for regulating the exercise of public power, as means for reducing the
over-judicialisation of administrative justice.
v. Professor Hugh Corder also highlighted that there was a need to discuss the
accessibility of mechanisms to achieve administrative justice, especially given
the socio-economic situation in most jurisdictions.
2. Jurisdictional introductions
Each country represented then presented a brief oral overview of the main features of
the administrative justice system as it pertained at the time.
2.1 Botswana
i. The right to just administrative conduct is not expressly guaranteed in the
Constitution or in any statute. Judicial review of administrative conduct is
performed in terms of the common-law
ii. There are alternative channels for judicial review of administrative conduct.
The primary avenue is the Ombudsperson’s office, which has the power to
review and give remedies in respect of cases of maladministration in general.
There is a variety of internal appeal mechanisms established in terms of spe-
cific legislation. These include the Public Service Commission (whose mandate
is to review disputes in terms of the Public Service Act), and disciplinary tribu-
nals set up in terms of the Police Act and the Prisons Act.
iii. The key challenges include the following: There is no law which expressly
gives individuals the right of access to information, and the absence of a
constitutional and statutory right to just administrative conduct means the
xiv P ursuin g Good Governance
standards of review are confined to those recognized in common-law princi-

ples including natural justice.
2.2 Kenya
i. There is a constitutional right to just administrative conduct and Parliament
has enacted the Fair Administration Act to give effect to that right.
ii. There are alternative channels for review of administrative conduct. There
are about 21 tribunals established in terms of specific Acts. The challenge
is rather that the people are unaware of these tribunals and how they can
use them to access justice. In addition to these tribunals is the office of the
Ombudsperson, whose recommendations are not binding.
iii. There is also a constitutional right of access to information held both by the
state and private persons.
iv. The biggest challenge is the lack of diligent implementation of the
Constitution.
2.3 Lesotho
i. The Constitution does not provide for a right to just administrative conduct,
nor does it provide for a right of access to information. Judicial review of
administrative action is on the basis of English common law (legality, ration-
ality and procedurally fairness, estoppel, and so on).
ii. Alternatives to judicial review include the Ombudsperson’s office, but its rec-
ommendations are not binding. There are tribunals established in terms of
specific legislation but there are numerous ouster clauses which make certain
decisions non-reviewable by these tribunals.
iii. Amongst the challenges are that in addition to/as a consequence of the
absence of the constitutional/statutory right to just administrative conduct
and access to information, the rules of standing to sue are strict. The legal
framework on administrative law is fragmented.
2.4 Malawi
i. There is a constitutional right of access to information and a constitutional
right to administrative justice which allow the courts to go beyond reviewing
on the basis of natural justice and common law. Rules of court procedure (for
example High Court rules) have been reformed to align with the Constitution.
ii. However, the challenge is that litigants continue to ignore this right and rely
on common- law principles of review.
iii. Alternatives to judicial review exist. They include the office of the
Ombudsperson, which deals with issues which cannot be remedied through
judicial review and whose decisions are binding. There are also specific legis-
lative tribunals which include environmental appeals tribunals, but the chal-
lenge is that people do not know about these tribunals. Some of the tribunals
exist only on paper.
iv. In addition to the above, one challenge is that the distinction between exec-
utive and administrative action is still unclear in the jurisprudence. There is
also a challenge regarding the extent to which decisions taken as part of indig-
enous law are reviewable under administrative law, and a further challenge is
the judicialisation of political issues.
2.5 Namibia
i. There is a constitutional right to administrative justice.
ii. There is no principal Act to facilitate the implementation of this right.
iii. As an alternative to judicial review there is the office of the Ombudsperson,
but this does not have enough human and material capacity to deliver
I ntroduction xv
administrative justice. There are specific tribunals set up in terms of legisla-
tion, for example Immigration tribunals, and so on.
iv. In addition to the above, the challenges include that the judiciary is often
accused of not making decisions that enhance social justice, and there is a
failure or refusal by government to comply with court decisions. In some
instances, the legislature has attempted to enact laws to reverse court deci-
sions, and poverty makes access to justice a huge challenge.
2.6 South Africa
i. There is a constitutional right to administrative justice, which was inspired by
Namibia and has now been exported to other jurisdictions. A principal Act to
implement that right also exists and is called the Promotion of Administrative
Justice Act (PAJA).
ii. Standing to sue is very broad in terms of s 38 of the Constitution, which has
to be read into the PAJA.
iii. Ouster clauses are effectively unconstitutional as there is a right of access to
court (section 34).
iv. The challenges include over-reliance on judicial review at the expense of
other avenues such as access to Information and the various State institutions
supporting constitutional democracy (the ‘Chapter 9’ institutions). Further,
administrative law is wrongly perceived as law for the elite, yet it is a tool
to fight for social justice. Access to administrative justice is undermined by
poverty and state capture. Thus, the legal framework looks sufficient on paper
but in practice it is not working well.
2.7 Uganda
i. Article 42 of the Constitution guarantees the right to apply for review of
administrative action. The grounds for review include legality, procedural
fairness, rationality and principles of natural justice.
ii. Alternatives to judicial review include the Ombudsperson and commissions of
inquiry as well as numerous tribunals established in terms of specific Acts.
iii. A key challenges is that the independence of the judiciary is compromised. In
addition, the rights to administrative justice and to a fair trial are conflated
by judges, as well as the common-law right to just administrative conduct
and the constitutional right to just administrative conduct, and yet there are
important practical differences between the two.
2.8 Zambia
i. In spite of a recent amendment to the Constitution, the Bill of Rights was not
amended and thus there is still no constitutional right to just administrative
conduct. However, the Constitution provides for principles of fair administra-
tive justice to be observed.
ii. There is also no constitutional right of access to information.
iii. Review of administrative conduct is on the basis of common-law rules and
principles.
iv. Alternatives to judicial review mainly consist of the Office of the Public
Protector, and administrative tribunals which are there to review cases of
maladministration.
2.9 Zimbabwe
i. The Constitution provides for a right of access to information as well as a
right to just administrative conduct. Notably, this right includes the right to
administrative conduct that is efficient and substantively fair.
xvi P ursuin g Good Governance
ii. There is a principal Act to give effect to the right to administrative justice.
However, the Act predates the constitutional right.
iii. Alternatives to judicial review include legislative tribunals as well as inde-
pendent constitutional commissions.
iv. Challenges include compromised judicial independence, lack of harmony
between the principal Act on administrative justice and the Constitution, a
plethora of ouster clauses and a fragmented legislative framework.
3. Relationship between the constitutional provision/foundation, statutes, the role of
the common law and separation of powers issues
A broad-ranging discussion was then held in plenary session on the above issues. The
following points emerged from the discussion:
i. Most constitutions entrench the principles of the rule of law, constitutional
supremacy and democracy, which are signposts of good governance. The area
that we need to emphasise more is that of constitutional values, which are meant
to make democracy meaningful. These values include accountability, responsive-
ness, openness, and public participation. These are not fundamental rights but we
need to engage with them and ask: what role do they play in advancing admin-
istrative justice? Standing to sue should be liberalized. Principles governing fair
public administration need to be entrenched.
ii. Are constitutional values helpful and whose values are they? These values have
been ignored in some jurisdictions, while in some they have played a meaningful
role. There is merit in including values in the constitution because over time the
courts will define what those values mean and this will impact positively on the
interpretation of the content of the rights enshrined therein. It is important to
ensure that these values are a true reflection of the values of the people.
iii. Is it necessary to enact statutes in addition to the constitutional right? Statutes
tend to be restrictive and therefore undesirable. However, some participants
argued that statutes are necessary as they provide valuable detail regarding
what is really expected from administrators. In South Africa, the Promotion of
Administrative Justice Act is narrow and complicated in its definition of admin-
istrative action and this has caused the courts to sidestep it and rather apply the
principle of legality.
iv. On the separation of powers: The critical question is not whether the judiciary
is competent to review decisions made by officials from other branches of gov-
ernment. The question is rather: how far should the judiciary go? That question
is likely to feature prominently in jurisdictions where administrative justice as a
right establishes “efficiency” as a standard of review.
v. In reality, the separation of powers often does not exist. In some jurisdictions, the
question is actually whether the judges should even engage in review as some of
the issues are heavily political and polycentric in nature.
4. The scope of judicial of review: lawfulness, procedural fairness and rationality/
reasonableness
The key issues that emerged from this plenary discussion are as follows:
i. As to procedural fairness, the gold standard should be the general duty to act
fairly. Procedural fairness continues to be determined by context, and this creates
some uncertainty regarding what this standard of review entails in reality. There
might be tension between the duty to act promptly and the duty to ensure pro-
cedural fairness. This could see further restriction of procedural fairness as a
ground.
I ntroduction xvii
ii. On reasonableness as a ground of review: ouster clauses and the reversing of the
onus are a challenge in some of the jurisdictions, such as Zimbabwe and Uganda.
iii. On lawfulness: In countries where there is no constitutional/statutory right to
administrative justice, the question that remains unanswered is how to challenge
the legality of decisions made by traditional chiefs.
5. Judicial review v non-curial safeguards and the role of media and civil society.
The key issues which emerged from this discussion are:
i. Alternative channels of accessing administrative justice remain useful, especially
given how expensive it is to access the courts. There is a need at both scholarly
and practical levels to work to understand and strengthen these institutions. For
example, empirical research is required on questions such as how many people
are using them, who is using them, how they are performing, and what resources
are being invested into these institutions.
ii. A concern, however, is the independence of these tribunals to apply the law and
deliver justice. In some jurisdictions the tribunals are too numerous, have dupli-
cated roles and are fragmented. Borrowing from labour law, where various forums
have been established to resolve labour disputes outside of judicial review, should
be considered.
iii. Changing the perception that administrative law disputes should always be judi-
cialised is a priority. This perception may have undermined the utilisation of the
alternatives. As has emerged from the updates on jurisdictions above, the existing
tribunals need greater resourcing.
iv. Apart from using tribunals, establishing “preventive measures” within the legal
framework, such as requirements for public participation, is needed to ensure
safeguards against maladministration.
v. Independent constitutional commissions are an important alternative avenue.
One of the issues to be worked on is whether these institutions have binding
authority. This kind of conversation needs to take place at a local level and also
to penetrate the university curriculum, so that equal attention is paid to these
alternatives.
vi. Governments ought to be challenged to put out information to the public in
order to raise public awareness of these internal appeals. People with knowledge
of administrative law should step in and make use of the media, including social
media, and civil society organisations, to push for justice and to counter malad-
ministration. In some jurisdictions, however, the media are not really interested
in “non-political and non-sensational” issues.
6. The way forward
6.1 AdJESA: There was general support for establishing the Administrative Justice
Association for East and Southern Africa (AdJESA). Such a platform would make it
possible to continue with critical conversations on this subject in a more sustain-
able manner. It will enhance networking and information-sharing. It should not
be made up of academics only but also practitioners, and all those active in the
administrative justice sector. Participants should canvass this idea in their coun-
tries and establish country chapters. Such structures are relatively simple to estab-
lish, but the real challenge is to keep them vibrant and effective. Questions were
asked along these lines: What would AdJESA do? How often would its members
gather? Would it publish a newsletter? How would it be financed? Prof Corder
agreed to circulate a draft constitution for the AdJESA at least two months before
xviii P ursuin g Good Governance
the next meeting, in order to allow those present to canvass the idea widely
within their domestic context, and bring responses to the next meeting.
6.2 Drafting national reports from each jurisdiction represented: Participants from
each country should come together with interested parties from their national
jurisdiction and jointly prepare a paper (maximum of 8 000 words) covering
broadly the following areas/questions, where relevant, which would be presented
at the next conference:
a) A culture of accountability
i. The role of administrative justice in a participatory democracy and in
enhancing socio-economic rights.
ii. A choice to make: imposing an obligation on the public administration v
granting enforceable rights to administrative justice to every individual in
the state--- or maybe this is not a choice, but both could be pursued?
b) Issues within judicial review:
i. The exercise of public power should definitely be subject to administrative
review, but what about “privatised” public power, and even private power
itself?
ii. What is and should be the enduring role of the (English) common law in
the context of either a constitutional right or a statute, or both?
iii. What is the appropriate role of the judicial branch of government, in
relation to the executive, under your understanding of the separation of
powers? Ideally, the concept of deference as mutual respect should be the
guideline.
iv. What constitutional role does Parliament have as “oversight” mechanism
(of the exercise of public power)?
v. In relation to the grounds of review, how are flexibility of administrative
discretion and the uncertainty of the meaning to be given to concepts like
lawfulness, procedural fairness and reasonableness, to be balanced?
vi. What progress has been made in developing novel remedies, including
awarding compensation for unlawful administrative decisions?
vii. Should there be norms and standards for rulemaking and rule application?
viii. What about the role of indigenous law in administrative law/justice?
c) Alternatives to judicial review
i. How binding in law or public perception are the recommendations made
by ombudsman-type bodies, including human rights commissions?
ii. What mechanisms are/should be in place to encourage full public
participation?
iii. What administrative appeals and review tribunals exist? Are they effec-
tive? Should other administrative tribunals be established? What resources
are being invested, appointments processes, etc.
iv. What measures should be taken to enhance access to information?
v. Is the establishment of a separate administrative court structure, or even
a special division of the existing high court structure, a desirable way
forward?
vi. What measures need to be taken to educate and train both judicial officers
and every member of the public administration in the principles and prac-
tices of administrative justice?’
I ntroduction xix
As is sometimes the case, ambitious plans and good intentions are insufficient to
ensure the timeous completion of the next phase of a project, in this case the
completion of the ‘country reports’, and their circulation in advance of the second
meeting of this interest group, which was scheduled for mid-2019. While several
participants diligently met the deadlines communicated, some were unable to
do so, despite substantial allowances for late submission. Regrettably, therefore,
KAS decided that it could not continue financial support, but graciously agreed to
sponsor the publication of those papers which had indeed been submitted. Hence
this book.
Each of the chapters has been subjected to blind peer review by two senior
administrative law scholars in the region, and their comments have been incor-
porated. Dr Mavedzenge has been primarily responsible for the editing of these
chapters to seek to secure a degree of compliance with a common approach to the
topics and house style, although there are inevitably variations in the degree of
attention given to some aspects rather than others, dependent on the conditions
in each jurisdiction. The hope is that this will be the start of greater knowledge of
the administrative justice institutions, structures and landscape within most of the
Commonwealth countries in the regions and that, having co-operated on this joint
venture, future occasions for sharing experiences and ideas among administrative
lawyers and public servants will be more feasible. AdJESA has not been formed, but
the foundation for greater levels of joint work exists. At the very least, these con-
tributions highlight the points of strength as well as the many challenges which
confront the achievement of a better state of administrative justice in the seven
countries surveyed.
Finally, I would like to thank all the participants in the first meeting, and those
who followed through by writing and submitting their reports which have become
the chapters in the rest of this book; Dr Arne Wulff and Mr Peter Wendoh of KAS
for their support for this project, and Ms Clara Arzberger, an intern at KAS who
attended the Gaborone gathering, and assisted with recording the discussions. My
co-editor, Justice Mavedzenge, has been a constant source of cheerful and efficient
assistance; it has been a pleasure to work with him: I am greatly in his debt.
Chapter 1
The State of Administrative Justice

in Lesotho
HOOLO ’NYANE*
ABSTRACT
Administrative law in Lesotho, like consti- country. Nevertheless, there is an unpleasant
tutional law, is pre-eminently based on the fluidity and inconsistency in the manner in
English common law. That notwithstand- which superior courts in Lesotho apply var-
ing, the usual influence of South African ious aspects of judicial review in the area of
law cannot be underestimated. Although the administrative law. In the majority of cases,
1993 Constitution of Lesotho was adopted courts feel constricted by the narrow English
in the same year as the South African law-based doctrine of ultra vires which is ani-
Interim Constitution which provided for the mated by the ‘intention-of-parliament’ prin-
right to administrative justice, the Lesotho ciple. This ‘weak’ model of judicial review is
Constitution does not provide for the right the major shortfall of administrative law in
to administrative justice. The Constitution Lesotho. The purpose of this chapter, there-
provides for a bifurcated human rights struc- fore, is to evaluate the state of administra-
ture wherein human rights are put into two tive justice in Lesotho. Using the scoping
categories —
social and economic rights on approach, the chapter evaluates major king-
the one hand, and civil and political rights pins of administrative justice such as the
on the other. The social and political rights Constitution, judicial review, ouster clauses
are non-justiciable while political rights are and the role of extra-curial institutions like
legally enforceable. The country does not have parliament and the office of the ombudsman.
a statute specifically codifying administrative The ultimate contention is that the country
law. As a result, judicial review has occupied must introduce the right to administrative
the central stage as the single most important justice in the Constitution and operationalise
cornerstone of administrative justice in the it through a statute.
1. INTRODUCTION
Administrative law in Lesotho is, to a very great extent, based on the common
law.1 Nevertheless, sporadic pieces of legislation have started to emerge on various
aspects of administrative law such as the rules of natural justice.2 The common law
applicable in Lesotho is the Roman-Dutch law since 1884 when the country was

* LLB (Lesotho) LLM(NWU) LLD(UNISA). Associate Professor and Head of Public and Environmental
Law, University of Limpopo.
1
There is no statute dedicated to codifying administrative law in Lesotho.
2
Statutes like the Lesotho Police Act 7 of 1998 and Lesotho Defence Act 4 of 1996 already have rules
of natural justice inbuilt within their disciplinary provisions.
1
2 P ursuin g Good Governance
dis-annexed from the Colony of the Cape of Good Hope.3 When this happened,
the law that was to be applicable in Lesotho was to be the law that would ‘as nearly
as the circumstances of the country will permit, be the same as the law for the time
being in force in the Colony of the Cape of Good Hope’.4 The common law that was
applicable in the Cape was the Roman-Dutch common law.5 As such, the common
law that was to apply in Lesotho, despite the resumption of direct rule on Lesotho
(then Basutoland) by England,6 was to be Roman Dutch law. When the country
became independent in 1966, the common law of the country remained the same;
and it remains so even under the current Constitution.7 However, administrative
law remains one of the branches of the law in Lesotho, perhaps like constitutional
law, that are still immensely based on the English jurisprudence.
When Lesotho became independent from Britain, most of the British constitu-
tional conventions were codified into the independence constitution. As Palmer
and Paulter pointedly capture it, ‘one of the distinctly English contributions to the
Constitution of Lesotho is the transplantation of many of its constitutional con-
ventions into the corpus of the instrument.’8 Despite the huge influence that the
South African law has had on Lesotho law generally,9 constitutional law and admin-
istrative law — due to strong English influence — remain largely British-based. In
recent times, one of the contributing factors for Lesotho’s over-reliance on English
administrative law rather than South African administrative law is that the latter
has advanced in two fundamental respects. Firstly, South Africa has provided for
the right to administrative justice in its constitution10 and, secondly, it has codified
its administrative law into one organic statute.11 These two fundamental advance-
ments in contemporary South African administrative law have rendered it not to be
the most preferred comparative point of reference for the development of admin-
istrative law in Lesotho. It is important to note, though, that prior to the current
new dispensation in South Africa, Lesotho used to draw immensely from South
3
James Beardsley ‘The common law in Lesotho’ (1970) 14 Journal of African Law 198; Sabastian
Poulter ‘The judicial system of Lesotho’(1970) 3 The Comparative and International Law Journal
of Southern Africa 63; Winston Maqutu and Antonius Sanders ‘The internal conflict of laws in
Lesotho’ (1987) The Comparative and International Law Journal of Southern Africa 377; Antonius
Sanders Internal conflict of laws in South Africa (1990).
4
General Law Proclamation 2B of 1884, Sec 2; see also Sabastian Poulter ‘The common law in
Lesotho’ (1969)13 Journal of African Law 127.
5
John Pain ‘The reception of English and Roman Dutch law in Africa with reference to Botswana,
Lesotho and Swaziland’ (1978) XI The Comparative and International Law Journal of Southern Africa
137.
6
Lehlohonolo Machobane ‘Perceptions on the constitutional future for the Kingdom of Lesotho
(1988) 26(2) The Journal of Commonwealth & Comparative Politics 185.
7
See the Constitution of Lesotho, 1993.
8
Vernon Palmer and Sabastian Poulter The Legal System of Lesotho (1972) 305.
9
Lesotho shares the Roman-Dutch common law with South Africa. See Beardsley (supra note 3)
198; Palmer and Poulter (Ibid 127). However, the development of common law in South Africa
is much more advanced than in Lesotho and Lesotho depends on advancements is South Africa
disproportionately.
10
See s 33 of the Constitution of South Africa, 1996.
11
Promotion of Administrative Justice Act 3 of 2000.
T he S tate of A dministrative J ustice in L esotho 3
African common and case law on administrative law. In fact, the superior courts in
Lesotho invariably relied on cases from South Africa so much that it can safely be
argued that to a certain extent Lesotho and South Africa shared a common law on
administrative law prior to the 1993 Interim Constitution of South Africa.
As Lesotho is still not yet so advanced as South Africa on alternative avenues of
redress against administrative injustice, the doctrine of judicial review remains the
single most important bedrock of administrative justice. The country follows the
predominantly ‘weak’ model of judicial review due, in large part, to its Westminster
pedigree which has strong affinities with the notion of parliamentary sovereignty.12
The notion of parliamentary sovereignty is known for its animosity towards any
form of check on the power of parliament. It is captured crisply by British writers
Allan and Thomson thus: ‘In some countries … the judges are permitted to review
legislation in order to establish whether it complies with the … constitution. In the
United Kingdom, the absence of a written constitution with the status of a high law
and the doctrine of parliamentary supremacy prevent the judge from exercising
this role.’13
The purpose of this chapter is to survey the state of administrative justice in
Lesotho, through assessing the development of judicial review as the bedrock of
administrative justice in that country. In the end, the paper contends that Lesotho
needs to have a constitutional right to administrative justice and codification (stat-
utorisation) of administrative law.
2. CONSTITUTIONAL BASIS FOR ADMINISTRATIVE JUSTICE

The current Constitution of Lesotho was adopted in 1993 after a long period of dic-
tatorship that spanned the period 1970–1986 and government by the military that
lasted from1986 to 1993.14 Thus, the post-independence history of Lesotho is punc-
tuated by a lack of constitutionalism and a weak version of administrative justice.15
When the country returned to constitutional democracy in 1993, an opportunity
was missed to bridge the gap between the past characterised by weak rule of law,
lack of constitutionalism and weak human rights record and the future based on
12
Alon Harel and Adam Shinar ‘Between judicial and legislative supremacy: A cautious defense
of constrained judicial review’ (2012) International Journal of Constitutional Law 950–953 where
the authors contend that the jurisdictions including the UK, Canada, New Zealand, and several
states and territories of Australia have adopted schemes that can be characterized as forms of
‘constrained judicial review’. They contend further that under American style, ‘judicial review
[is] also known as strong judicial review. Under that view, the judiciary is the ‘ultimate expos-
itor’ of constitutional meaning, having the final say over constitutional interpretation’. See also
Kenneth Arenson ‘Rejection of the power of judicial review in Britain’ 1996 Deakin Law Review
37.
13
Michael Allen and Brian Thomson Cases and Materials on Constitutional and Administrative Law
(2008) 541.
14
Tefetso Mothibe ‘Lesotho: The rise and fall of military-monarchy power-sharing 1986–1990’
(1990) 20(4) Africa Insight 242.
15
Khabele Matlosa and Neville Pule ‘The military in Lesotho’ African Security Review (2001) 10(2) 62.
administrative accountability, rule of law and strong constitutionalism.16 Instead,

the new Constitution became more of the replica of the Westminster-based inde-
pendence constitution.17
The key values which underpin administrative justice such as the rule of law,
separation of powers and accountability are not expressly provided for in the
Constitution. The judiciary has been smart enough to infer them from certain
provisions of the Constitution. For instance, in the case of Attorney General v
Swissbourgh Diamond Mine,18 the Court of Appeal affirmed that the rule of law is
part of the constitutional edifice of Lesotho. In that case, the court said,
No government, however powerful be its military arsenal, however awesome its police
power and, indeed even however popular be its actual or perceived support among the
populace at any given time in its history, dare be permitted to invade such fundamental
rights, however humble, however impotent, be the victim of such transgressions; that
the courts will fiercely protect such a citizen against the invasion of his rights …19
This formulation has laid the firm foundation for rule of law and legality in Lesotho.
In the subsequent cases, the superior courts in Lesotho have inferred the rule of law
and legality from the Constitution of Lesotho.20
In a similar manner, the courts have inferred the doctrine of separation of
powers to be a part of the constitutional edifice of Lesotho.21 However, the extent
to which the courts are prepared to enforce separation of powers is a matter of
considerable controversy. For instance, in the case of Sekoati v President of the Court
Martial22 the Court of Appeal confirmed that while separation of powers is the
bedrock of constitutionalism in Lesotho, the country embellishes the partial as
opposite to the purist model of separation of powers. This is the case in which
the military mutineers were challenging the propriety of allowing the Minister
responsible for Defence to appoint the Court Martial. Their contention was that
16
Hoolo ‘Nyane, ‘Development of the Constitution of Lesotho since independence: The critique
of Westminster design in Lesotho’ in Tumelo Tsikoane (Ed) Lesotho at Fifty Years of Independence:
Aspects of Chequered Development Journey pp 121–139.
17
Hoolo ‘Nyane ‘Development of constitutional democracy: 20 years of the Constitution of
Lesotho’ (2014) 21 Lesotho Law Journal 59–88.
18
LAC 1995–99 at 214.
19
Ibid 224E–G. This formulation of the rule of law was made by Mahomed P in Lesotho in 1996.
The same formulation was made by him sitting in the Supreme Court of Appeal of South Africa
in 1999 in the celebrated decision in the case of Speaker of the National Assembly v De Lille 1999
(4) SA 863. The learned judge said, ‘The constitution is the ultimate source of all lawful authority
in the country. No parliament, however bona fide or eminent its membership, no President
however formidable be his reputation or scholarship and no official, however efficient or well
meaning, can make any law or perform any act which is not sanctioned by the constitution.
Any citizen adversely affected by any decree, order, or action of any official body, which is not
properly authorised by the constitution is entitled to the protection of the courts.’
20
Lesotho Police Staff Association (LEPOSA) v Commissioner of Police CIV/APN/18/2018 (Unreported).
21
Khathang Tema Baitsukuli v Maseru City Council C of A (CIV) No 4 of 2005 https://lesotholii.org/ls/
judgment/high-court/2005/74, accessed on 1 January 2019; The Law Society of Lesotho v. The Prime
Minister 1985–89 LAC 129; Judicial Officers’ Association of Lesotho v Right Honourable the Prime
Minister Pakalitha Mosisili (Constitutional Case No. 3/2005 https://lesotholii.org/ls/judgment/
high-court/2006/150, accessed on 15 January 2019.
22
LAC (1995–1999) 812.
the Minister is a member of the executive and therefore should not be permitted to
appoint the Court Martial. The court dismissed that contention and decreed that,
An absolute separation of a given tribunal from the executive or legislative branches is
impossible, the question is: what degree of interference is permissible in terms of the
Lesotho Constitution? In our judgment in the context of a military tribunal established
under the Constitution which contains a section such as section 24(3), it is acceptable
that the convening authority and the confirming authority should be vested with the
powers conferred upon them by the Act and the Rules.23
Furthermore, the Constitution of Lesotho embodies a bifurcated model of human
rights. The human rights are divided into socio-economic rights (styled as princi-
ples of state policy) and political rights (styled as fundamental human rights and
freedoms).24 The former rights are not justiciable while the latter are considered
justiciable.25 Administrative justice is not envisaged as a right in the Bill of Rights.
Instead, equality and justice appear in the Constitution as ‘principles of state
policy’ and thus unenforceable.26
The Constitution has a supremacy clause which usually becomes the safety
valve against arbitrariness and administrative overzealousness.27 The supremacy
clause notwithstanding, the country appears to be still entrapped within the
British predisposition towards parliamentary sovereignty. This approach has been
adopted by the High Court in the cases of Khaketla v Honourable Prime Minister28 and
Tsang v Minister of Foreign Affairs (Tsang).29 In Tsang, the High Court, rather bizarrely,
opined that ‘[t]he law of Lesotho is the same as the law of England and Republic
of South Africa. An Act of Parliament is supreme. Once it has been properly passed
by the Military Council the courts must give effect to it’.30 Conversely, the Court
of Appeal in the case of Attorney General v Swissbourgh Diamond Mine31 held a dif-
ferent view thus: ‘the doctrine of parliamentary sovereignty, which had its origin
in English law … never properly became part of the common law of South Africa
23
Ibid 21.
24
Civil and political rights are located in Chapter II while social and economic rights are located
in Chapter III and are styled ‘Principles of State Policy’.
25
Section 25 of the Constitution provides that,
The principles contained in this Chapter shall form part of the public policy of Lesotho. These
principles shall not be enforceable by any court but, subject to the limits of the economic
capacity and development of Lesotho, shall guide the authorities and agencies of Lesotho,
and other public authorities, in the performance of their functions with a view to achieving
progressively, by legislation or otherwise, the full realisation of these principles.
26
Section 26(1) of the Constitution provides that, ‘Lesotho shall adopt policies aimed at promoting
a society based on equality and justice for all its citizens regardless of race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status’.
27
See s 2 of the Constitution of Lesotho, 1993.
28
Khaketla v The Honourable Prime Minister CIV/APN/145/85 https://lesotholii.org/ls/judgment/
court-appeal/1985/118, accessed on 15 January 2019.
29
Tsang v Minister of Foreign Affairs 1993–94 LLR-LB 45 (HC).
30
Ibid 60.
31
Supra note 18.
or Lesotho and that it had merely been imposed and maintained as a matter of
political expediency …’32
It can therefore be safely argued that due to the supremacy clause and the
finding of the Court of Appeal in Swissbourgh Diamond Mine, the parliamentary
sovereignty construct is really not part of Lesotho’s constitutional law.
3. JUDICIAL REVIEW
(a) Theoretical basis of judicial review in Lesotho
In view of the weak constitutional basis for administrative justice in Lesotho, judicial
review has become the most important lever of administrative justice. The model of
judicial review followed in Lesotho is pre-eminently based on the English theory of
judicial review. Under the Westminster-based models, the court’s power of review
is limited to the way in which the power conferred by Parliament is exercised, oth-
erwise known as the doctrine of ultra vires.33 That is basically judicial review in the
administrative-law sense; ‘the power of the courts to scrutinise and set aside admin-
istrative decisions on the basis of certain grounds’34 or ‘intention-of-parliament’
model. This model is located within the overarching British constitutional theory of
parliamentary sovereignty which posits that there is no ‘judicial or other authority
having the right to nullify an Act of Parliament, or to treat it as void or unconstitu-
tional’.35 The work of the court is to search for the intention of parliament and give
effect to it. The maiden case of this approach in Lesotho is Khaketla v The Honourable
Prime Minister.36 The court in casu remarked that in terms of Lesotho’s constitutional
law, ‘however unjust, arbitrary or inconvenient any legislation may be, it must be
given its full effect. It is not the province of the Court to scan its wisdom or policy
and the Court must take the statute as it finds it’.37
Although sometimes the Parliament may not have given the courts express
powers of review, the underlying theoretical presupposition is that Parliament
‘cannot have intended to give administrative agencies the freedom to exceed or
abuse their powers, or to act unreasonably.’38
32
Ibid 225.
33
See Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111. The over-
riding justification for judicial intervention is the doctrine of ultra vires — The doctrine that
power (vires) must be exercised within the confines of the law set out by parliament. As Hoexter
pointedly contents at 111,
The doctrine … is tied to constitutional fundamentals associated with the Westminster system:
separation of powers, parliamentary sovereignty and the rule of law … The legislature is the
supreme lawmaker, while the function of the courts is to apply the law made by it.
34
Cora Hoexter Administrative Law in South Africa 1st ed (2007) 109.
35
Albert Venn Dicey Introduction to the Study of the Law of the Constitution 8th ed (1915) 85.
36
Khaketla v Honourable Prime Minister (CIV/APN/145/85).
37
Ibid 19.
38
Peter Cane Administrative Law (2004) at 405 where the author criticises the ‘intention-of-par-
liament’ justification for judicial review in three fronts. Firstly, that the process of interpreting
the statutes is not always about the intention of parliament; it involves a lot more. Secondly,
judicial review is more of a mechanism through which the courts exercise control than a mere
corollary of parliamentary sovereignty. Its contend and the remedies provided are more of the
Judicial review in the constitutional designs that follow the American model rep-
resents a somewhat different approach. Since the decision in Marbury v Madison,39
the American model of judicial review has been growing in leaps and bounds, to
the extent that it has even taken on the form of being a threat to majoritarian-
ism.40 Some scholars have even dared to call it the basis for ‘judicial supremacy’.41
The American model is anchored in ‘strong review’; that ‘the judiciary is the ‘ulti-
mate expositor’ of constitutional meaning, having the final say over constitutional
interpretation’.42
In Lesotho, courts have invariably pronounced that the model of judicial review
is English-based.43 The judicial policy in Lesotho to follow the Westminster model
of judicial review may be seen to be at variance with the central theory of the
Constitution of Lesotho. The Constitution of Lesotho, despite its historical pedi-
gree from the Westminster system, is written and it is supreme.44 That clearly puts
Lesotho’s design in sharp contrast to the English design.45 The resort to the English
model of judicial review may be justifiable on the basis that English administrative
law in general is a convenient reference point for the majority of Commonwealth
countries that have not yet ‘statutorised’ their administrative laws.
(b) The scope of judicial review

Although judicial review is such an important tool of public law in general and
administrative law in particular, it is not limitless. The courts of law in Lesotho
have limited the scope of judicial review under` mainly two heads; firstly, by con-
sistently distinguishing it from appeal. Secondly, by limiting reviewability — the
decisions that may be reviewable and those that may not.
On the distinction between review and appeal, the courts in Lesotho assidu-
ously follow the dictum of Lord Brightman in the case of Chief Constable of the North
creatures of the judiciary than parliament. Thirdly, judicial review has grown beyond statutory
organisations. Even organisations or institutions that are not necessarily created by parliament
have in recent times become the subject of judicial review.
39
Marbury v Madison 5 US (1 Cranch) 137 (1803).
40
Jeremy Waldron ‘The core of the case against judicial review’ (2006) Yale Law Journal 1346;
Alexander Bickel The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1986) at
16–17 contends that,
[J]udicial review is a counter-majoritarian force in our system. … [W]hen the Supreme Court
declares unconstitutional a legislative act … it thwarts the will of representatives of the actual
people of the here and now …
41
Harel and Shinar (supra note 12).
42
Harel and Shinar (supra note 12) 953.
43
In the case of Law Society of Lesotho v Ramodibedi (Constitutional Case No. 1 of 2003) Maqutu J
at para 7 said,
It seems to me that the present constitutional dispensation is a continuation of a tradition that
Lesotho has inherited from Britain. Time and time again when constitutional problems arise
Britain is our first reference point.
44
The courts in Lesotho have had countless occasions where they have either nullified the Acts of
Parliament or reviewed the decisions of parliament itself.
45
The Constitution of Lesotho has largely codified the British constitutional conventions.
Wales Police v Evans,46 that ‘judicial review is concerned, not with the decision,
but with the decision-making process’.47 The flagbearer of Lesotho’s approach on
the matter is the recent decision of the Court of Appeal in the case of Raphuthing
v Chairman of the Disciplinary Hearing 48 where the court reaffirmed that ‘except in
exceptional circumstances, review proceedings are not concerned with the merits
of the case but with correcting erroneous decision-making. If a public body exceeds
its powers, the court will exercise restraining influence.’49
While the distinction between appeal and review appears straightforward in
theory, in practice it has not been that easy. The elasticity of the grounds of judicial
review have, almost invariably, defied the traditional boundaries between these
two concepts. Courts often invoke grounds such as unlawfulness and irrationality
to overturn decisions of administrative decision-makers on review.
Another traditional limiting factor for judicial review has been the categorisa-
tion of decisions into executive, administrative or quasi-judicial. This categorisa-
tion suggested that judicial review may not be invoked on a decision that is purely
executive. In contemporary practice in Lesotho, this categorisation is no longer
of any consequence. The most recent decision of the Court of Appeal which shat-
tered these traditional boundaries is the case of The President of the Court of Appeal
v Prime Minister.50 The case was concerned with the reviewability of the decision
of the Prime Minister to appoint the tribunal to investigate the impeachability of
the President of the Court of Appeal. It was argued on behalf of the Prime Minister
that the decision was not reviewable because it was purely executive. The Court of
Appeal disagreed and held that ‘it is the adverse effect of the decision of the public
official on the rights of the individual, and not the classification of that act as
administrative, that gives rise to the presumption of the requirement of fair proce-
dure’.51 This approach had earlier been taken in Commander of the Lesotho Defence
Force v Mokoena 52 where the decision of His Majesty the King was reviewed and
46
[1982] 3 ALL ER 141.
47
At 154d.
48
C of A (CIV) 45/2014. Nevertheless, within the labour disputes, the lines between review and
appeal are very blurry. This is due to the legislation that establishes the labour courts in Lesotho.
For instance, s 228F The Labour Code Amendment Act 3 of 2000 for instance, provides that ‘the
[Labour Court] may set aside an award on any grounds permissible in law and any mistake of law
that materially affects the decision’ (emphasis supplied). Practically, this section has meant that
anybody who is dissatisfied with the arbitral awards of the Directorate on Dispute Prevention and
Resolution(DDPR) takes them ‘on review with the Labour Court. See the Labour Appeal Court
Decision in the case of Mohlobo v Lesotho Highlands Development Authority LAC/CIV/A/2/2010
https://lesotholii.org/ls/judgment/labour-appeal-court/2011/2/mohlobo_judgment_pdf_19818.pdf,
accessed on 26 January 2019.
49
Para 13.
50
C of A (CIV) 62/2013.
51
2000–2004 LAC 539 at para 14. The court also followed the South African decision in Attorney
General, Eastern Cape v Blom 1988 (4) SA 645 (A).
52
C of A (CIV) 12/2002 https://lesotholii.org/ls/judgment/court-appeal/02-111, accessed on 26 January
2019.
set aside, and the case of Matebesi v Director of Home Affairs53 which concerned the
decision to transfer a civil servant that was equally reviewed and set aside.
Thus, it becomes apparent that the scope of judicial review in Lesotho will con-
tinue to be elastic regard being had to the fact that it exists within the common-law
framework. Its scope will largely depend on case law. The greatest concern, however,
is that the courts (particularly superior courts) have been inconsistent in their
interpretation of the scope of administrative law review.
(c) Grounds of judicial review

On the matter of grounds of administrative review, the superior courts in Lesotho
follow the trilogy of the grounds as laid out by the House of Lords in the case of
Council of Civil Service Unions (CCSU) v Minister of the Civil Service (CCSU). 54 In this
case, Lord Diplock laid out the three grounds of judicial review to be ‘illegality’,
‘irrationality’ and ‘procedural impropriety’. Since the trilogy was developed within
the English common-law context, the court still properly forewarned that ‘that
is not to say that further developments on a case by case basis may not in the
course add further grounds’.55 The influence of this case in Lesotho has been phe-
nomenal. In fact, the Court of Appeal in the case of Muyanja v Morate High School
Board56 remarked that ‘the High Court … retains the inherent review power under
the common law … on the well-known grounds of illegality, irrationality and pro-
cedural impropriety as laid down in the seminal case of Council of Civil Service
Unions v Minister for the Civil Service.’57 As the court in the CCSU case instruc-
tively pointed out that the list of the heads for judicial review is not exhaustive,
the superior courts in Lesotho have also adopted the other grounds as they evolved
in other jurisdictions, mainly in Britain and South Africa. The other grounds that
have taken root in Lesotho are ‘proportionality’ and ‘legitimate expectation’. The
succeeding discussion will highlight how each ground has evolved in Lesotho.
(i) Illegality
This ground is the most common ground of review in Lesotho as it is underpinned
by the classical doctrine of ultra vires. It may be expected that this ground will
continue to evolve, particularly within the ambit of the broader doctrine of the
rule of law and legality. Nevertheless, in its classical sense it is intended to gen-
erally guard against unlawfulness in administrative practice. Unlawfulness may
take several forms such as, but not limited to: a) an administrative functionary
exceeding jurisdictional competence by purportedly exercising the powers it does
not have; b) by not directing itself properly in law; c) by delegating the statutory
powers without express authorisation; d) by failing to fulfil the statutory duty; and
53
1997–98 LLR 455.
54
[1985] AC 374.
55
Ibid.
56
C of A (CIV) No.40/11 https://lesotholii.org/node/3296, accessed on 27 January 2019.
57
Ibid para 10.
e) by interference with fundamental rights and other constitutionally guaranteed

rights.58 The superior courts in Lesotho have invoked this ground under several
circumstances. Invariably, the courts have used this ground to quash the delegated
legislation that had been promulgated without proper authority.59
(ii) Irrationality
The nature of this ground in Lesotho is yet to be extrapolated by the courts.
However, it is not hard to fathom that its nature is based on the how it has evolved
under English administrative law. In England, the judiciary is divided on whether
this ground is unreasonableness or irrationality. In the case of Provincial Picture
Houses v Wednesbury Corp,60 the court referred to it as ‘unreasonableness’. In the
CCSU case, the House of Lords suggested that the two are synonymous. The court
said that, ‘by irrationality 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 accepted moral standards that no sensible person who had
applied his mind to the question … could have arrived at it.’61
The Court of Appeal had an occasion to apply this ground in the case of Mareka
v Commander of Lesotho Defence Force.62 In this case the appellants sought the review
of the decision of the Minster of Defence to establish the Court Martial to try them
for alleged mutiny. Their contention was that the decision was irrational because,
inter alia, it was made prematurely as it was the intention of the Government of
Lesotho to establish a commission to enquire into the veracity of the charges laid
against them. They argued that charges should only have been instituted after, and
if, the commission established that the charges were based on accurate allegations.
The court declined to grant review on the basis of this ground. The basis of the
court’s finding was that the alleged ‘irrationality’ does not pass the Wednesbury
test. In terms of this test the decision must be ‘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.’ 63 This formulation is in
keeping with the old formulation in the South African case of Union Government
v Union Steel Corporation,64 that unreasonableness on its own is not a sufficient
ground for review. The unreasonableness must be so gross that something else
58
See Allen and Thomson (supra note 13). See also the House of Lords decisions in Anisminic v
Foreign Compensation Commission [1969] 2 AC147; Wheeler v Leicester City Council [1985] AC
1054; Padfield v Minister for Agriculture, Fisheries and Food [1969] AC 997.
59
The Law Society of Lesotho v The Chief Justice (CIV/APN/149/2010) https://lesotholii.org/ls/judg-
ment/high-court/2012/6/, accessed on 27 January; Chalatse v The Acting Chief Justice C of A CIV
/63/2014 https://lesotholii.org/ls/judgment/court-appeal/2015/19/, accessed on 27 January 2019;
Commander, Lesotho Defence Force v Mareka C OF A (CIV) 27/15 https://lesotholii.org/ls/judgment/
court-appeal/2015/23/, accessed on 21 January 2019.
60
[1948]1 KB 223.
61
Ibid 590.
62
C of A (CIV) NO.52/2016. See also the case of Koatsa v National University of Lesotho LAC (1985–
1989) 335.
63
Ibid para 20.
64
1928 AD 220.
must be inferred from it such as mala fides, ulterior motive or failure to properly
apply one’s mind.
Although the test appears objective, in practice it admits of subjectivity. It
largely depends on the judge being presented with it as the basis for seeking judi-
cial review. Perhaps, this is one of bases for the argument sustained in this chapter
that the problem of subjectivity and elasticity may be mitigated by codifying these
grounds of review in a statute.
(iii) Procedural impropriety

The sense in which the court used ‘procedural impropriety’ in the CCSU case is
double-pronged. Firstly, it relates to failure to observe the common-law rules of
natural justice or procedural fairness. Secondly, it relates to failure to observe pro-
cedural rules that have been laid down expressly by the statute ‘even where such
failure does not involve any denial of natural justice’.65 A good part of Lesotho’s
administrative litigation is based on this ground, particularly the violation of the
rules of natural justice; namely, audi alteram partem (right to be heard) and nemo
judex in causa sua (rule against bias).66 While initially the superior courts were par-
ticularly rigid about the application of the rules of natural justice,67 they have since
joined a discernible movement both in England and South Africa away from an
inflexible application of the rules of natural justice to the requirement of fairness
based on a consideration of all the circumstances of each case. The flagbearer of
this movement is the fairly old decision of Russell v Duke of Norfolk68 where the
court emphatically showed that ‘the requirements of natural justice must depend
on the circumstances of the case … Accordingly, I do not derive much assistance
from the definitions of natural justice which have been from time to time used’.69
In Lesotho the trailblazer for this movement is the Court of Appeal decision in
the case of Matebesi v Director of Immigration (Matebesi ).70 Matebesi was later followed
in President of the Court of Appeal v Prime Minister.71 This is the case in which the
Prime Minister had kick-started the process of removing the President of the Court
of Appeal by appointing the tribunal in terms of section 125 of the Constitution to
investigate his conduct. The President of the Court of Appeal (applicant) contended
that before the Prime Minister could appoint the tribunal, he ought to have been
given an opportunity to make representations in terms of the principle of audi
alteram partem. Indeed, he was not given an opportunity to make such representa-
tions. The Prime Minister’s contention was that since the tribunal was going to give
65
Supra 590.
66
The classical case on the rule against bias is R v Sussex Justices ex p. McCarthy [1923] All ER 233.
67
Koatsa case (supra note 62) 335.
68
[1949] 1 All ER 109.
69
Ibid 118.
70
1997–98 LLR 455.
71
Supra. The approach was also followed in several other decisions of the court of Appeal such as
Mokoena supra, Khasu v Thabane C of A (CIV) 46 of 2016 available at https://lesotholii.org/ls/judg-
ment/court-appeal/16/25, accessed on 25 January 2019.
the Applicant a hearing through its proceedings, there was no need for a hearing
prior to appointment of the tribunal. The court said,
I agree that the strict requirements of the audi principle were not complied with … But
this does not mean that the appellant is correct in his contention that the consequences
of the failure to afford him a hearing vitiated the decision because it is based on an over
simplification of what the right to fair procedure — which includes the audi principle —
requires. As explained by Gauntlett JA in his earlier quoted dictum from Matebesi, the
requirements of fair procedure, which includes the audi principle, have ‘more recently
mutated to an acceptance of a more supple (sic) and encompassing duty to act fairly.72
The emerging approach is laudable because it moves from the rigidity of the
orthodox approach.73 But new risks have come with the new approach and the
superior courts in Lesotho seem not to be coping with them. After the deci-
sion in President of the Court of Appeal, a new administrative mischief emerged.
Administrators no longer go through the rigid process of hearing; they just write a
letter to a person concerned, requesting to ‘show cause why’ a decision may not be
taken. Almost invariably, this ‘show-cause-why-letters’ signal a premeditated deci-
sion on the side of the administrator. This trend seems to be surging in Lesotho’s
administrative practice and it is a new threat to administrative justice.
(iv) Disproportionality
This ground is fairly uncommon in Lesotho’s administrative law. The only time the
court of Appeal used it is in the case of Roma Taxi Association v Officer Commanding
Roma Police.74 The Court accepted that disproportionality is a ground for review
in Lesotho. It warned that, ‘[t]he judiciary will intervene in the exercise of admin-
istrative power or discretion, if such exercise descends into illegality, procedural
impropriety, irrationality and disproportionality, which has been fashioned as a
new ground’. The content of this ground is yet to be developed in Lesotho. In the
same Roma Taxi Association case, the court only hinted at its content by referring
with approval to the Zambian case of Attorney General v Roy Clarke.75 This is the
case in which the Supreme Court reviewed the decision to deport a British national
who had authored a satirical article calling the President of Zambia a ‘foolish king’.
The deportation was quashed by both the High Court and Supreme Court as it was
found to be disproportionate to separate him from his family for writing a ‘silly’
72
At Paras 18–19.
73
The merits of the new approach are best canvassed by Hoexter (supra note 34) at 362 as thus:
‘… [P]rocedural fairness is a principle of good administration that requires sensitive rather than
heavy-handed application. Context is all-important: the context of fairness is not static but
must be tailored to the particular circumstances of each case. There is no longer any room for
the all-or-nothing approach to fairness that characterised our pre-democratic law, an approach
that tended to produce results that were either overly burdensome for the administration or
entirely unhelpful to the complainant.’
74
C OF A (CIV) 20/2015 available on https://lesotholii.org/ls/judgment/court-appeal/16/6, accessed on
5 January 2019.
75
2008 Zambian Law Reports 148.
article. The decision buttresses what Hoexter contends, that ‘proportionality may
be defined as the notion that one may not use a sledgehammer to crack a nut’.76
In a situation where administrative law is based on the common law, like in
Lesotho, it remains to be seen whether disproportionality will grow as an inde-
pendent ground of review or as an aspect of ‘irrationality’. In South Africa, Hoexter
contends that it is one of the aspects of (un)reasonableness in terms of the coun-
try’s administrative law statute.77
(v) Legitimate expectation

One of the most popular grounds of administrative law review in Lesotho is the
notion of legitimate expectation. The superior courts in Lesotho readily review
administrative decisions if they go against legitimate expectation — either proce-
durally or substantively. The two aspects of the doctrine are crisply distinguishable
in that substantive expectation relates to an expectation of a favourable decision,
while procedural expectation relates to an expectation that a certain procedure
will be followed before a decision is taken.78 The doctrine has been imported from
two most influential jurisdictions on Lesotho’s administrative law — England79 and
South Africa.80 While the courts in Lesotho are generally agitated by the doctrine
of legitimate expectation, its real purport in the country’s administrative law seems
nebulous. The courts apply it inconsistently. In the case of Banyane v Commissioner
of Correctional Services,81 the court was seized with a situation where the Ministry of
Public Service had issued a circular which places holders of bachelor’s degrees on
‘Grade F’ of the government grading system. The applicant was a bachelor’s degree
holder who was given a demotion for misconduct and his salary was accordingly
reduced commensurate with the new lower rank. His contention was that based
on the Circular from the Ministry of Public Service, he had a legitimate expecta-
tion that as the holder of a bachelor’s degree, his demotion would not affect his
salary grading. The High Court granted this contention. The Court reasoned that
‘the circular affects all Public Servants and has since it was passed, become a rule
of practice that carries with it a legitimate expectation. Its legality has never been
challenged by the respondents in the past and they have acted on its authority.’
This approach was followed in the case of Mahetlane v Commissioner of Police.82
Contrarily, the Court of Appeal in the case of The Principal Secretary-Ministry of
Tourism Environment And Culture v Makha83 refused to recognise the same ‘Circular’
76
Supra at 109.
77
See s 33(1) of the Promotion of Administrative Justice Act 3 of 2000.
78
Transvaal v Traub 1989 (4) SA 731.
79
Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904.
80
Traub case (supra note 78).
81
CIV/APN/80/2008 available on https://lesotholii.org/ls/judgment/high-court/2010/13/, accessed on
27 January 2019.
82
CIV/APN/76/2011 available on https://lesotholii.org/ls/judgment/high-court/2011/151/, accessed on
27 January 2019.
83
C of A (CIV) 35/2012 available on https://lesotholii.org/ls/judgment/court-appeal/2013/5/, accessed
on 27 January 2019.
as the basis for legitimate expectation for promotion into ‘Grade F’. The applicants,
like in Mahetlane case, had gone to school to improve their qualifications. After
school they sought that their salary scale to be placed on ‘Grade F’. For some reason,
the Court of Appeal refused and reasoned that the expectation was unreasonable.
It held that ‘[i]t cannot be overemphasised that to be legitimate, an expectation
must be reasonable. And if it is said to be based on a document, the terms of that
document have to be properly interpreted and interpreted in context.’
Similarly, in the case of Ministry of Local Government v Moshoeshoe,84 the Court
of Appeal refused to grant an application for review in a situation where an acting
chieftainess was removed from her acting position on the basis that she was not in
the first instance a rightful successor to the office. Her contention was that at least
she had a legitimate expectation that she would be given a fair hearing before a
decision could be taken to remove her. The court characterised the expectation as
‘illegitimate’.85 The court found that ‘[a]n illegality committed in the past cannot
… be taken as a basis for continuing it in the future’.86 Rather bizarrely, the court
held that ‘the audi alteram partem rule has no application in this case.’87
What these cases demonstrate is that indeed the doctrine of legitimate expec-
tation is an impeccable aspect of administrative law of Lesotho. They also support
the overarching observation herein that the development of administrative law in
Lesotho is rather a chaotic enterprise; it lacks consistency and certainty.
4. EXCLUSION OF JUDICIAL REVIEW (OUSTER CLAUSES)

The Constitution of Lesotho is animated by the principle of constitutional
supremacy. The fundamental presupposition under this kind of constitutional
design is that the courts of law have unlimited powers to test the constitution-
ality of every action by any branch of government. However, the contrary is the
case in Lesotho; the country has both constitutional and statutory clauses meant
to oust judicial review. At the constitutional level, the Constitution has several
ouster clauses that exclude the jurisdiction of the courts. The first, and most crit-
ical ouster clause is section 80(5) of the Constitution which excludes the courts
from inquiring into the propriety of legislative process. The section provides that
the certificate of the Speaker of the National Assembly certifying the propriety of
the legislation process ‘shall be conclusive for all purposes and shall not be ques-
tioned in any court’. The judicial opinion in Lesotho is divided about the legal
effect of this clause. In the case of Development for Peace Education v Speaker of the
84
C of A (CIV) 15/09 available on https://lesotholii.org/ls/judgment/court-appeal/2009/29/, accessed
on 27 January 2019.
85
Ibid para 18.
86
Para 18.
87
Para 17. The court held this despite a long list of the decision from the Court of Appeal to the
effect that whenever a decision adversely affects the rights another person, the person so affected
must be given a hearing. See the cases of President of the Court of Appeal (supra note 50); Matebesi
(supra note 53); Koatsa (supra note 62).
National Assembly88 the Constitutional Court refused to pierce through the clause
to investigate whether in the enactment of the Human Rights Commission Act,89
the National Assembly complied with section 80(3) of the Constitution. The court
dismissed the application and reasoned that:
It should at all times be recognised that the Parliament of Lesotho has the power under
the Constitution to make laws and to regulate its own procedure and processes and in
particular to make rules for the orderly conduct of its own proceedings. This is a fun-
damental aspect of its legislative power vested in it by the Constitution and one that is
indeed expressive of the doctrine of ‘separation of powers.’90 (Emphasis in original.)
Surprisingly, in the most recent decision in Mokhothu v Speaker of the National
Assembly,91 the same court categorically demonstrated its willingness to pierce
through the ouster clause if the law has been violated. In this case the applicant
was deprived of his status as the official leader of opposition after his party lost one
Member of Parliament to the government. The Speaker did this despite the fact that
the other opposition parties had written to assure the Speaker that they support
the first applicant as the official leader of opposition. The decision of the Speaker
was done by way of a ruling to a point of order that was raised by the Minister of
Forestry.92 The defence of the Speaker was that the ruling is an internal parliamen-
tary proceeding and it was protected by privilege as codified by the ouster clause
in section 80(5) of the Constitution. The court refused and upheld the application.
It reasoned that:
Parliament is a creature of the Constitution. It is conferred with powers under section 81
(1) to make rules to regulate its own procedure and orderly conduct in each House. That
power is ‘subject to the provisions of this Constitution’. These quoted words indicate
that the rule-making power of Parliament is not absolute but limited by the provisions
of the Constitution. Thus, this Court has jurisdiction and power to declare the Speaker’s
rulings, rules, practice or usage of Parliament invalid if inconsistent with or violative of
any part of the Constitution.93
88
Development for Peace Education v Speaker of the National Assembly CC 5/2016(unreported).
89
Act 2 of 2016.
90
Development for Peace Education (supra note 88) para 21. See the same approach being rehashed in
Transformation Resource Centre v Speaker of the National Assembly CC No. 4 of 2017(unreported).
91
Mokhothu v Speaker of the National Assembly. Also in the case of All Basotho Convention v The
Speaker of the National Assembly CIV/APN/406/2016 (unreported), the court declared that the
Speaker did not have the power to make a pronouncement of the vacancy of a seat of Parliament.
The Speaker in casu, had declared vacancies in the National Assembly in a situation where
certain members of parliament failed to attend the necessary number of sittings of the National
Assembly as provided for in s 60(1)(g) of the Constitution. The case did not deal with the review
of internal proceedings of parliament per se, but it is one of the rare occasions in Lesotho where
the judiciary stood firm to review the decisions of parliament or its officials.
92
The Minister rose on a point order and said, ‘… I consider that one quarter of this House’s
Membership consists of 30 Members, what then with the recent drastic changes (i.e. floor-crossing)?
To me, there is no political party with the 1/4 (30 Members) majority to qualify for the Official
Leader of the Opposition. Can you kindly guide us on the proper procedure in this regard?’.
93
Mokhothu v Speaker of the National Assembly, para 14. For this approach the Court relied on the
Namibian Supreme Court decision in Federal Convention of Namibia v Speaker, National Assembly
of Namibia 1994(11) SA l 77(NSC) and the South African Supreme Court Decision in Speaker of
the National Assembly v De Lille 1999(4) SA 863 (SCA).
Section 91(5) is another constitutional ouster clause and it provides that ‘where the
King is required by this Constitution to act in accordance with the advice of any
person or authority, the question whether he has received or acted in accordance
with such advice shall not be enquired into in any court’.
At the statutory level, there are pieces of legislation that still oust the jurisdic-
tion of the courts from inquiring into the decisions of administrative tribunals.
The most recent legislation is the Insurance Act of 2014.94 The Act provides that
any person who is aggrieved by any decision of the Commissioner of Insurance
may refer such grievance to the tribunal created by Financial Institutions Act,95
and the decision of the tribunal ‘shall be final’.96
5. STANDING
The principles of standing in Lesotho are still based on the common-law doctrine
of locus standi in judicio. This principle requires a person to demonstrate a direct
and substantial personal interest before he or she could bring a case to court. The
plausible justification for the doctrine of locus standi in judicio is best located within
private law where a person may not justifiably be permitted to be a ‘busy-bee’
about the private affairs of other people. In public law the justification is fast losing
its currency. However, the Constitution of Lesotho still retains this common-law
approach to standing (locus standi in judicio). The Constitution is very express that
if any person alleges that any provision in the Bill of Rights ‘has been, is being
or is likely to be contravened in relation to him (or, in the case of a person who
is detained, if any other person alleges such a contravention in relation to the
detained person)’,97 such person may approach the High Court for redress. The first
case to affirm this position is the case of Lesotho Human Rights Alert Group v Minister
of Justice & Human Rights.98 This is the case in which a non-governmental organi-
sation instituted an action seeking declaratory relief that the continued detention
of certain awaiting trial prisoners was unlawful. The Court of Appeal refused to
grant the declarator on the procedural ground that the actio popularis is not part
of the Roman-Dutch common law which is part of Lesotho law. This approach has
been followed indiscriminately in private as well as in public litigation in Lesotho.
In recent times there has been strong criticism of the approach as it relates to
public litigation. The criticism notwithstanding, the Court of Appeal continues
to be adamant that as long as the Constitution cherishes the common-law notion
94
Act 12 of 2014.
95
Act 3 of 2012.
96
Section 132(2) of the Insurance Act, 2014. Similarly, s 29 of the Arbitration Act (Act 12 of 1980)
provides that the arbitration awards are generally final and shall not be subject to appeal. In the
case of M & C Construction International v Lesotho Housing and Land Corporation C of A (CIV) 9
of 2015 available on https://lesotholii.org/ls/judgment/court-appeal/16/4#undefined, accessed on 28
January 2019, the Court of Appeal confirmed that the courts of law will ordinarily be slow to
interfere with arbitration awards.
97
Section 22(1) of the Constitution of Lesotho, 1993.
98
LAC (1990–1994) 652.
of locus standi in judicio, rules of standing in Lesotho will remain narrow and illib-
eral.99 The most recent decision of the Court of Appeal to re-affirm this position
is the case of Mosito v Letsika.100 In this case the respondents were individual prac-
tising lawyers who had approached the court, amongst others, seeking to challenge
the appointment of the first appellant as the President of the Court of Appeal. Their
standing was brought into question both in the High Court and in the Court of
Appeal. The Court of Appeal was very forthright that applicants did not have locus
standi. Referring specifically to standing to challenge administrative decisions, the
court reasoned that,
The justification for standing requirement lies in the need to limit challenges to admin-
istrative acts, which is predicated on the need to limit the challenge to administrative
decision-making to genuine cases of grievance and to avoid unnecessary interferences
in the administrative process by those whose objectives are not authentic. This is the
philosophy underlying section 22(1) of the Constitution of Lesotho.101
In the exceptional case of Lesotho Police Staff Association (LEPOSA) v Commissioner of
Police,102 the High Court permitted the police association to litigate in a case where
it was challenging promotions in the police service that were allegedly unlawful.
The court rejected the procedural point of locus standi on the basis of the principle
of legality. Although the LEPOSA case is the most plausible and progressive decision
in contemporary jurisprudence of the superior courts on standing in Lesotho, it
may not command much authority in view of section 22(1) of the Constitution and
the approach taken by the Court of Appeal on the subject.103
6. ADMINISTRATIVE OVERSIGHT INSTITUTIONS

(a) Ombudsman
One of the institutions of administrative justice in Lesotho is the Ombudsman.
The ombudsman is a creature of the Constitution and statute.104 The Constitution
creates the ombudsman as an independent office which in the exercise of its func-
tions ‘shall not be subject to the directions or control of any other person or author-
ity’.105 The principal function of the ombudsman is to investigate an action taken
by any department of government,106 local authority107 or statutory body108 in ‘the
exercise of the administrative functions of that officer or authority in cases where
99
Phoofolo v The Right Honourable Prime Minister (C OF A (CIV) 15/2017 available on https://lesotholii.
org/node/10843, accessed on 27 January 2019.
100
C OF A (CIV) 9/2018 available on https://lesotholii.org/node/11111, accessed on 25 January 2019.
101
Ibid para 32.
102
The Ombudsman Act 9 of 1996.
103
In cases such as Human Rights Alert Group (supra note 98), Phoofolo (supra note 99) and Mosito
(supra note 100).
104
Section 134 of the Constitution of Lesotho, 1993 and The Ombudsman Act 9 of 1996.
105
Section 135(4) of the Constitution of Lesotho 1993.
106
Ibid, s 135(2)(a).
107
Ibid, s 135(2)(b).
108
Ibid, s 135(2)(c).
it is alleged that a person has suffered injustice in consequence of that action’.109 It

would seem that the recommendations of the Ombudsman are not binding. The
constitution provides that the Ombudsman makes investigations on the grievances
presented him and make a report to parliament. The only two conditions placed
by the constitution are that, (a) it must show ‘a statement of the action if any,
taken by the officer or authority concerned as a consequence of such investigation’,
and, (b) ‘a recommendation as to what remedial action, including the payment of
compensation, should be taken’.110 Unlike in South Africa where there is legion
of authority about the nature of the powers of the Public Protector,111 in Lesotho
there is a dearth of decided cases on the juridical nature of the remedial action
recommended by the ombudsman. The main bet for the Ombudsman is that par-
liament will enforce its recommendations. The only shortfall with the parliamen-
tary avenue is that the reports of the Ombudsman are never tabled and discussed
in parliament.112 This is contrary to the prescription of the Ombudsman Act of
1996 to the effect that upon receiving the report of the Ombudsman, the President
of the Senate and the Speaker of the National Assembly shall table a copy of the
annual report to ‘Parliament as soon as possible when Parliament is in session’.113
The problem of non-compliance with the Ombudsman recommendations
by public functionaries is therefor still rife. In the 2013/14 Annual Report, the
Ombudsman lamented that the main reason for non-compliance with the recom-
mendations is that,
… [with] some agencies the understanding is that the Ombudsman seems to interfere
with their exercise of powers under their specific legal frameworks. The assumption is
that their legal powers run parallel to those of the Ombudsman therefore, the latter need
not question how they exercise such powers.114
The problem of the juridical nature of the remedial action of the Ombudsman
remains the greatest handicap in the work of the Ombudsman an agency of admin-
istrative agency in Lesotho.
(b) Parliamentary oversight

The Parliament in Lesotho is one of the mechanisms of oversight over the exercise of
administrative powers. The Constitution of Lesotho embodies both collective and
individual responsibility of ministers to Parliament.115 This function is largely dis-
109
Ibid, s 135(1)(a).
110
Ibid, s 135(3).
111
Minister of Home Affairs v Public Protector of the Republic of South Africa 2018 (3) SA 380 (SCA); South
African Broadcasting Corporation SOC Ltd v Democratic Alliance 2016 (2) SA 522 (SCA); Economic
Freedom Fighters v Speaker, National Assembly 2016 (3) SA 580 (CC); Oudekraal Estates (Pty) Ltd v
City of Cape Town 2004 (6) SA 222 (SCA).
112
See Ombudsman Annual Report 2014/2015 at 5, available on http://www.ombudsman.org.ls/
wp-content/uploads/2018/05/Report-2014–2015.pdf, accessed on 23 January 2017.
113
Section 16(2) of the Ombudsman Act 9 of 1996.
114
The Ombudsman Annual Report 2012/13 at 7, available on www.ombudsman.org.ls/wp-content/
uploads/2013/03/Report-2012–13.pdf , accessed on 27 January 2019.
115
Section 88 of the Constitution.
charged through the question-and-answer mechanism and the committee system

of parliament. The Parliament of Lesotho is largely limited in its capacity to dis-
charge oversight functions on the executive due largely to the Westminster model
of inter-branch relations in Lesotho.116 The system of government in Lesotho is
largely parliamentary wherein all members of cabinet originate from, and remain
members of, one of the chambers of Parliament.117 Instead of this design being
conducive to parliamentary oversight, as it is theoretically intended to be, it has
weakened the oversight of parliament. The business of Parliament and the polit-
ical powers of Parliament largely radiate from cabinet. In that way, the Parliament
becomes inherently limited.
Nevertheless, the law in Lesotho does not only empower Parliament to delegate
its powers but it also empowers Parliament to scrutinise delegated legislation. In
terms of the law, subordinate legislation — regulations, rules, or by-laws — must be
tabled before the National Assembly within 15 sitting days of its publication in
the Gazette.118 If the subordinate legislation is not tabled accordingly, it ceases to
become law.119 Subordinate law does not follow the usual bill route; one it has been
tabled before the House it is referred to the relevant portfolio committee which
may recommend approval or disapproval.
So in a way, the Parliament has some semblance of oversight over the subor-
dinate legislation. That notwithstanding, the overall problem of executive domi-
nance is the major handicap for parliamentary oversight in Lesotho.
7. ‌CONCLUSION
The forgoing discussion has demonstrated that administrative law in Lesotho,
and perhaps administrative justice in general, is in a state of uncertainty. It is fol-
lowing two jurisdictions — England and South Africa — that are moving at very
high speed, so much that it can no longer keep pace. The English common law is
so much trying to keep pace with other developments in continental Europe while
South Africa administrative law is developing within two peculiar strictures — the
Constitution and the statute.
Be that as it may, it would seem that judicial review continues to be the centre-
piece of administrative law in Lesotho. Its traditional grounds transplanted from
the English case of CCSU are evolving, albeit not smoothly. It remains to be seen
how in future the courts will treat proportionality as ‘the new ground’ — whether
it will be treated as an aspect of rationality or it will be treated as a stand-alone
ground. And if it stands alone, it will have to be decided what its content will be. It
may be recommended that proportionality be treated as part of rationality where
116
Kopano Makoa ‘Strengthening parliamentary democracy in SADC’ Lesotho Country Report (SAIIA,
2004).
117
Section 87(4) of the Constitution of Lesotho,1993.
118
Section 27A (2).
119
Section 27A (3).
the court will assess whether the administrative action taken by the public func-
tionary is rationally proportionate to the alleged breach.
Another nagging aspect of administrative law in Lesotho is the question of
standing that is disturbingly lagging behind contemporary trends in public law.
The insistence on the private-law-rooted notion of locus standi is a real setback
for administrative law development in Lesotho. The change to this approach will
entail a reform of the entire bill of rights in the Constitution and its enforceability
clause. But the rule of law and legality avenues used by courts in cases such as
LEPOSA may be recommended in the meantime.
In summary, the paper recommends a systemic review of the state of adminis-
trative law with a view to embed it in the Constitution and to enhance certainty.
This twin objective may be achieved by constitutionalising the right to administra-
tive justice and by enacting a statute to implement this right. Such codification of
the right to administrative justice may not necessarily be a panacea against malad-
ministration but at least it is likely to bring certainty to the discourse.
Chapter 2
The State of Administrative Justice

in Zambia
FELICIT Y K AYUMBA K ALUNGA* AND O’BRIEN K A ABA †
ABSTRACT
The chapter provides an overview of Zam which people in Zambia seek administrative
bia’s administrative justice system. It dis- justice. The applicable law in such reviews is
cusses the salient features of the administra- English common law which regulates both
tive justice system through the analysis of the grounds of review, procedures to be fol-
relevant legislation and case law. Although lowed, and appropriate remedies. In addi-
the Constitution of Zambia does not guar- tion to judicial review, the chapter also dis-
antee a right to fair administration, it con- cusses the role played by statutory appeals
tains provisions which empower courts to bodies and the office of the Public Protector,
engage in administrative law review. Judicial in facilitating access to administrative justice
review has become the main means through in Zambia.
1. INTRODUCTION
Citizens interact with public institutions daily. The State provides many services
that citizens depend on for living orderly and meaningful lives. In providing these
services, public institutions and officers exercise discretion in designing and exe-
cuting policies. When the policies and services are planned and implemented judi-
ciously and in good faith, the citizens are assured of a fair and responsive public
administration system. However, when the services are delayed, or decisions are
made arbitrarily and capriciously, this will have a detrimental effect on the welfare
of the people. It will also impact negatively on the efficiency and effectiveness of
the service provision and public administration. It is the purpose of administrative
justice to provide mechanisms for effective oversight of the public administration
systems in order to ensure that administrative authority is exercised in a lawful
manner, and that people are not adversely affected. Where people’s rights and
interests are adversely affected, adequate remedies should be provided.
This chapter provides an overview of the salient features of Zambia’s adminis-
trative justice. It is divided into five sections. The first section is an introduction
and the second discusses the nature as well as the status of administrative law in
Zambia. The third section discusses judicial review as a mechanism for enforcing
administrative justice in Zambia, while the fourth section of the chapter considers

* LLB (UNZA) LLM (UCT). Lecturer, School of Law, University of Zambia.
†
LLB (London) LLM (UNZA) LLD (UNISA). Lecturer, School of Law, University of Zambia.
21
alternatives to judicial review. The fifth and final section is the conclusion, which
ties together the key arguments advanced in this chapter.
2. THE NATURE AND STATUS OF ADMINISTRATIVE LAW

The administrative justice system in Zambia consists of the common-law mech-
anisms of enforcing administrative justice. These are judicial review as well as
non-judicial mechanisms in the form of constitutional oversight bodies such as
the public protector and statutory tribunals. There is no constitutional right to fair
administration1 nor is there legislation that specifically provides for the right to
administrative justice. In order to be considered as fair or just, the exercise of public
administrative powers must be lawful and respectful of the procedural rights of
persons who are affected by the exercise of such powers.2 The right to fair admin-
istration is usually justified on the ground that it is intended to remove the ‘indif-
ference of the law regarding the exercise of discretionary powers.’3 The right to fair
administration seeks to introduce a paradigm shift from indifference to an estab-
lishment of entitlement to fair administration. This entails holding public officials
accountable not only in terms of adherence to fair procedures, but also in relation
to the substance of their decisions.
The right to fair administration entitles citizens ‘to expect a certain standard of
behavior [conduct] from public powers.’4 At a minimum, this requires the govern-
ment to act consistently and diligently, and to communicate efficiently and effec-
tively to the concerned persons. Further, the public authorities must act with good
faith and ensure that public resources are expended efficiently and in an account-
able manner.5 The right to fair administration is intended to foster a culture of
accountability throughout the public decision-making cycle. Public officials must
be answerable for both the process of decision making and the substantive content
of their decisions.
Although the Constitution of Zambia6 does not provide for a justiciable right
to fair administration, it prescribes standards in the form of values and principles
that should guide the public administration. Article 8 of the Constitution sets out
national values and principles which include ‘democracy and constitutionalism;
1
Migai Akech argues that this is a dynamic concept expanding as societal and judicial attitudes
change, but at its minimum, it includes reasonable and expeditious action and subsumes the
concept of proportionality in public decision making. See Migai Akech Administrative Law (2016)
438.
2
Mark Elliot & Robert Thomas Public Law 3rd ed (2017).
3
Juli Ponce ‘The Right to Good Administration and the Role of Administrative Law in Promoting
Good Governance’ available at http://www.law.com, accessed on 2 January 2019.
4
Elisabetta Lanza ‘The Right to Good Administration in the European Union: Roots, Rationales
and Enforcement in AntiTrust Case Law’ available at http://www.academia.edu/1345747/
The_Right_to_Good_Administration_in_the_European_Union_Roots_Rationes_and_Enforcement_in_
Antitrust_Case-Law, accessed 12 February 2019.
5
Ibid.
6
The Constitution of Zambia as amended by the Constitution of Zambia (Amendment) Act 2 of
2016 (The Constitution of Zambia).
T he S tate of A dministrative J ustice in Z ambia 23
human dignity, equity, social justice, equality and non-discrimination; good gov-
ernance and integrity.’ In terms of article 9, these national values and principles
apply to the interpretation of the Constitution, and the enactment and interpreta-
tion of laws.
Furthermore, Article 173 sets out guiding values and principles of the public
service and these include effectiveness, impartiality, fairness, and the equitable
provision of services, public participation and accountability. However, these
values and principles are not enforceable in a court as was held by the High Court
in Gordon Mwewa and Others v The Attorney General and Another.7 In this case, the
Court held that ‘national values and principles … cannot be taken as a forceful
embodiment … because as aspirations, they do not attach any immediate obli-
gation on the Government to implement them.’8 Therefore, aggrieved persons
have to rely on common-law remedies (except where there are prescribed statutory
remedies, some of which are discussed below) to seek redress in cases involving
maladministration.
Although the Constitution of Zambia does not provide for a right to fair adminis-
tration, previous constitution-making processes reveal that the right to fair admin-
istration has been recommended for inclusion in the bill of rights. The Zambian
constitution has undergone four major amendments since the country gained its
independence from Britain in 1964. The constitution was amended in 1973, 1991,
1996 and 2016. A review of the various draft constitutions and concomitant reports
leading up to the highlighted amendments sheds light on the constitutional aspi-
rations of the people, and in this case, the desire of the people to have a justiciable
right to fair administration.
The right to fair administration first appeared in the 1995 draft constitution. It
provided:
Administrative bodies and administrative officials shall act fairly and reasonably and
comply with the requirements imposed on them by law. Every person shall have the
right to be furnished with reasons in writing for administrative action which affects any
of his or her rights or freedoms unless the reasons for such action have been made public.
Any person aggrieved by the exercise of any administrative act or decision shall
have the right to seek redress before a Court or other tribunal.9
By including the right to fair administration, the Constitutional Review
Commission noted that as a result of increased complexities of public adminis-
tration, the relationship of citizens with the state tended to widen.10 As a result,
this led to increased instances where bureaucracy routinely impaired the people’s
ability to obtain public services or where these were only obtained after inordinate
7
Unreported case no 2017/HP/204. In this case, the Petitioners asked the High Court to declare
the repealed Mental Disorders Act unconstitutional. The Petitioners urged the court to consider
constitutional values and principles when construing provisions of the challenged law.
8
Ibid at J24.
9
Draft Constitution of the Republic of Zambia 1995, clause 40.
10
Report of the Constitutional Review Commission 1995, para 7.2.10.
and unjustified delays.11 To redress this, the Commission included the clause in the
draft constitution entitling individuals to fair administration in order to provide
individuals with a right which they could rely on to seek protection and or redress
against administrative inefficiencies.12 Although the focus of the provision was pri-
marily on procedural fairness, it also provided for a substantive right to seek redress
whenever a person was aggrieved by the exercise of administrative authority in the
form of an act or decision.
The right to fair administration was also included in all subsequent draft consti-
tutions but has not been included in the final provisions. The right was, however,
drafted more narrowly in the most recent constitution amendment process of 2016,
where it simply read: ‘A person has the right to administrative action that is expedi-
tious, lawful, reasonable and procedurally fair.’13 It left out the right of individuals
adversely affected by administrative action to be furnished with written reasons.
The Draft Bill of Rights was put to a referendum on 11 August 2016 but failed to
garner the requisite minimum support in order to pass.14 Although the referendum
failed to pass, the inclusion of the clause on the right to fair administration high-
lights the fact that it commands general support and will most likely be included
in future constitutions.
3. JUDICIAL REVIEW IN ZAMBIA

In the absence of a constitutional right to administrative justice, the common-law
remedy of judicial review has become the main avenue for controlling the admin-
istrative authority of the government. Courts derive their authority to control
administrative authority from their common-law jurisdiction to safeguard human
rights and protect the Constitution of Zambia and the rule of law. The court that is
mandated with original jurisdiction to hear judicial review applications is the High
Court.15 The following section discusses the legal authority for judicial review, the
applicable law, scope of and amenability to judicial review, grounds and remedies
for judicial review and the role of Parliament in setting standards for rule making
and application.
(a) Legal authority for judicial review

The applicable law in judicial review matters is the common law which is largely
shaped by the jurisprudence and legislative changes in the United Kingdom.
11
Ibid.
12
Ibid.
13
Draft Bill of Rights 2016, clause 31. The Draft Bill of Rights was put to a referendum on 11 August
2016 but failed to pass. It was annexed to Statutory Instrument No.35 of 2016.
14
The referendum was held on the same day as general elections. The fact that the two dominant
parties, the Patriotic Front (PF) and the United Party for National Development (UPND), took
opposing views turned the process into a partisan political issue and, therefore, destined it to fail
for want of national consensus.
15
The Constitution of Zambia (n 6) Article 134.
Some authorities are highlighted further below, beginning with the constitutional
context.
(i) Constitutional provisions that support judicial review

The Constitution of Zambia provides for the separation of governmental powers
between the Executive, Legislature and Judiciary. The legislative authority of the
state vests in Parliament which consists of the President and the National Assembly
(NA).16 Article 91(2) of the Constitution vests the executive authority of the state in
the President. It further states that the executive authority ‘shall be exercised by the
President or through public officers or other persons appointed by the President.’
Article 266 of the Constitution defines a public officer as ‘a person holding or
acting in a public office, but does not include a State officer, councillor, a consti-
tutional office holder, a judge and a judicial officer.’ A State officer is defined as a
person holding or acting in a state office, that is to say, ‘the office of the President,
Vice President, Minister and Provincial Minister.’17 Article 266 of the Constitution
also defines a constitutional office as ‘the office of the Attorney-General, Solicitor-
General, Director of Public Prosecutions, Public Protector, Auditor General,
Secretary to the Cabinet, secretary to the treasury and Permanent Secretary.’18
Persons defined as State officers or constitutional officers are exempted from the
definition of public officers through whom the President may exercise executive
functions, unless they have been appointed to perform executive functions by the
President. There is no jurisprudence yet on the significance of the definition of
public officer as it relates to the scope of and amenability to judicial review. The
Constitution vests judicial authority in the courts whose functions include ‘to hear
matters relating to, and in respect of [the] Constitution.’19
Another constitutional provision worth mentioning is article 267(4) which
provides:
A provision of this Constitution to the effect that a person, an authority or institution is
not subject to the direction or control of a person or an authority in the performance of
a function, does not preclude a court from exercising jurisdiction in relation to a ques-
tion as to whether that person, authority or institution has performed the function in
accordance with this Constitution or other laws.
This provision empowers Zambian courts to control the exercise of public authority
in accordance with the constitution and the law. Courts therefore have the jurisdic-
tion to determine whether the public administrator had power to act and whether
the power was exercised lawfully. The provision also means that no governmental
action falls outside the scope of judicial review on the ground of illegality. This not-
withstanding, the Constitutional Court of Zambia upheld the supposed ouster of
courts’ jurisdiction in construing the powers of the Director of Public Prosecutions
16
Ibid article 62(2).
17
Ibid art 266.
18
Ibid.
19
Ibid, art 119(2)(b).
to discontinue criminal proceedings in Milford Maambo and Other v the People.20 In

that case, the Constitutional Court was asked to determine whether or not, based
on the provisions of article 180(4)(c) and (7) of the Constitution, the Director of
Public Prosecutions should seek leave of the court when exercising his/her power to
discontinue criminal proceedings. Article 180(7) of the Constitution provides that:
The Director of Public Prosecutions shall not be subject to the direction or control of
a person or authority in the exercise of the functions of that office, except that the
Director of Public Prosecutions shall have regard to the public interests, administration
of justice, the integrity of the judicial system and the need to prevent and avoid the
abuse of the legal process.
The Constitutional Court held that:
the factors which are set out in clause (7) of article 180, and which the Director of Public
Prosecutions must consider, are meant to guide the Director of Public Prosecutions in
the performance of that office and are not in any way intended to place a fetter on the
discretion that the Director of Public Prosecutions enjoys.21
The court further stated that in the absence of an express provision to the contrary,
there was ‘no power in the court under article 180(4) of the Constitution to require
reasons to be furnished to it by the Director of Public Prosecutions regarding the
decision to discontinue criminal proceedings.’22 Although this was not a judicial
review application, the Constitutional Court ruling is directive to lower courts
regarding constitutional interpretation of ouster clauses, albeit inconsistent with
the interpretational guides and principles set out in articles 8, 9 and 267 of the
Constitution stated above.
(ii) Law applicable

In the absence of legislation providing for judicial review, the High Court relies on
common-law grounds for review and English procedural law. The English Common
Law applies pursuant to article 7 of the Constitution of Zambia which includes
laws that extend to Zambia as forming part of the laws of Zambia.23 The enabling
statute for the extension of English laws to Zambia is the English Law (Extent of
Application) Act.24 Section 2 of the Act states that:
Subject to the provisions of the Constitution and to any other written law—
(a)
the common law;
(b)
the doctrines of equity;
(c)
the statutes which were in force in England on 17th August, 1911, being the com-
mencement of the Northern Rhodesia Order in Council,1911; and
20
Selected Judgment no 31 of 2017.
21
Milford Maambo & Others v The People at J36.
22
Ibid at J37.
23
Article 7 of the Constitution of Zambia lists the laws of Zambia as constating of the Constitution;
law enacted by parliament; statutory instruments; Zambian customary law which is consistent
with the Constitution; and the laws and statutes which apply or extend to Zambia as prescribed.
24
Chapter 11.
(d)
any statutes of a later date than that mentioned in paragraph (c) in force in England,
now applied to the Republic, or which shall apply to the Republic by an Act of
Parliament, or otherwise; shall be in force in the Republic.
Zambia therefore uses the English common law in judicial review proceedings,
absent a constitutional or statutory provision on the subject. In terms of procedure,
the High Court uses the procedure for judicial review in England up to 1999 as
provided for by section 10 of the High Court Act25 which states:
The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised
in the manner provided by this Act and the Criminal Procedure Code, or by any other
written law, or by such rules, order or directions of the Court as may be made under
this Act, or the said Code, or such written law, and in default thereof in substantial con-
formity with the law and practice for the time being observed in England in the High
Court of Justice provided that the Civil Court Practice 1999 (the Green Book) of England
or any other civil court practice rules issued after 1999 in England shall not apply to
Zambia unless they relate to matrimonial causes.
In Dean Mung’omba & Others v Peter Machungwa & Others,26 the Supreme Court pro-
nounced itself on the application of the English procedural law in judicial review
proceedings as follows:
There is no rule in the High Court under which Judicial Review proceedings can be
instituted and conduced. Thus, by virtue of Section 10 of the High Court Act Chapter
27 of the Laws of Zambia, the High Court is guided as to the procedure and practice to
be adopted. The practice and procedure in England is provided for in Order 53 of the
Rules of the Supreme Court (RSC). Order 53 is comprehensive. It provides for the basis
of judicial review: the parties; how to seek the remedies and what remedies are available.
When relying on the English procedural law, courts adapt it where necessary to suit the
practical situation that the Zambian system permits.
The Constitutional Court has also justified the continued use of the English prac-
tice based on the provisions of article 7 of the Constitution. This was stated in
the case of The People and The Patents and Companies Registration Agency Ex Parte
Finsbury investment Limited and Zambezi Portland Cement Limited.27 In that case,
the Constitutional Court was asked to pronounce itself on the justification for the
requirement for leave to commence judicial review proceedings under order 53 rule
3 of the Rules of the Supreme Court of England (White Book), and the continued
use of the White Book in light of the constitutional provision in article 118(2)
(e), which mandates courts to administer justice ‘without undue regard to proce-
dural technicalities.’ The applicant argued that the requirement to obtain leave to
commence judicial review proceedings under order 53 rule 3 of the White Book is
contrary to article 118(2)(e) of the Constitution because all matters presented before
the court ought to be heard and determined on their merits. The court held that
based on the rationale for the requirement for leave to commence judicial review
proceedings, it could not be regarded as undue regard to procedural technicality. As
25
Chapter 27.
26
(2003) Z.R. 17.
27
Selected Judgment No. 28 of 2018 (2017/CCZ/R003).
such, article 118(2)(e) of the Zambian Constitution does not proscribe the require-
ment for leave before issuing judicial review proceedings.
The applicants in that case also argued that the requirement for leave to com-
mence judicial review proceedings had no legal basis considering that the substan-
tive provision requiring leave, namely section 31 of the English Supreme Court
Act of 1981, was not applicable in Zambia. The Constitutional Court reiterated the
position in Dean Mungomba that in the absence of procedural law on judicial review
matters, Order 53 of the White Book is part of the Zambian law by virtue of ‘the
settled law, … constitutional provision under article 7(e) of the Constitution as well
as statutory prescription by section 10 of the High Court Act.’28
Another important point to note concerning the sources of law is the role of cus-
tomary law in administrative justice. Article 7(d) of the Constitution identifies cus-
tomary law (which is consistent with the Constitution) as forming part of the laws
of Zambia. The Constitution also recognises the governance role of chiefs and tra-
ditional institutions by making them part of the local government system. Article
153(2)(c) of the Constitution provides that the Council shall consist of ‘not more
than three chiefs representing chiefs in the district elected by chiefs in the district.’
The Council is the unit through which the national and provincial governance
functions are implemented on the local level. Chieftaincy is also recognised under
part XII of the Constitution. Article 166 provides that ‘[the] institution of the chief-
taincy has capacity to hold property in trust for its subjects.’ Article 168(3) provides
that the ‘role of a chief in the management, control and sharing of natural and
other resources in the chiefdom shall be prescribed.’ Parliament has yet to enact
law to prescribe the exercise of this authority over natural resources by chiefs.
Given that customary law is recognised in Zambia, it governs the administrative
authority of chiefs in managing and sharing of natural and other resources. Article
167(b) which provides that a chief ‘shall enjoy privileges and benefits bestowed on
the office of the chief by or under culture, custom and tradition’ is indicative of
the governing role of customary law. This area of the law has however not been
developed by case law.
(b) Scope of judicial review

Judicial review is limited to the exercise of public power by public administrators
and does not apply to the exercise of private power. In Ludwig Sondashi v Godfrey
Miyanda MP (Sued as National Secretary of the Movement for Multi-Party Democracy)29
the appellant was expelled from the respondent political party and sought judi-
cial review praying for a declaration that he had been wrongfully expelled from
the party. The Court held that judicial review was the wrong process for chal-
lenging the party’s decision. The Court held that the internal affairs of a political
party were private matters and as such judicial review was inapplicable against the
28
The People and The Patents and Companies Registration Agency Ex Parte Finsbury at J37.
29
(1995–1997) Z.R. 1.
political party. The court added, ‘we say this despite the fact that the result in this
case would be that the appellant would lose his seat in Parliament, which of course
is a public matter, but that fact in itself does not affect the functional status of the
tribunal about which the court is being asked to concern itself, that is, as a private
tribunal.’30 There does not seem to be jurisprudence where this principle has been
applied in relation to a private institution exercising public functions.
(c) Executive discretion and separation of powers

Courts in Zambia have affirmed their power to control administrative authority
even where the power in question relates to executive discretion. In Attorney General
v Roy Clarke31 the Supreme Court affirmed that there is nothing like unfettered dis-
cretion that is immune to judicial review. The position does not however seem to
hold true when the power in question concerns the decision of the President as can
be seen from the case of The People v Attorney General Ex Parte Derrick Chitala.32 In
that case, the applicant applied for leave to commence judicial review of the deci-
sion of the President and his cabinet to adopt the 1996 constitution by the National
Assembly, contrary to the recommendation by the Mwanakatwe Constitutional
Review Commission which had recommended that the constitution should be
adopted by a constituent assembly and national referendum. The applicant sought
an order of certiorari to quash the decision of the President and his cabinet to adopt
the constitution through the national assembly and mandamus directed at the
president and his cabinet ‘to take such measures as may be necessary to ensure that
the constitution is debated by and finally determined by a constituent assembly or
any other broad based group and subjected to a referendum.’33 The Supreme Court,
during a renewed application for leave to commence judicial review, refused to
grant leave to commence judicial review on the ground that there were insufficient
grounds to warrant the case to be determined on a full hearing. The court used the
three grounds of judicial review, namely, illegality, irrationality and procedural
impropriety stated by Lord Diplock in Council for Civil Service Unions v Minister for
Civil Service34 to determine whether the case is suitable for a substantive hearing.
The court justified its use of grounds of review at the leave stage as follows:
We have to be guided by the three grounds enunciated by Lord Diplock and will not be
able to say whether from any other point of view the Government is making a mistake
or failing to grasp the opportunity to fashion a constitution that will not be considered
as tailor-made for some immediate convenience. It would be wholly improper for the
court to make any such political comment or to try and substitute its own view for that
of the Government under the guise of judicial review. Our immediate task is to resolve,
against the backdrop of the three grounds, whether leave should be granted or if, though
30
Ibid 2.
31
(2008) 1 Z.R. 38.
32
(1995–1997) Z.R 91.
33
(1995–1997) Z.R 91.
34
[1985] AC 374.
obviously not frivolous or vexatious, the application is legally hopeless such that we are
satisfied that there is no case fit for further investigation at a full inter partes hearing.
After analysing the facts set out in the affidavit in support of the application, the
court concluded that the applicant did not disclose a sufficient case for review. On
the question whether the decision of the President and his cabinet to adopt the
constitution through the national assembly against the recommendation of the
Mwanakatwe constitutional review commission was unreasonable, the Supreme
Court observed that there was a danger of the court substituting its decision for
that of the Executive. The court proceeded to find that since the terms of reference
given to the Mwanakatwe constitutional review commission was to recommend a
method of adoption on good grounds, it could not find a case suitable for review
on grounds of irrationality since the government gave good reasons for proceeding
in a different manner to what was recommended by the Mwanakatwe commission.
In sum, the court found that although the application was neither frivolous nor
vexatious, it was ‘legally an untenable application on the face of it’ and dismissed
the application for leave.35
One of the ways by which the court balances its power of review against respect
for separation of powers is to refrain from delving into the merits of the decision
when called upon to review a decision. The court has stated this position in many
cases including Frederick Jacob Titus Chiluba v The Attorney General36 where the
Supreme Court emphasized that ‘judicial review is concerned with reviewing, not
the merits of the decision in respect of which the application for judicial review is
made but the decision-making process itself.’ In keeping with this principle, courts
have refrained from dealing with the merits of the decision in a manner that would
amount to substituting their decisions for that of the administrator. The applica-
tion of this rule is slightly different when courts are called upon to review a deci-
sion on the ground of irrationality as is demonstrated in (d) below on grounds of
review.
(d) Grounds for judicial review

The grounds for judicial review have not been developed much from the com-
mon-law grounds stated by Lord Diplock in Council for Civil Service Unions v Minister
for Civil Service,37 namely, illegality, irrationality and procedural impropriety. Brief
explanations on the application of these grounds by the Zambian courts is given
using selected examples from case law.
(i) Illegality
Under this ground, the court would invalidate administrative action that is not
authorised by law (pure cases of ultra vires), and exercise of administrative power
without authority or in excess of jurisdiction given to the administrator. Illegality
35
Ibid.
36
(2003) Z.R 153.
37
[1985] AC 374.
also covers situations where the administrator exercises administrative authority

with improper motives, takes into consideration factors that ought not to be taken
into consideration and or fails to take into consideration factors that ought to be
taken into consideration.
In C & S Investments Limited, Ace Car Hire Limited and Sunday Maluba v The Attorney
General,38 the appellants challenged the seizure of their various property by the Drug
Enforcement Commission purporting to act under powers given to it by Sections
24 and 25 of the Dangerous Drugs (Forfeiture of Property) Act,39 on the ground that
the seizure was illegal because the Dangerous Drugs (Forfeiture of Property) Act
had been repealed by Section 49 of the Narcotic Drugs and Psychotropic Substances
Act.40 They argued, inter alia, that ‘the respondent failed to understand correctly
the law that regulated his decision-making power, by invoking a law which did
not exist.’ The respondent argued that the use of the Seizure Notice referring to
the provisions of the repealed Dangerous Drugs (Forfeiture of Property) Act, was
an oversight which is curable. They also argued that the same power under the
repealed law was stated in the exact terms under section 31 of the Narcotics Drugs
and Psychotropic Substances Act. The Supreme Court held that ‘it is well settled
that a wrong reference to the power under which actions are taken would not per
se vitiate the action if it can be justified under some other power under which the
actions could be lawfully undertaken.’41 Thus, the principle applies even where an
erroneous reference of law has been made.
(ii) Irrationality
Irrationality questions the reasonableness of the decision or conduct of the admin-
istrator. Courts have consistently applied the Wednesbury unreasonableness test for-
mulated in Associated Provincial Picture House Ltd. v Wednesbury Corporation.42 The
test is that the decision should be so outrageous in its defiance of logic or accepted
moral standard that no sensible person who had applied his/her mind to the ques-
tion to be decided could have arrived at it. On this ground, courts inevitably venture
into the merits or substantive decision-making process. The relevant test is however
not whether the decision is desirable or not. Rather the test is whether a rational
decision maker placed in similar circumstances would have arrived at a different
decision. The interesting variation of the ground as applied by Zambian courts is the
assessment of the proportionality of the administrative action which was applied
in The Attorney General v Roy Clarke.43 In that case, the Attorney General (appellant)
appealed against the decision of the High Court which nullified a deportation order
against Roy Clarke (the respondent) on the ground that the deportation violated
the Constitution and section 26(2) of the repealed Immigration and Deportation
38
SCZ Judgment No. 24 Of 2003.
39
Act 7 of 1989.
40
Chapter 96.
41
Ibid.
42
[1947] 2 All ER 680.
43
(2008) 1 Z.R. 38.
Act.44 Section 26(2) of the now repealed Immigration and Deportation Act empow-
ered the Minister of Home Affairs to deport from Zambia, any person ‘who in the
opinion of the Minister [was] by his presence or his conduct likely to be a danger
to peace and good order in Zambia.’ The respondent, a British national holding
established residence status in Zambia, was deported after he published a satirical
piece in the Post Newspaper in which he described the President and his ministers
in what was described as ‘crude language.’45 On an application for judicial review
of the deportation order, the High Court nullified the deportation on the grounds
that it violated the Constitution, section 26(2) of the Immigration and Deportation
Act, was procedural improper and unreasonable. On appeal, the Supreme Court
nullified the deportation order on the ground of irrationality but for reasons that
are different from those stated in the High Court order. The Supreme Court held
that the deportation of the respondent based on the facts was ‘disproportionate
[and] too extreme an action.’46
(iii) Procedural impropriety

This ground covers failure by an administrator to observe procedural rules that
are expressly laid down by law and or under the common-law principles of natural
justice. In reference to the application of the rules of natural justice, the Supreme
Court in The People v Roy Clarke47 held that where a statute does not oblige an
administrator to give prior notice or a chance to be heard, the administrator was
not obliged to hear the affected person or give them reasons for the decision. The
court distinguished the case from its prior decision in Zinka v The Attorney General48
where it had held that even in the absence of an express provision to exclude the
audi alteram partem rule, there is a presumptive duty to give prior notice and an
opportunity to be heard where ‘power is being exercised to impose penalties or to
deprive a person of his livelihood; legal status (not being terminable at pleasure);
personal liberty (not involving an illegal immigrant); property rights or any other
legitimate interests or expectations.’ The Supreme Court in Clarke held the pre-
sumption could not apply because the respondent, not being a Zambian citizen,
could not claim a right to stay in Zambia forever.
(e) Remedies for judicial review

Courts have been reluctant to extend the remedies for judicial review beyond the
ones provided under Order 53 of the Rules of the Supreme Court of England, which
have their origins in the prerogative writs of certiorari, mandamus and prohibition.
Applicants have however challenged the courts by seeking more creative remedies
44
Chapter 123 has been repealed and replaced by the Immigration and Deportation Act 18 of
2010. The corresponding provision in the 2010 Act is s 35(2) which empowers the minister to
declare persons be inimical to the public interest as prohibited immigrants.
45
The Attorney General v Roy Clarke (note 43).
46
Ibid.
47
Ibid.
48
(1990–1992) Z.R. 73.
including damages for loss incurred because of maladministration, but have largely
been unsuccessful.49 Courts have also shown reluctance to order injunctive relief
against the state citing provisions of section 16 of the State Proceedings Act,50 which
exempts the State from remedies such as injunctions or specific performance.51
This is notwithstanding the fact that the State Proceedings Act applies to civil pro-
ceedings defined as ‘includes proceedings in the High Court or a subordinate court
for the recovery of fines or penalties.’52 One could argue that the definition does
not include judicial review proceedings especially where the remedies sought do
not include recovery of damages or similar remedy.
(f) Constitutional role of Parliament and norm setting

The constitutional role of Parliament as an oversight body over the exercise of
public power is mainly in its law-making function as provided by article 62 of the
Constitution. Another constitutional mandate of Parliament is to oversee the per-
formance of executive functions by ensuring equity in the distribution of public
resources and scrutiny of public expenditure among other functions stated in
Article 63 of the Constitution. The National Assembly is obliged to facilitate public
involvement in the legislation process.53 In relation to the legislative function, the
National Assembly has a role to play by enacting law that protects the Constitution
and promotes democratic governance.54 This duty would also entail enacting laws
that properly prescribe lawful administrative authority and promote efficient
public administration. The importance of good law cannot be over-emphasised
considering the courts’ reluctance to expand the grounds of review beyond the
common-law grounds.
4. ALTERNATIVES TO JUDICIAL REVIEW

Judicial review plays an important role as a mechanism for holding government
accountable. The very nature of adjudication, through which judicial review
is accomplished, generally ensures certainty and predictability in the law, and,
therefore, helps articulate and preserve cardinal constitutional values.55 Without
this certainty, constitutional values would give way to arbitrariness. Adjudication,
however, has inherent weaknesses. Adjudication largely focuses on the narrow
issues brought to the court. It does not consider broad social and policy problems
that may underlie a problem. As a result, adjudication tends to be a piecemeal and
49
For instance, the case of The Attorney General v Roy Clarke (note 43).
50
Chapter 71.
51
For instance, see the case of Mifiboshe Walulya And Attorney- General and Hon. F. M. Chomba
(1980) Z.R. 327 (H.C.).
52
State Proceedings Act, s 2.
53
The Constitution of Zambia, art 89.
54
Ibid art 61.
55
David Dyzenhaus ‘Constituting the Rule of Law: Fundamental Values in Administrative Law’
(2002) 27 Queen’s Law Journal 446.
incremental mechanism of seeking redress.56 Comprehensive change over a major

issue would, therefore, be slow in coming.
In order to provide redress where judicial review may not be appropriate or
ideal, Zambian administrative law provides for several other mechanisms intended
to oversee the public administration machinery. These include appeals to ministers
or other senior public officers, the Human Rights Commission, public inquiries,
tribunals and the office of the Public Protector. All these are statute-based redress
mechanisms. An overview of these is given below. However, more attention is
given to the analysis of the role of the Public Protector as the institution, in its
current form, is a new creation and promises to potentially play a major role in the
administrative law landscape in future.
(a) The Human Rights Commission

The Human Rights Commission (HRC) was established in 1996 as an autonomous
body.57 It was created at a time when the country was still substantially reliant on
donor aid. Many viewed its establishment with suspicion as it was seen as a move
to placate or appease donors ahead of the 1997 international donor meeting to,
inter alia, review Zambia’s progress on human rights, which was a condition for
renewing donor support.58
The HRC consists of the chairperson, vice-chairperson and not more than five
other commissioners.59 All the commissioners are appointed by the President,
subject to ratification by the National Assembly. A President not committed to
human rights can therefore simply avoid appointing commissioners and render
the commission disabled. Indeed, the HRC had no commissioners from about
February 2014 to July 2016, as the President did not appoint commissioners.60
Commissioners are appointed for a tenure of three years and there is no inbuilt
mechanism to ensure that at any time the HRC always has sufficient commis-
sioners to meet the quorum.61
The functions of the HRC are generally very wide. They include investigating
human rights violations and maladministration of justice; proposing measures
to prevent abuse of human rights; inspection of conditions in prisons and other
places of detention; research, education and information sharing; and rehabilita-
tion of victims of human rights violations.62
56
Jeff King ‘Accountability: The Value of Courts in Light of the Alternatives’ available at https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=1027626, accessed 12 February 2019.
57
Article 125 Constitution of the Republic of Zambia 1996. The existence of the HRC is currently
provided for under Article 230 Constitution of Zambia (Amendment) Act 2 of 2016.
58
Human Rights Watch, ‘Protectors or Pretenders: Government National Human Rights
Commissions in Africa’ http://www.hrw.org/legacy/reports/2001/africa/overview/record.html,
accessed 23 October 2015.
59
Human Rights Commission Act 1996, s 5(1).
60
Gilbert Sebihongo ‘Zambia Human Rights Commissioners Sworn In’ available at https://www.
nanhri.org/2016/07/22/zambia-human-rights-commissioners-sworn-in/, accessed 31 January 2019.
61
Human Rights Commission Act, s 7.
62
Ibid, s 9. See also Article 230(2) Constitution of Zambia (Amendment) Act 2 of 2016.
Although the HRC’s establishment was viewed with suspicion, its initial com-
missioners took their work seriously and operated courageously. They often con-
demned state torture, police abuse of human rights, exposed poor prison condi-
tions and condemned government attacks on private media.63 However, over the
years, the HRC has become lukewarm and lost most of the steam of the initial com-
missioners. It is now an institution that largely takes comfort in innocuous human
rights work such as conducting sensitisation meetings and issuing routine reports
such as of prison visits which are not politically sensitive. Where it occasionally
issues statements, they are often timid and cautious. It can be argued that it has
become an institution more concerned about being politically correct than being
an effective advocate of human rights. In the words of John Hatchard, the HRC can
aptly be described as an institution that has ‘found it extremely difficult to adopt a
detached’ response to the human rights discourse.64
An example of this approach is the HRC’s 2012 submission to the Technical
Committee Drafting the Zambian Constitution. The Commission vehemently
opposed the inclusion of a provision protecting the rights of minorities by arguing
that:
The provision itself is very open ended and may lead to the handing of certain rights to
or inclusion of certain groups that the people of Zambia may not be ready or willing to
accept. In particular, this concern is directed at members of the Lesbian, Gay, Bisexual,
Transgendered and Inter-sex (LGBT) community.65
The HRC justified its position on the assertion that while human rights were
universal, their enjoyment was subject, inter alia, to domestic culture and reli-
gion,66 completely ignoring the universality of human rights which the institu-
tion was created to defend. If human rights were only enjoyed on such terms as
the Commission purported, arguably that would be a major dent on the concept of
human rights as religions and cultures are relative and cannot be made the condi-
tion precedent for enjoying human rights.
(b) Public inquiries

Public inquiries provide a unique platform in public administration. Unlike courts
or tribunals, public inquiries can judge public administration on a wide basis. An
inquiry may look at a series of administrative actions, prospective plans or policies
and may even ask questions about the appropriateness of certain policy choices.67
63
Human Rights Watch, ‘Protectors or Pretenders: Government National Human Rights Commissions
in Africa’ http://www.hrw.org/legacy/reports/2001/africa/overview/record.html, accessed 23 October
2015.
64
John Hatchard, ‘Legal Techniques and Agencies of Accountability: Human Rights Commissions
in Commonwealth Africa,’ in Muna Ndulo (ed) Democratic Reform in Africa: Its Impact on
Governance and Poverty Alleviation (2006) 115.
65
Human Rights Commission, The First Draft Constitution: The Human Rights Commission’s
Submission to the Technical Committee on Drafting the Zambia Constitution (July 2012).
66
Ibid.
67
Mark Elliot ‘Ombudsmen, Tribunals, Inquiries: Re-Fashioning Accountability Beyond the Courts’
University of Cambridge Legal Research Paper Series No. 21/2012.
Inquiries are usually initiated by the government and often intended to exhaus-
tively deal with certain matters of public importance.68 Inquiries further perform
two other major roles. First, inquiries provide public administrators an opportunity
to gather the fullest information and enable them to make better informed deci-
sions. Second, they enable citizens to participate in decision making by providing
interested individuals an opportunity to appear and provide their views, either in
affirmation of or objection to a proposed course of action.69
In Zambia all the Commissions of Inquiry are appointed by the President in exer-
cise of his power under the Inquiries Act.70 The President has power under section
2 of the Act to appoint one or more commissioners to inquire into any matter in
which an inquiry would, in the opinion of the President, be in the interest of the
public. The commission is established at the discretion of the President.
Commissions of Inquiry have been used in a variety of subject matter in
Zambia, including constitution making, determination of salaries for the civil
service, investigation of suspicious deaths of political leaders, management of
public universities, abuse of human rights, and road accidents. Commissions of
inquiry have an inherent weakness in that they can only make recommendations.
It is up to those in authority to decide whether or not they will implement those
recommendations. The experience from the constitution making processes shows
that the government often rejects most of the recommendations that are perceived
as threatening the ruling party’s hold on power, no matter how well intentioned
the recommendations may be. Another weakness about Commissions is that by
determining the terms of reference, the President can potentially determine the
desirable outcome of an inquiry. For example, the terms of reference for the 1972
Constitutional Commission simply required the Commission to inquire into the
mode of implementing a one-party state and not about the desirability or legiti-
macy of such a system of governance.71
(c) Tribunals
Tribunals are administrative redress authorities that usually exist outside the ordi-
nary court system.72 Tribunals are usually creatures of statute. There is no universal
model for tribunals. Instead, each tribunal is established to fit the task for which it
is set up.73
68
Ibid.
69
BL Jones and K Thompson Garner’s Administrative Law 8 ed (2005) 428.
70
Chapter 41.
71
See Report of the National Commission on the Establishment of a One-Party Participatory
Democracy in Zambia, October 1972.
72
Abhishek Kumar Jhai ‘Administrative Tribunals of India: A Study in the Light of Decided Cases’
available at http://ssrn.com/abstract See also Lorne Sossin & Steven J Hoffman ‘The Elusive Search
for Accountability: Evaluating Adjudicative Tribunals’ (2010) 28(2) Windsor Yearbook of Access to
Justice 347.
73
Jones & Thompson (Supra note 69) 377.
Tribunals are generally seen as providing ‘speedier, cheaper and more accessible
justice than do ordinary courts.’74 Since tribunals tend to focus on specific areas
of public administration, such as tax administration, they are usually staffed by
experts in those areas and, therefore, can deal with matters more expertly and
rapidly than courts which may need expert testimony to help them arrive at an
informed decision.75
In Zambia, tribunals are strewn across several statutes dealing with specialised
subject matter. Each tribunal is, therefore, established by a specific statute to serve a
clearly defined purpose. Although there are several tribunals, the most well-known
are the Lands Tribunal, the Liquor Licensing Tribunal, the Urban and Regional
Planning Tribunal, the Tax Appeals Tribunal, and the Competition and Consumer
Protection Tribunal.
The Lands Tribunal was initially established under section 20 of the Lands
Act 1995. It is now provided for under section 3 of the Lands Tribunal Act 2010.
The jurisdiction of the Lands Tribunal is stated under section 4(1) of the Act, and
basically relates to resolution of land disputes. Section 4(2)(h) and (i) of the Lands
Tribunal Act empowers the Tribunal to make any declaration it considers appro-
priate and to grant injunctive relief or any interlocutory relief it considers appro-
priate. This is important as it reverses the jurisprudence established in the case of
Kawana Mwangelwa v Ronald Bwale Nsokoshi and Ndola City Council.76 This case had
held that the jurisdiction of the Lands Tribunal is limited to the settlement of ‘land
disputes’ under the Act, and is not an alternative forum to the High Court to which
parties can go to even for the issuance of prerogative writs such as mandamus.
This, however, now presents potential conflict in the mandate of the Tribunal
and the jurisdiction of the High Court. The provision, therefore, entails that in
land matters the Tribunal can provide any remedy that the High Court may give,
including prerogative writs.
The Liquor Licensing Act77 empowers the minister to appoint an Appeal Tribunal
to deal with appeals against decisions of the Liquor Licensing Committee.78 The
Tribunal has power to order any person to attend as a witness and give evidence,
take evidence on oath or conduct investigation it considers necessary, and award
costs.79 In determining an appeal, the Tribunal is entitled to make such orders as it
thinks fit, and such orders are binding.80
The Tax Appeals Tribunal was initially established under the Revenue Appeals
Tribunal Act 1998 and was known as the Revenue Appeals Tribunal. The Revenue
Appeals Tribunal Act 1998 was repealed and replaced by the Tax Appeals Tribunal
74
HWR Wade & CF Forsyth Administrative Law 11 ed (2014) 763.
75
Ibid, 766.
76
SCZ No. 29 of 2000.
77
20 of 2011.
78
Liquor Licensing Act 20 of 2011, s 23(1).
79
Ibid, s 24(a).
80
Ibid, s 24(10).
Act of 2015.81 Section 3 of the Tax Appeals Tribunal Act provides for the continued
existence of the Revenue Appeals Tribunal but renamed it to ‘Tax Appeals Tribunal’.
Section 5 of the Act mandates the Tribunal with jurisdiction to hear and determine
taxation disputes.
The Urban and Regional Planning Act 2015 empowers the minister, by statu-
tory instrument, to constitute a Planning Appeals Tribunal for each province in
the country.82 There is, therefore, not a single Planning Appeals Tribunal for the
whole country. Instead, each province has its own Planning Appeals Tribunal. The
Tribunal hears and determines appeals from the decisions of provincial planning
authorities.
The Competition and Consumer Protection Tribunal is established under
section 67(1) of the Competition and Consumer Protection Act.83 The Tribunal has
jurisdiction to hear appeals against decisions of the Competition and Consumer
Protection Commission. An appellant is required to appeal to the Tribunal within
30 days of receiving the decision of the Commission appealed against.84 The
Tribunal has power to summon witness, call for the production of, or inspection of
books, documents, and other things, and to examine witnesses on oath.85 Where
a merger was effected in violation of the Competition and Consumer Protection
Act 2010, the Tribunal has power to order a party to the merger to sell any shares,
interests or other assets acquired as a result of the merger; or to declare as void any
provision of an agreement to which the merger was subject.86 The Tribunal can
further direct any firm, or any other person, to sell any shares, interests or assets of
the firm if the prohibited practice it is considering cannot be adequately remedied
in terms of another provision in the Act; or is substantially conduct by that firm
previously that has been found by the Tribunal to have been a prohibited practice.87
Generally, tribunals do not enjoy much independence from the executive as
the members of the tribunal are appointed by the concerned minister (usually
over whose ministry the tribunal exercises oversight) who sets their conditions of
service.
(d) The Public Protector

The proposal about the need for an Ombudsman institution in Zambia was first
made by President Kenneth Kaunda in 1971 to address perceptions of increased
corruption and abuse of power by government leaders.88 The suggestion was taken
up by the 1972 Constitutional Review Commission. The Commission received sub-
missions to the effect that several leaders had accumulated property as a result of
81
1 of 2015.
82
Urban and Regional Planning Act 2015, s 62(1).
83
24 of 2010.
84
Ibid, ss 60 and 68.
85
Ibid, s 71(2).
86
Ibid, s 73(1).
87
Ibid, s 73(2).
88
Commission for Investigations Annual Report (2005) 7.
corruption and abuse of authority.89 The Commission, therefore, recommended

the establishment of the institution of an Ombudsman, to be known as the
Investigator-General. The Commission summarized the benefits of this office to
public administration as follows:
The Ombudsman would be of tremendous value to the administration —
(a)
by informally advising, reminding and reproving;
(b)
by soothing public feeling over reports of outrageous practices by the very fact that
their complaints were receiving his attention; and
by rejecting unjustified complaints.90
(c)
This shows that in the original design, the office of the Investigator-General was
not intended to have binding power but simply to have soft power to receive com-
plaints, investigate and make recommendations.
The recommendations of the Commission were included in Article 90 of the
1973 Constitution which established the office of the Investigator-General. The
office became functional in 1974 with the passage of the now repealed Commission
for Investigations Act.91 Under this law, the role of the Ombudsman was performed
by the Commission for Investigations, which was chaired by the Investigator-
General (IG). The IG was appointed by the President, in consultation with the
Judicial Service Commission.92 The IG was to be someone qualified to be appointed
as a High Court judge.93 The IG enjoyed security of tenure and would retire at the
age of 65 years.94 He or she could only be removed from office for incompetence,
inability to perform functions of the office or for misbehaviour. The decision to
remove the IG could only be made by the President on the recommendation of a
judicial tribunal and supported by a two-thirds resolution of the National Assembly
(NA).95
The IG served with three other commissioners who were directly appointed by
the President.96 The three commissioners enjoyed no security of tenure. Their term
of office was three years, renewable once, and were removable from office by the
President, without any resort to an independent tribunal or the NA.97
The Commission had competence to investigate the following:
(a)
Any person in the service of the Republic;
(b)
The members and persons in the service of local authorities;
(c)
The members and persons in the service of any institution or organisation, in which
the government held a majority of shares or exercised financial control;
89
Report of the National Commission on the Establishment of A One-Party Participatory
Democracy in Zambia, (October 1972) para 128.
90
Ibid.
91
Chapter 39.
92
Constitution of Zambia 1996, Art 90(1).
93
Ibid, Article 90(2)(a).
94
Ibid, Article 90(3).
95
Ibid, Article 90(5) and (6).
96
Commission for Investigations Act, s 4(1).
97
Ibid, s 5(2).
(d)
The members and persons in the service of any commission established by or under
the Constitution or any Act of Parliament.98
The Commission, however, was barred from investigating the President, decisions
of a court or a judicial officer or of any tribunal established by law, or any matter
relating to the exercise of the prerogative of mercy.99 It had jurisdiction to inquire
into the conduct of any person whenever directed to do so by the President and in
any case it considered that an allegation of maladministration or abuse of office or
authority ought to be investigated.100
The Commission only had an office in the capital city (Lusaka) and only made
occasional visits to other provinces. The consequence was that it was an institution
not easily accessible to many citizens.
The Commission was empowered to receive complaints or allegations from
any individual or any body of persons, whether corporate or not.101 Both oral and
written complaints were admissible. The Commission, however, could not ordi-
narily receive any complaint or allegation made more than two years after the
person making the complaint came to know of the facts giving rise to the com-
plaint or allegation.102
Every investigation by the Commission was carried out in camera or in secret.103
The process, therefore, closed off public participation. The Commission could
refuse or discontinue an investigation where it was satisfied that: ‘(a) The complaint
was trivial, frivolous or not made in good faith; or (b) the inquiry would be unnec-
essary, improper or fruitless’104
Where the Commission decided not to conduct or to discontinue an investiga-
tion, it was required to inform the complainant in writing but it was not required
to give reasons for its decision.105 The Commission was required to submit a report
to the President of every investigation it had conducted, containing:
(a)
A summary of the evidence taken together with the conclusion and recommenda-
tions of the Commission;
(b)
A statement of any action that has been taken by any person whose conduct is under
investigation or by the department or authority of which such a person is a member
or in which he is employed, to correct or ameliorate any conduct, procedure, act or
omission that is adversely commented on in the report;
(c)
Where any person has suffered loss or injury as a result of an alleged misconduct,
maladministration or abuse of office or authority by any person whose conduct
is under investigation, and the Commission has found allegations to be true, the
Commission may in its recommendations state that compensation should be paid to
98
Ibid, s 3(1).
99
Ibid, s 3(2).
100
Ibid, s 8.
101
Ibid, s 9(1).
102
Ibid, s 9(4).
103
Ibid, s 16.
104
Ibid, s 10(2).
105
Ibid, s 10(3).
the person who has suffered such loss or injury or to any dependent of such person,
and shall determine the sum which it recommends as compensation.106
It was entirely up to the President to take any decision or action on the report as
s/he thought fit.107 The Commission was also required to submit a report on its
operations annually to the National Assembly. The report to the NA by law could
not disclose the identity or contain any statement which could point to the iden-
tity of any person into whose conduct an investigation had been or was about to
be made.108 Without these details, it meant that the Commission’s report to the
NA was of little use as it became difficult for the legislators to debate the matters it
raised from an informed perspective or even follow up on some cases. As a result,
the Commission played no major role in the good governance discourse of the
country and has had very little impact on governance.
During its existence, the Commission had several challenges, bearing on its
independence and capacity to deliver on its mandate. For example, although
the Commission was established as an autonomous institution, its staff were
civil servants. The anomalous nature of this situation was aptly captured in the
Commission’s 2005 report:
Although the Act allows the Commission to employ its own staff, this has not been
practically possible as all positions within the Commission’s establishment are civil
service positions, with the exception of the office of the Investigator- General and the
Commissioners. Therefore, any changes in the establishment of the institution are
subject to approval by Cabinet Office as are the commensurate conditions of service.
Currently, all of the Commission’s staff are drawn from the Civil Service, i.e. they come
on direct transfer from other government departments. This is not a very desirable state
of affairs as it may create some conflict of interest in some instances as the members of
staff are drawn from departments and ministries which are subject to the jurisdiction of
the Commission.109
For many years the Commission seemed to be poorly run, underfunded and dis-
organised. An internal audit of its operations in 2005, for example, found that
the Commission could not trace 1, 264 files of complaints made to it.110Its reports
have usually been produced erratically and are often delayed, sometimes going for
several years without publishing a report. For example, the most recent publicly
available report of the Commission was issued in 2012.111
Because of such shortcomings, it is hardly surprising that the office of the
Investigator- General became a target of reform in subsequent constitution making
processes, starting from 1995. The 1995 Constitutional Review Commission
received several submissions from the public who strongly felt that the Office of
the Investigator-General had failed to perform its expected function of holding
106
Ibid, s 20.
107
Ibid, s 21(1).
108
Ibid, s 22(1) and (2).
109
Commission for Investigations Annual Report (2005) 11.
110
Ibid, 14.
111
Commission for Investigations Annual Report 2012.
government accountable on behalf of the citizens.112 The people also found it

anomalous that that the Investigator-General reported to the Executive, the same
institution it was supposed to hold accountable. To redress this, the Constitutional
Review Commission recommended a change of name from Investigator-General
to the name Parliamentary Ombudsman.113 The Commission reasoned that the
change of name would have a psychological reorientation effect both to the citizens
and government towards the role of the institution. It was further recommended
that the Parliamentary Ombudsman should be independent of the Executive and
report directly to the National Assembly. A clause to this effect was included in
the draft constitution and gave the Parliamentary Ombudsman power to ‘inves-
tigate and redress’ complaints of maladministration and abuse of power by offi-
cials.114 The 2005 Constitutional Review Commission had actually gone further to
propose enhancing the powers of the Parliamentary Ombudsman by allowing the
Parliamentary Ombudsman to ‘investigate and prosecute’ cases of abuse of office
and maladministration.’115 These proposals have been part of all subsequent draft
constitutions leading to the 2016 constitutional amendment.
However, when the Constitution was substantially amended in 2016,116 the
office became known as Public Protector (PP) and not Parliamentary Ombudsman
as earlier suggested, a direct transplantation of the nomenclature from the South
African Constitution. Article 243(1) of the Constitution of Zambia establishes the
PP, who is appointed by the President on recommendation by the Judicial Service
Commission, subject to ratification by the National Assembly. A person qualifies to
be appointed as the PP ‘if (a) that person is qualified to be appointed as a judge; and
(b) does not hold a State office or Constitutional office.’117
Article 247 (1) of the Constitution gives the PP relatively secure tenure by pro-
viding that he/she shall retire from office on attaining the age of sixty years. It
further states that ‘The Public Protector may be removed from office on the same
grounds and (using the same) procedure as [those which] apply to a judge.’118
Although the Public Protector is established as a single-person entity and is
guaranteed autonomy, the implementing legislation seems to have made major
attempts to dilute this. Section 7(1) of the Public Protector Act 2016, for example,
creates the office of two Deputy Public Protectors, appointed by the Public Protector
on the recommendation of the Parliamentary Service. This seems contrary to the
Constitution which does not contemplate these positions. In fact, article 246 of the
Constitution categorically states that when the PP is unavailable to perform his/
her functions, the President shall appoint another person to perform that role. The
consequence of this could be to dilute the autonomy of the office. This is more so,
112
Report of the Constitutional Review Commission, June 1995, para 24.0.
113
Ibid.
114
Draft Constitution of the Republic of Zambia 1995, Clause 164(1).
115
Report of the Constitutional Review Commission (December 2005).
116
Constitution of Zambia (Amendment) Act of 2016.
117
Ibid Article 243(2).
118
Ibid Article 247 (3).
considering that in terms of section 21(3) of the Act, determination matters before
the PP should be according to the opinion of the majority members. The effect of
this is that the PP can be outvoted by the two deputies, who ironically do not have
any constitutional mandate.
The Public Protector has the power to investigate an action or decision taken
or omitted to be taken by a State institution in the performance of an administra-
tive function.119 Article 266 defines a State institution as ‘includ[ing] a ministry or
department of the Government, a public office, agency, institution, statutory body,
commission or company in which the Government or local authority has a con-
trolling interest, other than a State organ.’ (emphasis added) Under the same article,
a state organ is defined as ‘the Executive, Legislature or Judiciary.’ These provisions
create unnecessary ambiguity. State organs do not exist in abstract but are staffed
by human beings and, therefore, it seems counterproductive to immunise public
officers inhabiting those institutions. The rationale for this approach is unclear
and in any case flies in the face of the drafting history of the provision as it was
primarily to have officials in such key institutions amenable to the oversight role of
the Ombudsman in order to redress corruption and abuse of authority.
Article 244(2) defines an action or decision taken or omitted to be taken as an
action or decision which is ‘(a) unfair, unreasonable or illegal; or (b) not compliant
with the rules of natural justice’.
What constitutes rules of natural justice is not defined in the Constitution, but
is defined under section 2 of the Public Protector Act as:
The principles and procedures underlying the making of a decision or taking of an action
by a State institution, which are that an act or decision should be unbiased, transparent
and made in good faith; and that each party should have equal access to the person
taking the action or making the decision and should be aware of the facts of the decision
and the documents that are used or adduced by the person taking the action or making
the decision.
In furtherance of these functions, the PP has power under Article 244(3) of the
Constitution to:
(a)
bring an action before a court;
(b)
hear an appeal by a person relating to an action or decision taken or omitted to be
taken in respect of that person; and
(c)
make a decision on an action to be taken against a public officer or Constitutional
office holder, which decision shall be implemented by an appropriate authority.
(emphasis by authors)
Article 244(3)(c) suggests that the decision or action taken against a public officer
or constitutional office holder is binding and not a mere recommendation. This
seems to be in line with South African jurisprudence from which the current PP
model was borrowed. In the South African the case of Economic Freedom Fighters v
Speaker of the National Assembly and Other,120 South African Chief Justice, Mogoeng
Mogoeng, in relation to the powers of the Public Protector, stated:
119
Ibid Article 244(1).
120
[2016] ZACC 11.
If compliance with remedial action taken were optional, then very few culprits, if any at
all, would allow it to have any effect. And if it were, by design, never to have a binding
effect, then it is incomprehensible just how the Public Protector could ever be effective
in what she does and be able to contribute to the strengthening of our constitutional
democracy. The purpose of the office of the Public Protector is therefore to help uproot
prejudice, impropriety, abuse of power and corruption in State affairs, all spheres of gov-
ernment and State-controlled institutions. The Public Protector is a critical and indeed
indispensable factor in the facilitation of good governance and keeping our constitu-
tional democracy strong and vibrant.
The Public Protector Act, however, seems to deviate from this position in as much
as it does not expressly provide that remedial actions by the Public Protector are
binding. Section 6(2)(a), for example, in vesting the Public Protector with power to
consider administrative actions, only empowers the PP to make ‘recommendations’
to state institutions, contrary to the extensive powers given to the PP by article
244(5) of the Constitution which include ‘(d) enforcing decisions issued by the
Public Protector; and (e) citing a person or an authority for contempt for failure to
carry out a decision.’
While the Constitution has given the Public Protector extensive powers, these
powers are limited by provisions of 245 of the Constitution which divests him/her
power to investigate a matter which:
(a)
is before a court, court martial or a quasi-judicial body;
(b)
relates to an officer in the Parliamentary Service or Judicial Service;
(c)
involves the relations or dealings between the Government and (a) foreign govern-
ment or an international organization;
(d)
relates to the exercise of the prerogative of mercy; or
(e)
is criminal in nature.
While limitations (a) to (c) could be understandable as there might be better mech-
anisms for redressing complaints relating to those, the restrictions under (d) and
(e) are clearly unmeritorious. The exercise of the prerogative of mercy, for example,
has been used in the Zambian context to free politicians convicted of corruption
related offences in order to advance political interests of incumbent presidents.121
That abuse should surely be subject to the scrutiny of the Public Protector. Further,
the limitation of jurisdiction over complaints of a criminal in nature entails that
the PP may not, for example, investigate complaints of corruption, which is clearly
criminal and often the cause of maladministration.
121
‘President Edgar Lungu Pardons Jailed MMD MP Moses Muteteka’ available at https://www.
lusakatimes.com/2015/06/04/president-edgar-lungu-pardons-jailed-mmd-mp-moses-muteteka/
accessed 12 February 2019; ‘Pardoned Mbombo Praises his Saviour Lungu’ available at https://
www.zambiawatchdog.com/mpombo-praises-lungu-the-man-who-saved-him-from-prison/
accessed 12 February 2019; ‘Prison Life is Tough, Says Masumba’ available at http://www.dai-
ly-mail.co.zm/prison-life-tough-says-masumba/ accessed 12 February 2019; and ‘Convicted
former Labour Minister Austin Liato Released from Prison’ available at https://www.lusakatimes.
com/2015/08/24/convicted-former-labour-minister-austin-liato-released-from-prison/ accessed
12 February 2019.
Initiation of investigations is governed by section 13(1) of the Public Protector

Act which states that the PP may investigate an allegation of maladministration:
(a) on the Public Protector’s own initiative; or
(b) on receipt of a complaint made by
(i) a complainant acting in the complainant’s own interest;
(ii) an association acting in the interest of its members;
(iii) a person acting on behalf of a complainant;
(iv) a person acting on behalf, and in the interest, of a group or class of persons; or
(v) an anonymous person.
The Public Protector may refuse to investigate or discontinue an investigation on
grounds that the complaint is trivial, frivolous, vexatious or not made in good
faith; where the complainant does not have sufficient interest in a matter; where
the complainant has a right of appeal or other remedy that has not been exhausted;
or the conduct complained of has been subject of another investigation or another
action by another authority under a written law.122
When it comes to reporting, Article 248 of the Constitution states that the PP
shall report to the NA on matters concerning its affairs. Further, section 34(1) of
the PP Act requires the PP to submit a report to the Speaker of the NA, not later
than 90 days after the end of the financial year. Section 34(2) enjoins the Clerk of
the National Assembly to lay the report before the NA, not later than seven days
after the first sitting of the Assembly next after the report was received. This is an
improvement over the former legislation that required the PP to simply report to
the President.
It should be noted that although the law has been altered to establish the office
of the PP, the government has not funded the institution and at the time of writing,
only the name had really changed. The staff establishment and new institutional
structures have yet to be implemented. Despite this, a few potential positive and
negative lessons can be anticipated. Notably, the new requirement for the PP to
report to the National Assembly and not the President could enhance transparency
and accountability as the reports of the PP will be debated in the open and made
more accessible to the public. The changes to the law have also made the tenure
of the PP relatively more secure as he or she will only be removable in the same
manner as judges of superior courts. By being given power to make binding deci-
sions, the PP has more latitude to ensure better public administration. The Public
Protector, unlike under the former law where proceedings were in private, has now
been empowered to hold public hearings. This potentially enhances transparency
and accountability.
That said, the PP model may face several challenges on its way to being an effec-
tive defender of public interests. For example, as noted above, section 15 of the PP
Act has increased grounds on which the PP can refuse to investigate a complaint of
maladministration. As noted, some of these restrictions are completely unjustified.
122
Section 15(1) of the Public Protector Act 2016.
Further, section 11 of the Act requires the PP to take an oath of office provided
for in the Official Oaths Act.123 This oath requires the PP to bear allegiance to the
President, and therefore, waters down the autonomy of the PP. The role of the PP
should be to enforce constitutional administrative standards and not to be loyal to
the President.
Finally, as already noted above, section 21(3) of the PP Act states that the deter-
mination of a matter under the PP is by a majority. This dilutes the autonomy of the
PP and potentially means the PP could be outvoted by subordinate officers who do
not have any constitutional mandate to exercise the role of the PP. The PP, as the
bearer of the constitutional mandate, should have the final say.
5. CONCLUSION
The right to fair administration is not guaranteed in the Zambian Constitution,
although previous constitutional review efforts reveal a consistent desire to include
this right in the Bill of Rights. Notwithstanding the absence of a constitutional
right to administrative justice, the Constitution of Zambia contains provisions that
justify the court’s jurisdiction to conduct judicial review of certain administrative
conduct. The law applicable is the common law and the English procedural law pro-
vided under Order 53 of the Rules of the Supreme Court of England 1999. Courts
have not radically developed the common-law grounds for review nor have they
been creative with the remedies. There are alternatives to judicial review namely,
public inquiries, tribunals and the Public Protector. The Public Protector is a rela-
tively new office introduced as part of the 2016 amendment to the Constitution.
It replaces the former office of the Investigator General and has more powers than
its predecessor.
123
Chapter 5 of the Laws of Zambia Act.
Chapter 3
The Control of Administrative Power in

Zimbabwe and Implications of Substantive
Fairness as a Ground of Review
JUSTICE ALFRED MAVEDZENGE*
ABSTRACT
Prior to the adoption of the Constitution of ground for review, its potential ramifications
Zimbabwe in May 2013, the right to admin- on the doctrine of separation of powers, and
istrative justice was not guaranteed as a con- how these ramifications can be addressed. I
stitutional right but only as a statutory right. conclude by suggesting rationality and pro-
The ‘new’ Constitution recognises adminis- portionality as the appropriate standard of
trative justice as a constitutional right and review in order to establish the substantive
designates lawfulness, reasonableness and fairness of administrative conduct. Thus, I
procedural fairness as grounds for review. come to the conclusion that a review on the
These were already recognised in the stat- ground of substantive fairness is akin to a
ute, as grounds for review of administra- review on the ground of reasonableness and
tive conduct. However, the Constitution has therefore, it does not add anything substan-
now added ‘substantive fairness’ as another tively new to the rubric of administrative law
ground for review. This has triggered the review in Zimbabwe. However, by expressly
question whether the addition of substantive mentioning substantive fairness as a ground
fairness to the list of grounds for review intro- for review, the Constitution puts beyond
duces anything new to the rubric of admin- question that courts in Zimbabwe have the
istrative law review in Zimbabwe. In this jurisdiction to review not only the proce-
chapter, I grapple with this question by ana- dural fairness of administrative conduct but
lysing what substantive fairness entails as a also its fairness in substantive terms.
1. INTRODUCTION
The adoption of a new Constitution in 2013 introduced fundamental changes to
the administrative law review system in Zimbabwe. Prior to the 2013 Constitution,
the right to administrative justice existed as a statutory right provided for in
the Administrative Justice Act (AJA),1 but not as a constitutional right. The 2013
Constitution now recognises the right to administrative justice as part of the Bill
of Rights. In addition to elevating administrative justice to the status of a consti-
tutional right, the Constitution also introduces a new formulation of grounds of
review. It recognises ‘substantive fairness’ as amongst the grounds of review. This
*
Justice Alfred Mavedzenge has a PhD in Public Law from the University of Cape Town. He is a
Researcher at the Democratic Governance and Rights Unit and is a part-time constitutional law
lecturer at the University of Cape Town.
1
Chap 10:28 of 2004.
47
has generated a debate on whether this is a substantively new ground of review

or it is just a new formulation which means nothing more than an emphasis of a
review of the reasonableness and or proportionality of administrative conduct. My
main objective in this chapter is to grapple with this question. However, in order
to provide the necessary context, I begin by providing an overview of the available
avenues for the control of administrative power in Zimbabwe.
2. O
VERVIEW OF THE MECHANISMS FOR THE CONTROL OF
ADMINISTRATIVE AUTHORITY IN ZIMBABWE
The Zimbabwean administrative law system provides for the control of adminis-
trative authority through both non-judicial and judicial means. In the paragraphs
below, I highlight the non-judicial means of controlling administrative power.
(a) Non-judicial avenues for controlling administrative authority

Other than through judicial review, there are ‘non-judicial means’ through which
individuals and groups can seek access to administrative justice. These non-judi-
cial avenues include the control of administrative power through appeals bodies.
Appeals bodies or tribunals are provided for both in the Constitution2 and in leg-
islation.3 Persons who are aggrieved by certain decisions (including administra-
tive conduct) can appeal to these bodies for appropriate redress, which includes
setting aside the impugned decision and substituting the decision with another.
Non-judicial mechanisms also include the control of administrative authority
through parliamentary oversight. The Constitution gives Parliament the authority
to demand accountability from public officials (including Ministers) for the exer-
cise of public power and functions assigned to them by the law.4 Thus, persons who
are aggrieved by administrative decisions can report to Parliament and request the
legislature to demand accountability on their behalf.
As part of the non-judicial control mechanisms, Zimbabwe does not have an
appeals body with general power to control all kinds of administrative authority,
as is the case in other jurisdictions.5 However, the Constitution of Zimbabwe pro-
vides for the establishment of specialised ‘ombudsperson type’ institutions such as
the Auditor General, with limited jurisdiction to review specific kinds of admin-
2
These include independent constitutional commissions (such as the Zimbabwe Human Rights
Commission, the Zimbabwe Gender Commission, the Zimbabwe Media Commission) especially
when they review administrative decisions which impact on human rights.
3
For example, the Environmental Management Agency established in terms of s 9 of the
Environmental Management Act, Chap 20:27 of 2002; the Health Service Board established in
terms of s 3 of the Health Services Act, Chap 15:16 of 2004; the water catchment councils estab-
lished in terms of s 20 and s 21 of the Water Act, Chap 20:24 of 1998.
4
See s 119 (2) and (3) of the Constitution of Zimbabwe, 2013. This power is also exercised through
parliamentary portfolio committees which can summon public officials to appear and account
on the exercise of public power and performance of their functions.
5
For example, the Constitution of South Africa provides for the establishment of the Office of the
Public Protector. See ss 181(1)(a) and 182 (1) of the Constitution of the Republic of South Africa,
1996.
T he Control of A dministrative P ower in Z imbabwe 49
istrative authority. For example, the Auditor-General checks against maladminis-

tration in the way public resources are utilised. Another example is the envisaged
establishment of an ‘Independent Complaints Mechanism’,6 which is a body that
is meant to review complaints submitted by the public in respect of misconduct by
members of the security services. The non-judicial mechanisms also include the
guarantee of the constitutional right of access to information in section 62 of the
Constitution. This right can be exercised to access information held by the state
where the information is necessary for the enforcement of public accountability
or where the information is necessary for the protection of a fundamental right.7
Thus, individuals (who are Zimbabwean citizens and or those with permanent res-
idence status in Zimbabwe) can invoke this right in order to obtain information
necessary for them to review the appropriateness of administrative decisions, and
demand accountability from administrative officials.
Although the provision of these non-judicial avenues for the control of admin-
istrative powers should be seen as a progressive development in the Zimbabwean
legal system, their effectiveness has remained illusory to date. The reasons or
factors constraining the effectiveness of these mechanisms have already been dis-
cussed in detail by Professor Geoff Feltoe.8 Therefore, there is no need to regurgi-
tate them here save to summarise them as follows: some of the tribunals are yet
to be established;9 in some cases the enabling legislation (which is supposed to
regulate the operations of these tribunals) has not yet been realigned with the
Constitution;10 and these tribunals are under-resourced and they generally lack
the independence to discharge their functions properly. For these reasons, there is
a heavy reliance on judicial review as an avenue for the control of administrative
authority in Zimbabwe. This is notwithstanding the challenges confronting the
mechanisms for judicial review.11
(b) Judicial review

Judicial review has been given impetus following the introduction of a fully jus-
ticiable constitutional right to administrative justice. Prior to the adoption of
the 2013 Constitution, the right to administrative justice was provided for and
governed by the Administrative Justice Act [Chapter 10:28] of 2004 [AJA]. It was
therefore a statutory rather than a constitutional right. The right to administrative
justice is now enshrined in section 68 of the Constitution as follows:
6
Supra note 4 at s 210.
7
Ibid s 62 (1) and (2).
8
Geoffrey Feltoe A Guide To Administrative And Local Government Law In Zimbabwe (2012) at 12–13
and 116.
9
For example, the Independent Complaints Mechanism envisaged in the Zimbabwe Constitution
supra note 4 at s 210.
10
For example, the following legislation has not yet been realigned with the Constitution: The
Administrative Justice Act, Chap 10:28 of 2004 and the Access to Information and Protection of
Privacy Act, Act 20 of 2007.
11
These challenges include constrained judicial independence and limited access to courts due to
high costs of litigation.
(1) Every person has a right to administrative conduct that is lawful, prompt, efficient,
reasonable, proportionate, impartial and both substantively and procedurally fair.
(2) Any person whose right, freedom, interest or legitimate expectation has been
adversely affected by administrative conduct has the right to be given promptly and
in writing the reasons for the conduct.
Thus, similar to other comparative jurisdictions,12legality, reasonableness and
proportionality are recognised as grounds of review of administrative conduct
in Zimbabwe. These existed as grounds of review,13 prior to the adoption of the
2013 Constitution and they have been thoroughly examined by Feltoe.14 However,
the 2013 Constitution has also introduced ‘substantive fairness’ as an additional
ground of review. There is next to nothing in the Zimbabwean administrative law
jurisprudence which explains what a review on the grounds of substantive fair-
ness entails. Zimbabwean courts have the option to refer to foreign law from com-
parative jurisdictions, when interpreting the meaning of constitutional rights.15
However, substantive fairness is not expressly provided for in most comparative
jurisdictions,16 and this could make it difficult for Zimbabwean courts to draw
inspiration from foreign courts when interpreting and applying this ground of
review. In view of this, there is an apparent practical need to examine what sub-
stantive fairness as a ground of review entails and evaluate if it introduces anything
new that is not already covered under the grounds of review which existed prior to
the 2013 Constitution.
3. T
HE IMPLICATIONS OF SUBSTANTIVE FAIRNESS AS A GROUND OF
REVIEW
In the updated version of his seminal book on administrative law in Zimbabwe,
Feltoe17 argues (albeit without providing more detail) that:
Previously, administrative authorities were only required to carry out their duties in accord-
ance with principles of procedural fairness that is in accordance with principles of natural
justice. Section 68 [of the Constitution of Zimbabwe] adds a new requirement that in addi-
tion to administrative action being procedurally fair it must also be substantively fair.
I agree with Feltoe on the point that a review on the grounds of substantive fairness
is an inquiry into whether the decision imposes undue or unfair disadvantages on
the applicant. However, I respectively disagree with him on the point that this
is a new requirement. The crux of my argument is that although it is true that
prior to the 2013 Constitution, ‘substantive fairness’ was not expressly mentioned
12
Which include Kenya and South Africa, from whom the drafters of the 2013 Zimbabwean
Constitution borrowed.
13
See s 3(1) of the Administrative Justice Act, Chap 10:28 of 2004.
14
Feltoe op cit 8 at 93–116.
15
See supra note 4 s 46(1)(e).
16
For example, it is not expressly provided for in the comparative constitutions which include
the Constitutions of South Africa, Kenya, Namibia, Malawi and it is equally absent in the legal
frameworks of the United Kingdom and Canada.
17
See ‘A Guide To Administrative And Local Government Law In Zimbabwe’ 2012, available at https://
zimlii.org/content/new-constitutional-guarantee-administrative-justice, accessed on 8 March 2019.
as a ground of review, a review of the substantive fairness of conduct essentially

involves examining whether the decision-maker acted irrationally or in a dispro-
portionate manner, and consequently came to a decision which imposes unfair dis-
advantage on the applicant. These are the same considerations that are made when
a review is conducted on the grounds of reasonableness and I therefore argue that,
conceptually, this ground of review does not introduce anything substantively new
to administrative law review in Zimbabwe.
Before I explain these arguments, it is necessary to clarify as a point of departure
that section 68 (1) of the Constitution clearly shows that a review on the grounds
of substantive fairness is not the same as a review on the grounds of procedural
fairness. Section 68 (1) says every person has a right to administrative action that
is ‘both procedurally and substantively fair’. This implies that the two (procedural
and substantive fairness) are separate grounds of review.
The recognition of procedural fairness as a ground of review under the
Zimbabwean administrative law predates the 2013 Constitution, as mentioned
above.18 At the core of procedural fairness is the audi alteram partem rule which,
as Feltoe puts it, ‘requires that a decision affecting a person’s rights or his or her
legitimate expectations of receiving a benefit, advantage or privilege should only
be made after hearing first from that person and taking into account what he or
she has said.’19 This was recently underscored by the Zimbabwean High Court in
Augar Investments OU v Minister of Environment.20 Procedural fairness is encapsulated
as follows in section 3 (2) of AJA:
In order for an administrative action to be taken in a [procedurally] fair manner as
required by paragraph (a) of subs (1), an administrative authority shall give a person
referred to in subs (1) — (a) adequate notice of the nature and purpose of the proposed
action; and (b) a reasonable opportunity to make adequate representations; and (c) ade-
quate notice of any right of review or appeal where applicable.
A review of procedural fairness therefore focuses primarily on the decision-making
process, while a review of substantive fairness focuses on the decision itself. The
latter is a review of the substantive content of the decision and its impact on the
parties involved.21 Such an interpretation of substantive fairness as a ground of
review immediately attracts at least two criticisms.
18
See s 3(2) of the Administrative Justice Act, Chap 10:28of 2004. See also Affretair (Pvt) Ltd v
M K Airlines (Pvt) Ltd 1996 (2) ZLR 15 at para 21–22 where the Court held that administrative
action must be ‘procedurally proper, in the sense that the appropriate procedures required by the
statute have been followed and that the principles of natural justice have been observed.’
19
Also see Hippo Valley Estates Limited and Another v Minister of Environment, Water & Climate 2018
(HH 235-18, HC 7770/16) at p 5 and Augar Investments OU v Minister of Environment & Another
2015 (1) ZLR 502 (H).
20
2015 (HC 1017/14) ZWHHC 278.
21
Albeit briefly and without elaboration, Feltoe makes a similar proposition as follows: ‘It is not
clear exactly what is meant by ‘substantively fair’ and this provision will have to be interpreted
by our courts. It would seem, however, that the substantive outcome of administrative decisions
must be fair and the effect of administrative action must not be unfair. If this is correct it would
require the courts to examine the nature of the decision or action in order to evaluate its fair-
ness. …’ See Feltoe op cit note 17.
The first is that this interpretation conflates the court’s authority to conduct a
review and an appeal. Feltoe22 warns that:
The remedy of review must not be confused with that of appeal. The main difference
between these two remedies is that in an appeal what is in question is the substantive
correctness of the original decision whereas on review the High Court is not delving into
the substantive correctness of the decision, but is only determining whether there were
any reviewable procedural irregularities or any action which was reviewable because it
was ultra vires the powers allocated to the tribunal.
Thus, according to Feltoe, administrative law review should not be conflated with
an appeal. Similar echoes have been made in comparative jurisdictions.23 A review
on the grounds of substantive fairness, in the way that I conceptualised it above,
would seem to suggest that the focus of the court’s review would be on the merits
and impact of the decision, as opposed to the process of making the decision. This
could be perceived as an appeal rather than a review. On that account, my defini-
tion of substantive fairness could be criticised and challenged. However, criticism
on such basis should be viewed as untenable because the reality of administrative
law review on any ground may entail that the court must do more than examining
the decision-making process, but also inquire into the merits of the decision. In
actual fact, as Hoexter24 rightly observes, the focus of judicial review in adminis-
trative law frequently falls on the decision itself rather than the process of making
the decision.25 This led to Corder’s clarion call that:
We need openly to acknowledge that the old approach to distinguishing review from
appeal is no longer tenable. It is not necessary, as our courts have now been expressly
authorised to determine the reasonableness of administrative action, which must contain
a merit-based substantive element. However this is not an appeal nor is it a mere proce-
dural review: perhaps it would be better to describe what is required now, in all honesty,
as ‘substantive’ or ‘wide’ review.’ 26
Although this call was made in the context of South African administrative law, it
also applies with equal measure in the Zimbabwean context, especially in the post
2013 Constitution era. This is because section 68 of the Constitution expressly
authorises courts to review administrative action on grounds of reasonableness and
substantive fairness, which cannot be achieved without taking into account the
merits or impact of the decision. In that sense, my above stated conceptualisation
of a review of substantive fairness as an inquiry into the fairness of the impact of
22
Ibid at p 36.
23
For example, see Chief Constable of the North Wales Police v Evans 1982 (3) ALL ER 141 (HL) at
154d where Lord Brightman said ‘judicial review is concerned, not with the decision, but with
the decision- making process. Unless that restriction on the power of the court is observed,
the court will in my view, under the guise of preventing the abuse of power, be itself guilty of
usurping power’.
24
See Cora Hoexter Administrative Law in South Africa 2 ed (2012) 110.
25
Ibid at p 111, she develops this argument further by stating that ‘It is difficult, if not impossible,
to tell without entering into the merits of the decision whether sufficient weight was given to a
relevant consideration , or whether an ulterior motive was pursued by the decision maker …’
26
See Hugh Corder ‘Without Deference, With Respect: A Response to Justice O’Regan’ (2004) 121
South African Law Journal at 443.
the decision is within the parameters of how the court’s review powers have been
conceptualised under section 68 (1) of the Constitution.
Yet, it must also be acknowledged that the doctrine of separation of powers is
one of the pillars upon which the Zimbabwean Constitution rests.27 In its strict
sense, this doctrine precludes judges from pronouncing themselves on the merits
of administrative decisions.28 It confines their inquiry to reviewing procedural fair-
ness as opposed to substantive fairness. However, this is far from the type of separa-
tion of powers recognised under the Zimbabwean Constitution. The Zimbabwean
separation of powers doctrine is neither strict nor absolute. While the Constitution
grants the executive the power to make and implement administrative policies,
the judiciary also directly derives its authority from the Constitution to review the
substantive fairness of those decisions in order to protect citizens against poten-
tial abuse of power.29 However, as was emphasised by the Zimbabwean Supreme
Court in Affretair (Pvt) Ltd v M K Airlines (Pvt) Ltd30 the authority to inquire into
the merits of the decision should not be done in a manner which defeats the core
of the separation of powers. If not done carefully, a review into the substantive
fairness of the decision could easily lead the judges into the policy making terrain
where they begin to substitute the wisdom of the administrator with their own,
and in the process violate the separation of powers. To avoid that, there is a need
for courts to carve out a clear standard of review to be applied in order to maintain
a balance between respecting the separation of powers while at the same time
protecting people from substantively unfair administrative actions. The principle
remains though that a review on the grounds of substantive fairness is an inquiry
into the merits and impact of the decision. Such an inquiry is done for purposes of
establishing if the decision is substantively fair.
This brings to the fore the following question: what criteria should the courts in
Zimbabwe apply in order to evaluate the substantive fairness of an administrative
decision in a manner which strikes the balance between respecting the separation
of powers and the court’s duty to protect individuals from abuse of administrative
authority? A good starting point for discussing this question is section 3 (1) of the
AJA,31 which identifies the broad circumstances under which a person is permitted
to take an administrative decision on review.
In terms of that provision,32 any person whose ‘rights’ or ‘legitimate expec-
tations’ have been materially and adversely affected by administrative action, is
entitled to seek judicial review on the grounds of substantive fairness. In order
to identify the appropriate standard of review or factors which the court should
27
As articulated in the Zimbabwe Constitution supra note 4 at s 3(2)(e).
28
Eric Barendt ‘Separation of Powers and Constitutional Government’ (1995) Public Law 601.
29
See supra not 4 at s 68(1). See also the decision of the Constitutional Court of Zimbabwe in In Re:
Prosecutor General of Zimbabwe on his Constitutional Independence and Protection from Direction and
Control 2017 ZWCC 13 p. 9–11.
30
1996 (2) ZLR 15 at p 21–22.
31
Read together with the Zimbabwe Constitution supra not 4 at s 68 (1).
32
Ibid.
consider as part of the review, I propose to discuss separately (a) the review of
decisions which adversely affect rights and (b) decisions which affect legitimate
expectations.
(a) Substantive fairness in the context of decisions which affect rights

Most fundamental rights are not absolute.33 They may be subject to limitations
imposed by way of or as a result of administrative conduct. For instance, every
person in Zimbabwe has the right to freedom of trade.34 However, the exercise of this
right is subject to regulation and may be limited though administrative conduct.
For example, one must be issued with a licence before they can trade in certain
goods such as liquor. Therefore, the right to trade may be limited by a decision of
the municipality to refuse issuing an applicant with a liquor licence. Equally, every
person has a right to establish and maintain a private educational institution35 but
subject to acquiring a licence to do so. Many other rights in Zimbabwe, including
the rights to health care, housing, freedom of assembly, freedom of movement and
freedom of the media are subject to regulation and may be limited through admin-
istrative conduct.
However, in terms of section 68 (1) of the Constitution, every person has a right
to administrative conduct that is substantively fair. Therefore, individuals have a
right to take administrative decisions on review on the grounds that the impugned
decisions impose unfair limitations on the exercise of the affected rights. As high-
lighted earlier, the primary focus of the review is not on the process of making the
decision but on the merits and impact of the decision itself.
There is nothing in section 68 of the Constitution and in the AJA, which
explains the applicable standard of review or factors to be considered when con-
ducting a review on the grounds of substantive unfairness. I propose that reference
can be made to section 86 of the Constitution in order to identify these factors.
Section 86 — known as the limitation clause — sets out the general requirements
which must be complied with for any infringement of a constitutional right to be
accepted as valid. Limitations or infringements of rights through administrative
conduct are not excused from conforming to these requirements and therefore, it
is appropriate to refer to section 86 of the Constitution in order to establish factors
to be considered when reviewing administrative conduct on the grounds of sub-
stantive fairness.
Section 86 (2) of the Constitution states that:
The fundamental rights and freedoms set out in this Chapter may be limited only in
terms of a law of general application and to the extent that the limitation is fair, reason-
able, necessary and justifiable in a democratic society based on openness, justice, human
dignity, equality and freedom …
33
Ibid at s 86.
34
Ibid at s 64.
35
Ibid at s 75(2).
Thus, one of the requirements is that any limitation of a constitutionally recog-

nised fundamental right must be fair. As discussed earlier, whether a measure is
fair or not depends on the particular circumstances of the case. Invariably, this
involves weighing the competing interests of the parties involved. The question
therefore is, what is the appropriate standard of review, which the court should
apply when weighing these interests?
Section 86 of the Constitution identifies a number of factors which must be
considered when evaluating the constitutionality of a limitation. These factors are:
(a) the nature of the right or freedom concerned; (b) the purpose of the limitation, in
particular whether it is necessary in the interests of defence, public safety, public order,
public morality, public health, regional or town planning or the general public interest;
(c) the nature and extent of the limitation; (c) the need to ensure that the enjoyment of
rights and freedoms by any person does not prejudice the rights and freedoms of others;
(d) the relationship between the limitation and its purpose, in particular whether it
imposes greater restrictions on the right or freedom concerned than are necessary to
achieve its purpose; and (e) whether there are any less restrictive means of achieving the
purpose of the limitation.
When reviewing administrative conduct in order to establish substantive fairness
or lack thereof, the court should consider the factors listed above to the extent
that they are relevant to an inquiry into the fairness of a limitation. Stripped to its
essentials, section 86 requires any limitation of a constitutional right to be done
in terms of a law of general application36 and the limitation must be for a purpose
that is considered legitimate in the Zimbabwean constitutional democracy, and the
limitation must not infringe the right more than what is necessary to achieve the
intended purpose.37 Therefore, when weighing the interests of fairness against the
merits or the impact of the decision, the court should consider: (a) whether in the
first place, there is any legitimate purpose which the limitation seeks to achieve;
(b) if so, whether the limitation can, objectively speaking, be considered capable
of advancing the stated purpose of the limitation; (c) if so, the court should weigh
the significance38 of the infringed right against the importance of the intended
aim of the limitation;39 and (d) where both the right and the aim of the limita-
tion are equally significant to the Zimbabwean constitutional democracy, then the
court must review the nature of the limitation. Here, the court should evaluate
whether the nature and extent of the limitation does more harm than what is nec-
essary for the achievement of the intended aim of the limitation. Put differently,
the court should evaluate whether there are less restrictive means through which
the intended purpose could have been achieved.
Implicit in the above are necessity, rationality and proportionality as elements
of the standard of review applicable when establishing the substantive fairness of
36
See Iain Currie & Johan De Waal The Bill of Rights Handbook 6 ed (2013) 155–162 for a detailed
discussion on this.
37
For a detailed discussion on this, albeit in the South African context see Ibid at 162.
38
To the Zimbabwean democratic system.
39
See S v Makwanyane 1995 (3) SA 391 at para 104; and S v Bhulwana 1996 (1) SA 388 (CC) at para 18.
an administrative decision. The first leg of the test, where the court assesses if there
is a legitimate aim for the limitation, is essentially a necessity test whereas Craig40
puts it, the court has to be satisfied that there is a real or pressing need to limit
the right. The second leg of the inquiry, where the court evaluates whether the
infringement is objectively capable of furthering the achievement of the purpose
of the limitation, is a rationality test.41 The last leg of the inquiry, where the court
evaluates the nature and extent of the limitation is in essence a proportionality
test. Here, the court seeks to establish whether the impact of the decision does
more harm or imposes more restrictions than is necessary. When testing the pro-
portionality of the decision, regard must be had to the nature of the right.42 The
more weight the right carries in the country’s constitutional democratic system,
the least possible restriction should be permitted. Thus, the standard of review on
the grounds of fairness seems to consist of necessity, rationality and proportion-
ality. Ultimately, the review turns on proportionality implying that administrative
conduct which imposes disproportionate restrictions on the exercise of a constitu-
tional right is substantively unfair.
However, it must be noted that the requirements set out in section 86 apply
only to decisions which limit fundamental rights that are recognised in the
Constitution’s Declaration of Rights.43 Review of administrative conduct on the
grounds of substantive fairness applies not only to decisions which limit consti-
tutional rights but also those which adversely affect any other rights. This raises
the question whether the requirements set out in section 86 should also be applied
when reviewing administrative decisions which limit rights that are not constitu-
tional in nature but are recognised in other laws that are applicable in the municipal
legal system. I propose a differentiated approach, whereby courts strictly apply the
requirements set out in section 86 when reviewing substantive fairness of conduct
which infringes constitutional rights; and when reviewing decisions which affect
non-constitutional rights, the courts should apply section 86 as guidelines rather
than rules.
The rationale for this differentiated approach is that the Zimbabwe Constitution
attaches special protection to constitutional rights by expressly stating that any
limitation of these rights must comply with the requirements set out in section 86.
This is because the exercise of these rights is at the core of the Zimbabwean con-
stitutional democracy. It would therefore not be proper to apply the same rigorous
review (outlined in section 86) when judging limitations of non-constitutional
rights. However, by virtue of the principle of the rule of law44 non-constitutional
rights must also be protected. But this cannot be done by strictly applying the
requirements in section 86 because doing so would be giving constitutional status
40
Paul Craig Administrative Law 6 ed (2008) 586.
41
Hoexter op cit 24 at 340.
42
Craig op cit note 40.
43
See supra note 4 at s 86(2).
44
Enshrined in the Zimbabwe Constitution supra note 4 at s 3(1)(b).
to rights that are non-constitutional in nature. It is on this premise that I suggest

that where legislation does not indicate factors to be considered when reviewing
the substantive fairness of administrative conduct, courts should apply section 86
of the Constitution as guidelines rather than strict rules. In practice, that may
mean that although the court must insist that the conduct must meet the test of
necessity, rationality and proportionality (as is the case with limitation of constitu-
tional rights), the extent of justification required for limiting the rights should be
less than that which is required in cases which involve constitutional rights.
(b) Substantive fairness in the context of decisions which affect legitimate

expectations
Legitimate expectations is a legal term, originally developed in English law, which
is used to refer to the existence of an expectation that either a certain procedure
will be adopted before a decision is made or that a certain type of a decision will
be made. Such expectations may arise from a range of situations which include an
express assurance or promise by the administrator, a settled practice or an estab-
lished policy.45 Whether a legitimate expectation exists or not is a question of fact,
which is determined by the court on a case by case basis. However, there are at
least two types of legitimate expectations. One category comprises of expectations
that a certain procedure will be adopted when making a decision either because of
settled practice or assurances given by the administrative agency. These are called
procedural legitimate expectations.46
The second category is that of expectations which are of a substantive nature.
These are expectations that a substantive benefit will not be withdrawn or will be
conferred as a result of the impending administrative conduct.47 For instance, in
Goba v Zimra,48 applicant was a Zimbabwean citizen who had been a lawful immi-
grant living in Namibia for 12 years. He took on review the decision by the customs
authorities to deny him rebate on his imported motor vehicle. The Court49 held
that, upon his return to take up permanent residence in Zimbabwe, applicant had
a substantive legitimate expectation (created by the existing customs regulations
and settled practice) that he would be entitled to the immigrant rebate in respect
of his personal effects including one motor vehicle.
45
Hoexter op cit 24 at 421. Also see Premier, Province of Mpumalanga v Executive Committee of the
Association of Governing Bodies of State Aided Schools: Eastern Transvaal 1999 (2) SA 91 at para 35.
46
See for instance the South African case of Claude Neon Ltd v City Council of Germiston 1995 (3) SA
710 (W) at 719H.
47
John Campbell says ‘Substantive legitimate expectations are the promise of actual advantages
such as a licence, and are to be differentiated from procedural legitimate expectations, which
are lesser promises of merely a fair procedure before a decision is made’. See John Campbell
‘Legitimate Expectations: The Potential and Limits of Substantive Protection in South Africa’
(2003) 120 South African Law Journal at 293.
48
Goba v ZIMRA and Another 2015 4561/12(ZWHHC) 159.
49
Ibid at 6.
Substantive legitimate expectations cannot be enforced or protected by insisting

on procedural fairness only but also substantive fairness.50 An inquiry into substan-
tive fairness of administrative conduct is a review of the impact of the actual deci-
sion on the parties as explained earlier. It is not a review of the decision-making
process. It seems therefore that the fair treatment of substantive legitimate expecta-
tions is to be enforced through the right to substantive fairness, more than merely
insisting on the right to procedural fairness.
However, it cannot be taken for granted that the right to substantively fair
administrative conduct implies that substantive legitimate expectations are
enforceable in Zimbabwe. Paul Campbell51 observes that:
The question as to whether or not legitimate expectations can be substantively protected
is one of the most resilient controversies in modern public law. That it is not an easy
question is illustrated both by the length of time it has taken for answers to emerge in
various Commonwealth jurisdictions that inherited the concept from English law, and
by the different solutions adopted. The High Court of Australia and the Supreme Court
of Canada have decided that substantive protection is not possible.
Although Campbell and other scholars52 identify Zimbabwe as one of the jurisdic-
tions where the court has held that the law permits the enforcement of substantive
legitimate expectations, this pronouncement was made by a tax court and it was
prior to the constitutional change in 2013.53 It is therefore critical to examine the
jurisprudence in the post-2013 Constitution, and establish if there is any substan-
tive jurisprudence which confirms the notion that substantive legitimate expecta-
tions are enforceable in Zimbabwe.
The case of Goba v ZIMRA seems to be the only case thus far, in the post 2013
Constitution era, which has given the clearest indication on the enforceability of
substantive legitimate expectations. In this case, Hungwe J held that:
The right to benefit from the provisions of the Regulations has created, in my view, a
substantive legitimate expectation for permanent returning residents to Zimbabwe to
enjoy the associated benefits which flow from the Regulations. The authorities admin-
istering the regulations must do so rationally, fairly, non-arbitrarily and in an unbiased
manner. If a denial of a legitimate expectation in a given case amounts to denial of a
right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power
or violation of principles of natural justice, the same can be questioned on well-known
grounds of review.’54
It therefore seems clear that a decision which disappoints substantive legitimate
expectations is reviewable in Zimbabwe. However, this case was decided upon by
50
For instance, in Goba v ZIMRA (Ibid), even though the decision-making process may have been
conducted in accordance with all the procedural requirements of fairness, it still resulted in a
substantively unfair decision.
51
Campbell op cit 47 at 292.
52
Such as Rebecca Williams ‘The Doctrine of Legitimate Expectation May Prevent the Revenue
Authorities from Reneging on an Undertaking to a Taxpayer’ (2001) South African Law Journal at
242.
53
See ITC 1674 (2000) 62 SATC 116.
54
Op cit 48 at p 6.
the High Court, which in Zimbabwe, does not necessarily set precedent55 and is not
the final authority on constitutional interpretation. In view of this, and considering
that there are powerful counter-arguments which have been expressed against the
enforcement of substantive expectations, it may be necessary to engage with these
criticisms before coming to a conclusion that substantive legitimate expectations
are indeed enforceable in the Zimbabwean administrative system under the right
to substantively fair conduct.
One of the criticisms is that by enforcing substantive legitimate expectations,
the courts would be allowing legitimate expectations to harden into substantive
rights.56 The argument is usually that the courts must not allow legitimate expec-
tations to be enforced as if they were rights as doing so would conflate the legal
distinction between rights and legitimate expectations. The second criticism is
that giving courts the power to enforce substantive legitimate expectations would
undermine the authority of public officials to exercise discretion.57 It is a basic
tenet of every administrative system that public officials should have discretion
and that includes the power to change policies and practices in order to respond
effectively to contemporary challenges and realities. The argument is therefore
that insistence on the enforcement of substantive expectations may ‘ossify admin-
istrative policy- making’ and that it may therefore introduce a ‘chilling effect’ on
the administrative process.58
The point which seems to be missed by the above arguments is that the overall
purpose of the right to administrative justice is to control the exercise of public
power and protect people from abuse of public power which may result in unfair
decisions being made. Therefore, the central question in a review that is conducted
on the grounds of substantive fairness must be whether the impugned decision
is fair or not. There are a number of cases where the courts have found that the
failure to enforce substantive expectations of the applicant had resulted in an
unfair decision. For example, in the English case of Wells v Minister of Housing and
Local Government59 applicant had been told that he did not need to obtain planning
permission to erect the building he intended to erect. Applicant proceeded to erect
the building on the basis of the representation made to him. Allowing the Minister
to go back on that representation would result in a substantively unfair decision
against the applicant, who had already built his property without a planning per-
mission. In another English case of Robertson v Minister of Pensions60 the applicant
55
In the sense that another division of the High Court can make a different interpretation. For
example, the decision by Bere J in Kombayi and Others v Minister of Local Government 2016 HB-57-
16, HC 2371-15 (ZWBHC) 259 which held that the Minister did not have powers to suspend
and or remove a Mayor was contradicted by Dube J in Manyenyeni v Minister of Local Government
HH-274-16 at p 8–9.
56
57
Ibid.
58
See Søren J Schønberg Legitimate Expectations in Administrative Law (2000).
59
1967 (2) All ER 1041, 1967 (1) WLR 1000. Also see Lever Finance Ltd v Westminster (City) London
Borough Council 1970 (3) All ER 496, 1971 (1) QB 222.
60
1948 (2) All ER 767, 1949 (1) QB 22.
had been assured by the administrators that his disability was accepted as attrib-
utable to war service and he acted on it by not getting his own medical opinion.
In the Zimbabwean case of Goba v ZIMRA, the applicant would have been unfairly
treated if the customs agency had been allowed to go back on its own regulations
which grant a rebate to returning residents who meet certain requirements. There
are also instances where the failure to uphold the substantive legitimate expecta-
tions was found not to have resulted in an unfair decision.61
The outcome of any inquiry into the fairness of a decision depends on the spe-
cific circumstances of each case. A blanket excuse or rule against the enforcement
of substantive expectations, without examining the circumstances of the case, is
therefore incompatible with the right to substantively fair administrative conduct.
More so, such a rule would be unsustainable in a jurisdiction such as Zimbabwe,
where substantive fairness is expressly provided for as a ground of review. On that
basis, substantive fairness can be applied as a ground of review to evaluate the fair-
ness of a decision which adversely affects one’s substantive legitimate expectations.
Therefore, the question should not be: whether or not substantive fairness can be
applied as a ground of review in Zimbabwe when challenging a decision which
adversely affects substantive expectations. Rather the question should be: how
should courts conduct such an inquiry without ossifying administrative policy
making and without violating the doctrine of separation of powers, particularly
the principle that courts should accord due respect to both the authority and com-
petence of the administrator to exercise discretion fairly?
This leads to the next question, which is how should courts determine whether
the failure to uphold substantive expectations has resulted or would result in an
unfair decision without undermining the separation of powers doctrine? In order
to answer this question, perhaps the best point of departure is a consideration
of how English courts have dealt with the enforcement of substantive legitimate
expectations, since the concept of legitimate expectations is originally an English
law phenomenon.
Cora Hoexter has identified three approaches which have been taken by English
courts.62 She identifies them as the direct approach, the proportionality driven
approach and the Wednesbury (reasonableness) approach. It is worth it to discuss
these approaches and evaluate if they can be useful for a Zimbabwean court.
The ‘direct approach’ was applied by the Court of Appeal in R v North and East
Devon Health Authority, ex parte Coughlan (Coughlan.)63 As Geo Quinot notes,64 it
is referred to as the direct approach because the existing substantive legitimate
expectation is juxtaposed and weighed against any public or state interests which
demand the frustrations of the expectation. The facts in Coughlan were that a
61
See for example, the English case of Preston v Inland Revenue Commissioners 1985 (2) All ER 327.
62
Hoexter op cit 24 at 434.
63
2000 (3) ALL ER 850 (CA).
64
In Geo Quinot ‘The Developing Doctrine of Substantive Protection of Legitimate Expectations in
South African Administrative Law’ (2004) South African Public Law 556.
Miss Coughlan was living with severe disabilities and she was receiving care in a
national health facility. She had received several assurances from the authority that
she would be able to live out her days in the facility. However, the authority later on
decided to close down the facility for reasons that the costs of running the facility
were becoming excessive. Miss Coughlan sought judicial review of the authority’s
decision and the premise of her argument was that the decision was unfair because
the authority had induced in her a legitimate expectation that she would be able
to live and receive care in the facility for the rest of her life. In dealing with this
matter Lord Woolf MR accepted that Miss Coughlan had a substantive legitimate
expectation which could only be disappointed or withdrawn if ‘there is a sufficient
overriding interest to justify a departure from what has been previously prom-
ised.’65 A similar test had been applied earlier on in R v Secretary of State for the
Home Department, ex parte Khan66 where the government had made undertakings
to the effect that if certain conditions are met, one would be allowed entry into
the United Kingdom. The court held that the government could change those con-
ditions only after affording the affected persons a hearing and only if there is an
overriding public interest which requires those conditions to be changed notwith-
standing the existing undertakings.67
Thus, according to this approach a substantive legitimate expectation can be
disappointed only if there is an interest to be protected which is so significant to
the extent that it trumps the importance of the existing expectation. Put differ-
ently by Quinot,68 the court’s verdict should turn on the outcome to the ‘question
whether there are any public interest considerations militating against the substan-
tive protection of the [legitimate] expectation.’ This approach therefore suggests
that where a decision which adversely affects a substantive legitimate expectation
has been taken on review on the grounds of substantive fairness, the court must
engage in a three-step process of inquiry. First, the court must establish if indeed
there is a substantive legitimate expectation. If a substantive legitimate expectation
exists, the second step is for the court to inquire if there is a clear interest which
justified the withdrawal or disappointment of the representations which had been
made. The third step is that the court must determine fairness by weighing the
significance of the representation (substantive legitimate expectation) against the
significance of the stated interest which the public authority sought to protect by
withdrawing the representation earlier made.
This approach has been heavily criticised by scholars,69 on the basis that the
contemplated exercise of weighing the significance of the representation against
the stated public interest is somewhat lacking in precision. The standard of review
to be applied in that balancing exercise remains unclear.
65
Supra note 63 at para 58.
66
1985 (1) All ER 40 (CA).
67
Ibid para 46b.
68
Quinot op cit 64 at 557.
69
See Quinot op cit note 64 at p 558. Also see Paul Craig and Søren J Schønberg ‘Substantive
Legitimate Expectations after Coughlan’ (2000) Public Law 700.
This led to other scholars70 preferring the second approach where the court
applies the proportionality test in order to evaluate the fairness or unfairness of the
decision to frustrate substantive legitimate expectations. This approach was laid out
in the case of R (Abdi and Nadarajah) v Secretary of State for the Home Department,71
where Lord Laws LJ stated that a public authority can be permitted to go back on
its promise or past practice only if the public official has legal authority to do so
and if the decision to withdraw the promise is proportionate.72 It seems that the
court would have to engage in a three-step process of inquiry. First is to inquire
into whether there is a substantive legitimate expectation and if so, whether there
is any legitimate aim or interest which demanded that the public authority had to
go back on its earlier promise. The second stage of the inquiry would be to assess
if the withdrawal of the undertaking is proportionate. Proportionality is evaluated
by assessing if the withdrawal of the undertaking does not cause more harm than
is necessary to advance the legitimate aim which the public authority seeks to
protect or achieve by going back on its promise.73 Where the withdrawal of the
earlier made promise or the extent of the withdrawal of the undertaking is found
to be more drastic than is necessary to accomplish the stated legitimate aim, then
the decision should be deemed to be substantively unfair.
The third approach is where the court applies the Wednesbury principle of ration-
ality to assess the substantive fairness of administrative conduct which results
in the disappointment of a substantive legitimate expectation. The test was laid
out in Council of Civil Service Unions v Minister for the Civil Service74 (CCSU ) where
Lord Diplock held that a decision by an administrator to go back on his or her
earlier promise would be deemed unfair if such a decision is found to be irrational
in the sense that it 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.’75 A similar approach was taken by Hungwe J in the
Zimbabwean case of Goba v ZIMRA.76 Thus, before the administrator decides to go
back on its earlier undertaking, it must consult the party to whom the undertaking
was made. Further and more crucial to the current discussion is the requirement
that, before making the decision, the administrator must give adequate weight to
the fact that there is an existing undertaking to deliver or maintain a substan-
tive benefit to the party who may be affected by the decision. 77 After taking into
70
Such as Paul Craig Administrative Law 5 ed (2003) 655–656.
71
2005 EWCA Civ 1363.
72
Ibid para 68.
73
Cora Hoexter ‘Standards of Review of Administrative Action: Review for Reasonableness’ in
Jonathan Klaaren (ed) A Delicate Balance: The Place of the Judiciary in a Constitutional Democracy
(2006) 64.
74
1985 AC 374 (HL).
75
Ibid at para 410D–H.
76
Supra note 48 at p 8.
77
Schønberg op cit note 58 at p111.Also see The Bath Society v Secretary of State for the Environment
1991 (1) WLR 1303 (CA) at p 1310H–311F and Jacobs v Waks 1992 (1) SA 521 (A) at p 5491–551C.
account such considerations, and if there is a logical reason to withdraw the under-
taking, then the decision will not be deemed to be unfair.
This approach has been criticised for setting the bar too high to the extent
that several unfair decisions may pass the rationality test by virtue of being not so
outrageously illogical.78 Quinot expresses his reservation about this approach as
follows:
It is apparent that this approach results in a particularly ‘light’ form of review — the
administrator’s balancing of the opposing interests will not easily be disturbed since
the review court will, as a general proposition, not closely assess for itself the relative
importance of the interests involved, especially not those informing the public (policy)
dimension of the decision.79
These concerns led to the proposition that, in cases where the decision will under-
mine the exercise of a fundamental right, the court must also examine if the
decision is reasonable, in addition to the test of rationality outlined above. Lord
Bingham endorsed this proposition in R v Ministry of Defence, ex parte Smith80 when
he adopted the following submission:
The Court may not interfere with the exercise of an administrative discretion on substan-
tive grounds save where the Court is satisfied … that it is beyond the range of responses
open to a reasonable decision-maker. But in judging whether the decision-maker has
exceeded this margin of appreciation the human rights context is important. The more
substantial the interference with human rights, the more the Court will require by way
of justification before it is satisfied that the decision is reasonable in the sense outlined
above.81
However, it seems that the suggested more rigorous test is to be applied in cases
where human rights are affected and this led John Campbell82 to ask rhetorical-
ly:‘[Given that] these decisions all deploy the ‘Wednesbury method’ with a lowered
‘threshold of public law irrationality’ because of a human rights context, … could
that threshold not also be lowered for legitimate expectations?’
Campbell83 proceeded to propose that the more searching standard of review
which is applied in human rights cases should also be applied in cases where deci-
sions affect substantive legitimate expectations. To which Quinot84 elaborately
responded as follows:
78
See Lord Bingham MR’s remarks in R v North and East Devon Health Authority, ex parte Coughlan
(Coughlan case) at 647E. Also see R v In land Revenue Commissioners, ex parte Unilever plc 1996 STC
681 (CA) at 692d.
79
80
1996 QB 517 (CA).
81
Ibid at 554E–G. Lord Woolf developed the argument further in R v Lord Saville of New Digate,
ex parte A: 1999 (4) All ER 860 (CA) at 872e where he noted that ‘[I]t is not open to the deci-
sion-maker to risk interfering with fundamental rights in the absence of compelling justifica-
tion. Even the broadest discretion is constrained by the need for there to be countervailing
circumstances justifying interference with human rights.’
82
83
Ibid.
84
… it is not clear why substantive legitimate expectation cases call for heightened scrutiny
upon review. Campbell justifies this lowering of the review threshold with reference to
the similar lowering in cases affecting human rights. However, the reason for such simi-
larity of approach is not clear. In fact, logic would suggest the opposite. Fundamental to
the concept of legitimate expectations is the idea that the interest involved is not (yet) a
right, only something less than that, but still worthy of protection. Affording substan-
tive legitimate expectations the same protection afforded in cases where human rights
are at stake, because of the fact that such protection is afforded in the latter instances,
seems to be contrary to the stated fundamental premise of the legitimate expectation
doctrine.
Quinot does not elaborate on why substantive legitimate expectations should
not be accorded the same protection as fundamental rights, save for arguing that
the distinction between the two must be maintained. His reservations seem to
emanate from a traditional formalistic approach to the application of legal rules,
an approach which does not necessarily put justice at the centre of the application
of law. Admittedly, there are formal rules to be followed when interpreting the
meaning of provisions under section 68 of the Constitution, the right to admin-
istrative justice. However, the application of those rules (as set out in section 46
of the Constitution) requires courts always to prioritise the object and purpose of
the Bill of Rights in order to give ‘full effect to the rights and freedoms enshrined’
therein.85 The essence of the rights guaranteed in section 68 of the Zimbabwean
Constitution is to guarantee administrative justice with regards to conduct which
affects both rights and legitimate expectations. In part, this entails what Lord
Laws86 described as guaranteeing the citizens ‘good administration,’ which can
be achieved only when authorities are required to deal straight-forwardly and con-
sistently with the public. The Constitution of Zimbabwe identifies ‘good govern-
ment’ as both a constitutional value and a fundamental principle ‘which bind the
State and all institutions and agencies of government at every level’.87 In addition
to this, the right to administrative justice seeks to constitutionalise a culture of
justification,88 which requires public authorities to account for their conduct and
demonstrate that their decisions are reasonable in a democratic state that is based
on the principles of the rule of law and good governance.
These intentions will be defeated if public authorities are allowed to depart
from settled practice or dishonour their promises, without being called to account,
simply because the settled practice or the promises given are not human rights but
are legitimate expectations. Applying the Wednesbury principle of rationality may
85
See Mawere v Registrar General 2015 ZW 04 (CC) at para 20. Although this case concerns the
enforcement of the right to citizenship, it thoroughly discussed principles and rules of consti-
tutional interpretation that are applicable in Zimbabwe. Also see Rattigan v Chief Immigration
Officer 1994 (2) ZLR 54 (S) at 57 F–H.
86
In R (Abdi and Nadarajah) v Secretary of State for the Home Department 2005 EWCA Civ 1363
(Nadarajah case) at para 68.
87
Supra note 4 at s 3(2).
88
This is Etienne Mureinik’s proposition in the context of South Africa. See David Dyzenhaus ‘Law
as Justification: Etienne Mureinik’s Conception of Legal Culture’ 1998 South African Journal on
Human Rights at 32–33.
be as good as not holding them to account because, as indicated above, this prin-
ciple is far less searching and sets a very low bar of justification. In order to achieve
administrative justice, promote good government and to foster the intended culture
of justification, a solid and rigorous standard of review of administrative conduct is
required. The modified Wednesbury approach, proposed by scholars like Campbell
is far more solid and rigorous as a standard of review. As indicated above, it requires
the court to engage in an inquiry which assesses (a) the rationality of the decision
and (b) the reasonableness of the decision, by examining if the decision to depart
from settled practice or withdraw the promise is proportionate.
This approach does not deny public authorities their right to exercise discretion,
neither does it preclude them from changing policies to suit contemporary reali-
ties. It seeks to ensure that the ends of administrative justice, which include pro-
moting good government and a culture of justification, are protected by insisting
that public authorities do not depart from their settled practice or dishonour their
promises without a good reason to do so. The fact that administrative conduct
adversely affects substantive expectations (as opposed to fundamental rights),
should not on its own preclude courts from applying effective standards of review
to hold public authorities accountable, especially in jurisdictions such as Zimbabwe
where the Constitution expressly guarantees good government as a constitutional
value, and administrative justice as a right.
4. CONCLUSION
Given what I stated as the objective for this chapter, it is appropriate to conclude
by addressing the question whether the express inclusion of substantive fairness
as a ground of review in section 68 (1) of the Constitution should be seen as an
introduction of a new standard of review in the Zimbabwean administrative law
review system. Conceptually, substantive fairness as a ground of review does not
seem to be adding anything new to the fabric of standards of review applicable in
Zimbabwe prior to the 2013 Constitution. As shown in the foregoing discussion,
a review on the grounds of fairness deploys the same principles of rationality and
proportionality that are applicable under the test of reasonableness.
However, the express inclusion of substantive fairness as a ground of review
serves a practical purpose of lending more legitimacy to the courts’ role to protect
people from abuse of power by not shying away from reviewing the merits of admin-
istrative decisions. Zimbabwean courts have a chequered tradition of exercising
(sometimes unmerited) deference to the executive. In doing so, the courts have
traditionally applied a strictly procedural approach to administrative law review,
especially in cases which are politically sensitive. A case in point is Tsvangirai v
Registrar-General.89 Voting in a general election had been extended for a third day.
The applicant (who was leader of the main opposition party, with the majority of
its supporters in urban areas having been denied an opportunity to vote) was dis-
89
2002 (1) ZLR 251 (H).
satisfied with the way in which the voting had been conducted on the third day.
He requested the Registrar General and the Electoral Commission to extend voting
to a fourth day and the request was refused. Applicant took the Registrar-General
and the Electoral Commission on review. In disposing this matter, the Court inter-
preted its review powers to be confined to instances where there is illegality, irra-
tionality or procedural impropriety. As long as Applicant was consulted (through
his agents) before the Electoral Commission made the decision, then there was no
procedural impropriety, the court reasoned. This is notwithstanding that there was
a prima facie evidence pointing towards that the decision was substantively unfair
to Applicant and his supporters. Ironically, the 2013 Constitution was negotiated
between the governing party ZANU PF and applicant’s party MDC.
It is therefore not far-fetched to assume that the negotiators made sure that
substantive fairness is expressly included as a ground of review, in order to address
jurisprudential constraints such as those that had been experienced by applicant in
Tsvangirai v Registrar-General. Whether this is going to be effective depends on how
the courts will interpret their role in light of section 68 of the Constitution which
expressly demands them to review the substantive fairness of an administrative
decision. So far, the High Court in Goba v ZIMRA has indicated its preparedness
to scrutinise the merits of administrative conduct, using substantive fairness as a
ground of review.
Chapter 4
The State of Administrative Law in Malawi:

Systems, Structures and Emerging Issues
REDSON E. K APINDU* AND FIDELIS E. K ANYONGOLO †
ABSTRACT
Administrative law is an essential feature of Malawi — in particular having regard to par-
any functioning democracy. It plays a very ticipatory processes in rule-making and rule
important role in ensuring that those who application. The chapter also interrogates
wield public power and or perform public the effectiveness of quasi-judicial or extra-ju-
functions are held to account in the exercise dicial administrative justice mechanisms in
of their powers and functions in Malawi. Malawi. Overall, the chapter emphasises the
This chapter presents a general overview centrality of section 43 of the Constitution
of the current state of administrative law of Malawi, which guarantees the right to
in Malawi. It analyses the accessibility of administrative justice. The chapter high-
administrative justice and how administra- lights the paradigm shift brought by this
tive law fosters participatory democracy in right, to the administrative law discourse.
1. INTRODUCTION
Administrative law is a branch of public law that is concerned with the compo-
sition, procedures, powers, duties, rights and liabilities of the various organs of
government, public and other bodies that are engaged in administering public
functions.1 The primary purpose of administrative law is to keep the exercise of
the powers of public officials, or officials discharging public functions, within legal
bounds. Mureinik captures it succinctly when he states that the application of
administrative law is triggered wherever power is wielded, be it in central govern-
ment or local government, in corporate management or trust administration, in a
synod or faculty board.2
Whilst observing that administrative law is an important tool in controlling
and regulating the exercise of public power in a liberal constitutional democracy,
and thus preventing abuse of power, Adelman worries that administrative law may
easily lead to a preoccupation with due process rather than wider questions of
legitimacy and accountability.3 A good body of administrative law, however, must
seek to invoke due process to secure the legitimacy of substantive justice. Seidman

* Visiting Associate Professor of Law, University of Johannesburg; Judge, High Court of Malawi.
†
Associate Professor of Law, University of Malawi.
1
Anthony Bradley and Keith Ewing, Constitutional and Administrative Law (2007) 657.
2
Etienne Mureinik, ‘Administrative Law in South Africa’ (1986)103 South African Law Journal 615.
3
Sammy Adelman, ‘Accountability and Administrative Law in South Africa’s Transition to
Democracy’ (1994) 21 Journal of law & Society 317–328, 318.
67
astutely posits that ‘[t]he body of rules subsumed under the phrase administrative
law is … among the most important institutions for the maintenance of legal-ra-
tional legitimacy.’4 Administrative law is therefore central in ensuring the deep-
ening of constitutional democracy. As Akech has stated, ‘the establishment and
implementation of elaborate regimes of administrative law (containing princi-
ples, procedures, and remedies that circumscribe the exercise of both public and
private power) promise to contribute to the realization of democratic governance
in African countries.’5
This chapter proceeds from this general conception of administrative law and
its role in society. The chapter presents a general overview of the current state of
administrative law in Malawi. Its particular focus is on the accessibility of adminis-
trative justice and participatory democracy in administrative law (rule-making and
application); and the effectiveness of non-curial (quasi-judicial or extra-judicial)
administrative justice mechanisms.
The chapter is divided into three main parts. In the first part, the chapter
addresses the accountability question. It explores the role that administrative
law plays in keeping duty bearers, particularly public authorities, accountable for
the manner in which they exercise their powers and functions. The second part
addresses some nuanced or emerging issues in Malawian administrative law. These
include the extent to which administrative law may apply to the exercise of public
functions by private actors; issues of judicial deference in relation to administrative
justice and novel or emerging remedies in administrative law. Lastly, the paper
addresses alternative avenues to judicial review for administrative justice in Malawi.
2. ISSUES WITHIN JUDICIAL REVIEW

(a) Administrative review, ‘privatised’ public power and private power
When courts apply and enforce administrative law, and in the process engage in
judicial review of administrative action, their historic focus has been on the dec-
laration and enforcement of the law which determines the limits and governs the
exercise of public power. The mainstream approach to administrative law is that it
applies to situations where public power is exercised by public officials.
The question arises however, whether administrative law could also apply in
cases where the exercise of public power has been privatised. It is useful to point
out that Malawi generally applies English administrative law principles although,
as this paper demonstrates below, such principles ought to be viewed with great
circumspection in view of section 43 of the Constitution which has introduced
some radical shifts in Malawian administrative law. The section provides that every
person in Malawi has the right to ‘lawful and procedurally fair administrative
4
Robert Seidman, ‘Administrative Law and Legitimacy in Anglophonic Africa — A Problem in the
Reception of Foreign Law’ (1970) 5(2) Law & Society Review 161–162.
5
Migai Akech, ‘Globalization, and the Rule of (Administrative) Law, and the Realization of
Democratic Governance in Africa: Realities, Challenges, and Prospects’ (2013) 20(1) Indiana
Journal of Global Legal Studies 339 and 343.
T he S tate of A dministrative L aw in M alawi 69
action, which is justifiable in relation to reasons given where his or her rights, free-
doms, legitimate expectations or interests are affected or threatened.’6 The section
further provides that every person has the right to be given ‘reasons, in writing, for
administrative action where his or her rights, freedoms, legitimate expectations or
interests are affected.’7
Buckland & Higgisson point out that in the English context, in cases where the
source of the relevant power is neither statutory nor contractual, courts have looked
to the nature of the power in order to determine whether private bodies are subject
to judicial review. They argue that, where the power can properly be characterised
as ‘public’ in nature, then the exercise of such power is subject to judicial review.
Thus, in R v Panel on Take-Overs and Mergers; Ex-parte Datafin8 LIoyd, LJ held that
the source of the power will often be the decisive factor, but that it is still helpful
to look at the nature of the power. The Court stated that if the exercise of a body’s
functions have public law consequences, this may suffice to bring the body within
the reach of judicial review.9 Likewise, Chirwa argues against over-reliance on an
institutional approach to administrative law as public powers are increasingly also
exercised by private actors.10
A good example of private entities whose functions are of a public character
and whose conduct ought to be covered by administrative law are political parties.
Bradley & Ewing observe that
‘[c]entral to the role of modern democracy are political parties: they provide the policies
and personnel of government (and opposition) and have other important functions as
well … Yet political parties remain voluntary associations in the eyes of the law: bodies
exercising a public function but governed by private law.’11
In Malawi, political parties, that are likewise essentially private bodies, are governed
by both public as well as private law. For instance, political parties that receive State
funding in terms of Section 40(2) of the Constitution, are subjected to the rigours
of the Public Finance Management Act in the handling of funds from the State
in the same manner as any public entity. Again, the Political Parties Act of 2018
imposes wide-ranging obligations of a public character on political parties which
are a matter of administrative law’s concern. Political parties are thus regulated
and monitored by various statutory authorities including the Registrar of Political
Parties and the Auditor General, among others. The conduct and (or) decisions of
political parties in respect of some of their statutory obligations, therefore, are or
ought to be judicially reviewable notwithstanding that they remain, in essence,
private associations.
6
Section 43(a).
7
Section 43(b).
8
l9871 1 QB 81 5, at p. 847.
9
Ibid.
10
Danwood Chirwa, ‘Liberating Malawi’s Administrative Justice Jurisprudence from Its Common
Law Shackles’ (2011) 55(1) Journal of African Law 105–127 and 111.
11
Bradley & Ewing, supra note 1, p. 162.
In the case of Chioza v Board of Governors of Marymount Secondary School,12 the

issue of the amenability to administrative law review of private entities discharging
public duties fell for consideration. The Court held that ‘while the governors may
be performing some private law duties in the running of the school, I think that
they fall within the public domain when they perform such functions as the admis-
sion or expulsion of the students from the school and so render their decisions in
that respect susceptible to judicial review.’ The conclusion therefore is that public
power exercised by private entities (privatised public power) in Malawi is amenable
to administrative law review.
Further questions arise as to whether there are instances where administrative
law review may apply even to cases which concern the exercise of private power,
perhaps where the private power has a public character. In W.K. Saukila v NICO,13
the High Court took the approach that the provisions on administrative justice
under section 43 of the Constitution do not apply to administrative disputes that
are of a private character. The Judge was of the view that the application of section
43 of the Constitution did not extend to private bodies. It seems, however, that
in the case of Ngwenya & Gondwe v Automotive Products Limited,14 the Industrial
Relations Court (IRC) took a different approach. The Chairperson of the IRC (CP),
Hon. Mkandawire, faulted the reasoning of the High Court in W.K. Saukila v NICO.
He pointed out that section 43 is part of the Constitution and that the Constitution
does not discriminate between those in the public sector and private sector. He
observed that the Constitution did not say that only those in the public sector are
entitled to administrative justice. He was of the view that to hold that section 43
only applied to employees in the public service, or that it only referred to the use of
executive powers, would be tantamount to ‘constitutional suicide’.
This paper agrees with the approach of Mkandawire, CP in the Ngwenya case
although this was a decision of a subordinate court. Therein lies a difficulty as
it does not seem that there is any decision of the High Court or indeed that of
the Supreme Court of Appeal that clearly deviates from the Saukila decision. A
decision from which parallels may perhaps be drawn is the Supreme Court deci-
sion in Air Malawi Ltd v Ombudsman.15 In that case the Malawi Supreme Court of
Appeal clarified that in terms of section 123 of the Constitution the role of the
Ombudsman is to investigate the bureaucratic unfairness committed either advert-
ently or inadvertently by public or private officials and agencies. This wide con-
ception as regards the breadth of the Ombudsman’s jurisdiction has also recently
been echoed by the same court in State v Ombudsman ex parte Principal Secretary for
Finance and 2 others.16
12
[1996] 19 MLR 109. See also Mangani v Trustees of Malamulo School of Medical Sciences civil cause
no 356 of 1992 (unreported).
13
Civil Cause No. 117 of 1997.
14
Matter No. 180 of 2000 (IRC).
15
MSCA Civil Appeal No. 1 of 2000.
16
MSCA Civil Appeal No. 24 of 2017 (decided on 11th February 2019).
Thus, whilst the general common-law position is that the jurisdiction of the
Ombudsman is confined to issues of maladministration in the public sector, the
Supreme Court of Appeal has taken a wide approach that extends the same to the
private sector in respect of section 123 of the Constitution. Therefore, there seems
to be no justification for confining the application of section 43 of the Constitution
to the public sector when the right is guaranteed for every person in respect of
whom administrative action has been taken.
Interestingly though, in the Ngwenya case, the IRC observed that the phrase
‘administrative justice’ was not to be confused or used synonymously with the
phrase ‘administrative law’. The IRC held the view that there is a dividing line
between ‘administrative justice’ under section 43 of the Constitution and ‘admin-
istrative law’ as commonly understood. We argue that this approach is incorrect.
Clearly section 43 of the Constitution espouses administrative law principles and
it gives those principles the status of supreme law. As Chirwa rightly observes,
section 43 of the Constitution has ‘revolutionized’ administrative law.17 Among
other things, it provides for a new basis for judicial review that departs from the
old common-law premises.18 For instance, the section recognises ‘justification’ as
a new ground for review which is broader than irrationality; and that it also pro-
vides for the ground of ‘reasons in writing’ which is a new ground unavailable at
common law. Chirwa has therefore correctly expressed the view that section 43 of
the Constitution is the new organizing framework for judicial review in Malawi
and that common-law administrative law principles are subservient and are now
only of secondary importance; as an aid to the interpretation of section 43.19 We
submit that Chirwa’s approach is the right approach on the place occupied by the
right to administrative justice under section 43 of the Constitution in the broader
spectrum of administrative law in Malawi.
(b) The enduring role of the (English) common law

It is pertinent to note that section 200 of the Constitution provides for the con-
tinued application of the common law in the post-1994 constitutional dispensa-
tion.20 However, students of Malawian administrative law must be mindful that
section 43 of the Constitution has brought a paradigm shift in Malawian admin-
istrative law especially with regard to the grounds for judicial review. Whilst a
number of recent decisions still seem to be rooted in the old common-law grounds
as famously stated in Council of Civil Service Union v Minister for the Civil Service21
namely illegality, irrationality and procedural impropriety, it appears that a trend
is slowly emerging of decisions taking a more expansive approach to section 43. For
17
Chirwa, supra note 10, 106.
18
Ibid, at 107.
19
Ibid, at 108.
20
21
[1984]3 All E R at page 949.
instance, in the case of State v Council of the University of Malawi, Ex-Parte University
of Malawi Workers’ Trade Union (Merits),22 the High Court observed that:
in order to determine whether the decision taken is justifiable in relation to reasons
given, the Court must necessarily examine the merits of the decision. The Court held
that Section 43 of the Constitution cannot and ought not to be left out in any complete
discourse on judicial review of administrative action in Malawi.
In Chakuma & 16 Others v The Judicial Service Commission and the Chief Justice23
the High Court also took an expansive approach to judicial review, noting that
the basis for judicial review is grounded in the Constitution and not merely in
common-law principles such as ultra vires. She affirmed the view that ‘courts have
an obligation to ensure that administrators and others who hold public power not
only act within powers granted to them but also function in accordance with the
laws enacted by the legislature as well as with the ethos, values, principles and
edicts espoused by the Constitution.’
What emerges from these decisions is a clear departure by the courts from settled
common-law positions as they embrace constitutional innovations in the area of
administrative law, brought about principally by section 43 of the Constitution.
It should also be borne in mind that the High Court (Civil Procedure) Rules,
2017 provide for judicial review, under Order 19 Rule 20. This rule makes provision
for judicial review on grounds which include lawfulness; procedural fairness; justi-
fication of the reasons provided, if any; or bad faith, if any.
It is evident however that whilst Order 19 Rule 20 of the CPR, 2017 seeks to
capture the essence of section 43 of the Constitution, it still limits the scope of judi-
cial review to the conduct of public officials exercising public functions. A broad
approach to constitutional interpretation however, as discussed earlier, facilitates
our understanding of the scope of judicial review under the Constitution beyond
such conduct by public officials.
(c) Judicial deference: the appropriate role of the judiciary in relation to the
executive under the separation of powers
Judicial deference in administrative law is a principle that requires courts to be
restrained in interfering with matters that are pre-eminently within the domain
and competence of other branches of Government. The notion of constitutional
deference was eruditely explained by the Constitutional Court of South Africa in
Minister of Health v Treatment Action Campaign (TAC case),24 where the Court stated
that although there are no bright lines that separate the roles of the legislature,
the executive and the courts from one another, there are certain matters that are
pre-eminently within the domain of one or other of the arms of government and
22
Miscellaneous Civil Cause No. 1 of 2015 (HC)(ZA).
23
Judicial Review Cause No. 22 of 2018 (HC)(ZA), para. 2.11.
24
2002 (5) SA 703, para. 98.
not the others, and that all arms of government should be sensitive to and respect
this separation.25
It has been argued elsewhere that that since the judiciary is the final arbiter on
the constitutionality of laws or conduct in a system of constitutional supremacy,
and also considering that courts make the final determination on the scope of
their own powers, it is necessary that ‘the courts must have mechanisms of self-re-
straint to prevent them from unnecessarily interfering with the functions of the
other branches of government.’ Redson Kapindu argues that courts need to be
fully cognizant of the need to allow an appropriate margin of discretion for the
other state organs.26 He however also warns against the dangers of the judiciary
becoming over-deferential and, in the process, sacrificing the protection of human
rights at the altar of judicial deference. Commenting on a stream of administrative
law decisions resting with Mazibuko v City of Johannesburg,27 Kapindu argues that
the approach taken by the South African Constitutional Court in Mazibuko was
so deferential to the legislature and the executive as to signify a retreat from its
constitutional obligation in promoting the neglected socio-economic rights of the
voiceless, powerless and marginalised members of the South African society.28
In Malawi, the issue of judicial deference has come out in a number of notable
decisions. One such decision is Ministry of Finance ex parte SGS Malawi Limited (SGS
case)29 where Mwaungulu J stated that matters involving social and economic policy
(and generally matters involving competing policy considerations) are clearly
non-justiciable in judicial review proceedings and that courts should defer to the
executive and parliament. A similar expression of caution was sounded in State v
Chief Secretary to the President and Cabinet, Ex-Parte Bakili Muluzi (Ex-parte Muluzi).30
The issue of deference was also raised in Gable Masangano & Others v Attorney
General & Another (Masangano case).31 The Court however adopted a less deferential
approach stating that: ‘On the argument that social-economic rights are non-justi-
ciable we would like to suggest that modern legal and judicial thinking has signifi-
cantly diminished the importance of such an assertion.’ Masangano thus represents
the appropriate caution that courts need to take in order to avoid the dangers posed
by an over-deferential approach to executive administrative decisions on the pro-
tection of fundamental human rights.
Courts sometimes are deferential towards the other branches of government
principally on pragmatic premises. Jamie Grace states that legal academics some-
times describe the refusal by the courts of a remedy, even when a claimant has
25
Ibid.
26
Redson E. Kapindu, ‘Reclaiming the frontier of constitutional deference: Mazibuko v City of
Johannesburg — a jurisprudential setback’, (2010) 25 Southern Africa Public Law 471–472.
27
2010 (4) SA 1 (CC).
28
Kapindu, supra, note 26, at 474.
29
Miscellaneous Civil Application No. 40 of 2003 (HC)(PR).
30
Miscellaneous Civil Application No.3 of 2011 (HC, MR, unreported).
31
Constitutional Case No. 15 of 2007 (HC, PR).
established that the action or decision of a public body has been unlawful, as an
issue of ‘judicial deference’, or ‘comity’.32
The issue of judicial deference in administrative law cases has also come to be
highlighted in cases where Malawian courts have recently started drawing a dis-
tinction between ‘administrative action’ and ‘executive action’.33 In State v DPP,
Ex-Parte Trapence and Mtambo,34 a panel of the High Court of Malawi sitting on
a constitutional case held that the Director of Public Prosecutions (DPP) exercises
executive functions or powers and not administrative powers. The court stated that
such executive powers, being derived from the Constitution, are amenable to judi-
cial review only in ‘rare and extreme circumstances’. In the instant case, the court
did not find rare and extreme circumstances to warrant judicial review.
In Chaponda & Another v Kajoloweka & Others,35 the High Court had made an
order suspending a Cabinet Minister from discharging his functions pending the
conclusion of the work of the Commission Inquiry into the procurement of maize
by a state agency from Zambia which was linked to the Minister. On appeal, the
Supreme Court held that presidential powers derived from prerogatives which
do not have any statutory or constitutional underpinnings or limitations are not
amenable to judicial review; but that other prerogative powers are reviewable. The
Court held that the presidential powers to appoint Ministers and Commissions of
Inquiry do not fit into the category of powers that are subject to judicial review.
What these cases demonstrate is that when it comes to the exercise of executive
powers, courts are expected to be more deferential as compared to instances where
administrative action is in issue. Such judicial deference is a testament to the fact
that courts give due regard to the concept of separation of powers even when exer-
cising judicial functions such as in cases of judicial review. The judiciary, as the
ultimate arbiter of the constitution and all laws applicable in Malawi, has the role
of giving clear guidance on the demarcations of power provinces between the exec-
utive, the legislature, the judiciary and independent oversight institutions.
(d) Exploring progress in developing novel remedies

Administrative law has seen some new developments in the area of remedies in
recent times in a number of jurisdictions. One of the innovative remedies fash-
ioned in South Africa is that of meaningful engagement which can be traced to a
series of judgments of the Constitutional Court36 but was first adopted as the defin-
itive remedial measure in Occupiers of 51 Olivia Road, Berea Township and 187 Main
Street Johannesburg v City of Johannesburg.37 In the Olivia Road case, at issue was the
eviction of illegal squatters from certain abandoned buildings in the Johannesburg
32
Jamie Grace, Constitutional & Administrative Law: Key Facts Key Cases (2016) 216.
33
See Kapindu J’s remarks in State v Director of Public Prosecutions, Ex-parte Gift Trapence and Timothy
Pagonachi Mtambo, Miscellaneous Civil Cause No 16 of 2016 (High Court, Zomba) (unreported).
34
Constitutional Cause No. 1 of 2017 (unreported).
35
MSCA Civil Appeal No. 5 of 2017 (unreported).
36
See for instance Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).
37
2008(3) SA 208 (CC).
inner city. The Constitutional Court, instead of making the usual declaratory and
other coercive orders, opted instead to order the parties ‘to engage with each other
meaningfully’ in an effort to resolve the differences and difficulties aired in the
application in the light of the values of the Constitution, the constitutional and
statutory duties of the municipality and the rights as well as the duties of the
persons concerned. The Court clarified that ‘engagement is a two-way process
in which the [parties] would talk to each other meaningfully in order to achieve
certain objectives,’ and that ‘engagement has the potential to contribute towards
the resolution of disputes and to increased understanding and sympathetic care if
both sides are willing to participate in the process.’ 38
Malawian Courts have started to adopt a similar approach. In Inkosana Kangawa
Mhone & Others v Malawi Housing Corporation,39 a case involving a decision to
conduct mass evictions, the Judge held that this was an appropriate case where the
Respondent (the Malawi Housing Corporation) and the Applicants had to seriously
and meaningfully engage with a view to arriving at a mutually agreed lasting solu-
tion to the problem.40
Another interesting area in terms of administrative law remedies is that of
the award of compensation for unlawful administrative decisions. Traditionally,
Malawian courts have not been keen on awarding compensation as a remedy in
administrative law review cases. It is worth it to note however that section 46(3)
of the Constitution makes it clear that compensation is one of the remedies the
Constitution prescribes for violation of constitutional rights, which include the
right to administrative justice under section 43. However, in what seems to be a
lone decision thus far, Vincent Vundo Msiska v Malawi Dairy Industry,41 the Court
grappled with the issue of constitutional damages for wrongful administrative
action under the 1994 Constitution. The Court noted that there was not much,
if any, local case authority on awards for breach of constitutional rights to fair
administrative and labour practices. However, in the circumstances of the case, the
Court proceeded to award the plaintiff K10,000.00 for violation of his constitu-
tional right to fair administrative and labour practices.
It seems however, regrettably, that the approach in Vincent Vundo Msiska v
Malawi Dairy Industry has not gained much traction in Malawian courts in disputes
premised on administrative and constitutional law.
The position is in fact not unique to Malawi. James Read has stated that the
absence of a general common-law right to damages for unlawful administrative
action is one of the most striking areas of common deficiency in the legal systems
38
See also Shanelle Van Der Berg, ‘Meaningful Engagement: Proceduralising Socio-Economic
Rights Further or Infusing Administrative Law with Substance’ (2013) 29(2) South African Journal
of Human Rights 376.
39
Miscellaneous Civil Cause No 76 of 2014 (MZ) (unreported).
40
A similar approach was adopted in State v Malawi Housing Corporation, Ex-Parte: Malawi Housing
Corporation Tenants Association Limited, Judicial Review Cause No. 32 of 2017 (ZA) (unreported).
41
Civil Cause Number 1034 of 1995 (HC, PR) (unreported).
of the modern Commonwealth, and further that it has surprisingly received little
attention in public discussion.42
(e) The role of indigenous law in administrative law

The role of indigenous (customary) law in administrative justice in Malawi is a fairly
under-explored area. It can safely be stated that whilst customary (indigenous) law
forms a major plank of law fully recognized under the Malawian Constitution,43
the same has not been given appropriate recognition by the courts in fashioning
the affairs of the State.44 There remains a sense that received principles of law are
given more weight than indigenously generated ones. There is evidence however
that courts are slowly beginning to explore this area. In State v Traditional Authority
Kampingo Sibande, Ex- Parte Michael Phiri,45 the High Court observed that customary
law governs people’s day to day lives in many parts of Malawi. The court then
stated that just like the common law, customary law may be sub-divided into ‘public
(customary) law’, in cases where decisions of the Chief or his or her subordinate
leaders, purely in the exercise of statutory or customary law powers are challenged;
and ‘private (customary) law’ which regulates horizontal disputes between persons
under the authority and jurisdiction of the Chief (commonly called ‘subjects’) in
their private capacities. The Court concluded that such horizontal disputes would
also include a dispute between the Chief himself or herself, in his or her private
capacity, and any of his or her ‘subjects’.
Interestingly, the Court also stated that in the event that the distinction between
public and private customary law that the court drew in that case had not been pre-
viously recognised, the Court would be content to apply the provisions of Section
10(2) of the Constitution of Malawi and develop the customary law in that regard.
It is yet to be seen how other courts will embrace or perhaps eschew the pro-
posed split of customary law into public and private in the context of administra-
tive law as set out by the Judge in Ex Parte Michael Phiri.
As a general parting point here, it is important that Malawian institutions,
including the courts, should embrace a national project of ‘developing an autoch-
thonous or indigenous legal system sensitive to the needs and mores of the society.’46
3. A CULTURE OF ACCOUNTABILITY
The underlying principles of the Constitution of Malawi have a predominantly
liberal democratic orientation.47 These include governmental accountability and
also the guarantee of socio-economic rights, the right to administrative justice,
42
James S Read, ‘Damages in Administrative Law’ (1988) 14(1) Commonwealth Law Bulletin 428–429.
43
See sections 10(2), 26 and 200 of the Constitution.
44
See Jack Oliver-Hood, ‘Our Significantly Indigenous Administrative Law: The Treaty of Waitangi
and Judicial Review’ (2013) 19 Auckland University Law Review 53–54.
45
Miscellaneous Civil Cause No. 15 of 2014 (unreported).
46
Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005] 4 SLR(R) 604, per Andrew
Phang, JA para. 27.
47
and the right to effective remedies among others. One significant issue that the
underlying principles raise is how the constitutional and general conception of
administrative justice in Malawi interfaces with the principles. In this part, the
paper argues that administrative law is central in ensuring the accountability of
public officials in a constitutional democracy.
(a) The role of administrative justice in facilitating participatory democracy

Administrative justice significantly contributes to the development of participatory
democracy.48 During the past two decades, Malawi’s administrative law framework
has significantly developed, in the process enhancing participatory democracy.
During this period, each of the three branches of government has instituted some
administrative justice mechanisms and processes which have promoted participa-
tory democracy.
The executive has ensured the expansion of opportunities for public participa-
tion in administrative rule making, rule application and adjudication through the
promulgation and enforcement of regulations, rules and guidelines using various
and specific delegated legislative powers. The legislature has also played its part in
facilitating the contribution of administrative justice to participatory democracy
by enacting legislation which expands opportunities for people to participate in
rule-making processes in a wide range of areas, including local government, envi-
ronmental management, land allocation, settlement of land disputes and physical
planning. On its part, the judiciary has facilitated the contribution of adminis-
trative justice to participatory democracy through its exercise of judicial review
powers to promote participation in different contexts. For example, the courts have
exercised judicial review powers to protect the right of police and military per-
sonnel49 as well as prisoners to participate in elections; the making of local govern-
ment by-laws;50 and participation by family members in the process of determining
succession to traditional leadership.
However, the contribution of administrative justice to participatory democracy
in Malawi has been limited by a number of institutional and contextual factors
such as widespread lack of public knowledge or awareness of administrative justice
institutions, inaccessibility of the institutions, a culture of deference to authority,51
48
John H. Ely, ‘Toward a Representation-Reinforcing Mode of Judicial Review’ (1978)37 Modern
Law Review 451.
49
Nkhwazi v Referendum Commission Civil Cause No.96 of 1993.
50
State v Blantyre City Council, ex parte Chikwiri and 6 others [2016] MWHC 560. The Applicants were
in the business of hosting wedding ceremonies and similar functions at various residential areas
within the City of Blantyre. Following a ban imposed by the city council on the hosting such
activities in residential areas within the city, the High Court held the respondent’s action to be
in breach of administrative justice principles and lifted the ban.
51
Booth observes that deference to authority and officialdom is widespread among people
in Malawi and has deep roots in social norms. See David Booth et. Al., Drivers of Change and
Development in Malawi, 2005. Further, in a 2008 Afrobarometer study, over 50% of respondents
in the 2008 Afrobarometer survey strongly agreed with the statement that ‘people are like chil-
dren; the government should take care of them like a parent.’Afrobarometer, Malawi Round 4
Survey, 2008.
capacity constraints in public administration institutions and the judiciary, and an

inadequate regulatory framework.
Enhancing the scale and quality of the contribution of administrative justice
to participatory democracy requires a number of interventions, including raising
public awareness and knowledge of administrative norms and processes. The chal-
lenge with this intervention is that its effects can be felt only in the medium to
long term. In any case, raising public awareness and knowledge does not neces-
sarily translate into willingness and ability of people to claim and enforce rights.
The inability and unwillingness of people to claim their rights despite decades
of rights education programmes underscores the trite observation that awareness
and knowledge do not directly translate into behaviour change. However, such
awareness and knowledge are a necessary first step towards enhancing the pros-
pects of citizen participation in administrative processes and to utilise administra-
tive justice tools to secure broader democratic participation.
Another intervention with significant potential to facilitate the contribution of
administrative justice to participatory democracy is the adoption of a mechanism
for tracking the extent to which the public’s contributions have a real influence on
administrative decision-making processes. This intervention will address one of
the most significant causes of low public participation in governance and service
delivery in Malawi, namely, the widespread public perception that public partici-
pation in governance and service delivery is cosmetic and does not have any real
influence on final decisions and actions.
Enhancing participation in administrative processes also requires interven-
tions on the supply side of the governance regime, including the incorporation of
administrative justice norms into regulations and rules than is presently the case.
Currently, most statutes and subsidiary legislation which govern public adminis-
tration enacted prior to the adoption of the current Constitution in 1994 make
little provision for participatory democracy in administrative rule-making, rule-ap-
plication and adjudication. Since 1994, Parliament has not undertaken any com-
prehensive review of legislation to ensure that it reflects constitutional standards
of administrative justice. As a result, the statutory landscape comprises legislation
with varying standards of administrative justice which contributes to inconsisten-
cies in administrative practices and unequal access to justice. This challenge could
be addressed in part by enacting framework legislation on administrative justice
setting out common administrative law standards across the whole public service.
Capacity-related factors on the supply side of administrative justice limit its
contribution to democratic participation, including the shortage of administrators
with sufficient knowledge of principles of administrative law and justice. In the
civil service, for example, very few officials below the rank of district commissioner
or chief executive officer have had any formal instruction in administrative law.52
52
IRDC, Administrative Law and Governance in East Africa. A Research report, available at https://
idl-bnc-idrc.dspacedirect.org/handle/10625/56967, Accessed on 17 October 2019.
The second factor hampering the capacity of the majority of public administra-
tors to perform their administrative justice obligations is inadequate, ineffective
and inefficient communication and record-keeping facilities which are required for
facilitating effective public participation in administrative processes.53 Although
significant improvements have been made in some areas, especially with initiatives
such as digitisation of administrative data, there is continued reliance on poor-
ly-managed records which are generated and maintained in manual form.
The potential for administrative justice mechanisms and processes to contribute
to public participation is constrained further by political factors, including the
central government’s tendency towards centralisation of power. The starkest mani-
festation of this tendency was the decision by the President not to call for local gov-
ernment elections in 1995 as required by the Constitution. It was not until 2000
that the elections were called. Between 1995 and 2000, therefore, the country did
not have a local government system.54 Consequently, various structures through
which the public could have participated in local government rule-making, rule-ap-
plication and adjudication were non-existent. In this case, therefore, democratic
participation was undermined by the absence of political will to establish adminis-
trative structures through which the public could enjoy such participation.
After the 2000 local government elections, government once again shirked its
responsibility to call local government elections until 2014. Even after local gov-
ernment authorities were elected and once again became operational in 2014, the
capacity of the structures to facilitate democratic participation was severely limited
by the failure of the central government to fully devolve political and administra-
tive power as well as financial resources as envisaged by the national decentralisa-
tion policy. The reasons for that failure are both technical and political, including
the reluctance of political and administrative actors at the centre losing access to,
and control of, public resources55 and the manipulation and capture of local gov-
ernment by the centre which prevents effective democratic participation.56
Political factors also undermine the potential of administrative justice to con-
tribute to democratic participation through the application of political pressure on
administrative decision-makers in particular circumstances. Such political interfer-
ence has, on a number of occasions, led to administrators’ abuse and abdication of
their statutory discretion for the financial and or political benefit of politicians and
53
Mpho Ngoepe and Salmon Makhubela, ‘Justice Delayed is Justice Denied: Records Management
and the Travesty of Justice in South Africa’(2015) 25(3) Records Management Journal 288–305.
54
See Richard Tambulasi, ‘Local government without governance: A New Institutional Perspective
of Local Governance Policy Paralysis in Malawi’ (2011) 26(3) Public Policy and Administration
333–352.
55
See Mustafa K Hussein, ‘Decentralisation and Development: The Malawian Experience’ (2004)
29(2) Africa Development. Also see Asiyati Lorraine Chiweza, ‘The Political Economy of Fiscal
Decentralisation: Implications on Local Governance and Public Service Delivery’ in Dan Banik
& B Chinsinga (eds.), The Democratic Dividend: Political Transition and Inclusive Development in
Malawi (2016) 111–127.
56
See Lovese Aalen & Ragnhild Muriaas (eds.) Manipulating Political Decentralisation: Africa’s
Inclusive Autocrats (2018).
their financial partners. High profile examples of such instances include the case
in which administrators appeared to abdicate their statutory power to facilitate
public participation in a proposed multi-million dollar water supply project by con-
ducting environmental and social impact assessments.57 The Malawi Law Society
challenged the implementation of the big water supply project on the grounds that
there could be no implementation without prior environmental impact assessment
involving public participation, as required under section 24 of the Environment
Management Act. The High Court granted the Law Society interim relief but the
decision was later overturned on appeal on technical grounds.58
In another example, the case of Mhango & Others v Council of the University of
Malawi,59 a minister directed the administrators of a public university to adopt a
particular students’ admissions policy, contrary to statutory requirements for par-
ticipation in such decisions by members of the university’s senate. In that case,
the applicants who were university students, had been admitted to the University
of Malawi on a non-residential basis. They challenged the university’s decision to
admit them on non-residential basis. They also assailed the university’s criteria of
selecting students to the university by considering their districts of origin and not
solely on grounds of merit. The applicants argued that the selection criteria was
discriminatory and applied for judicial review asking the court to declare the deci-
sion of the council of the university ultra vires. They contended that the council of
the university unlawfully fettered its own powers under the University Act when it
adopted a directive of the government of Malawi to change the admission criteria
from merit as the sole criterion and to include district of origin. They also argued
that the university had failed to comply with its statutory obligation to consult
the university senate on matters of academic policy. The court found that the uni-
versity had indeed unlawfully fettered its powers under the University of Malawi
Act by simply adopting a government directive. The Court also found that the
university was at fault by implementing an academic policy without consulting
the Senate as it was required under the Act. Further, the court held that university’s
decision to found its admission criteria on the basis of district quota and not solely
on merit was unfairly discriminatory. However, the Court ended up dismissing
the judicial review claim on the ground that it had been brought late, having been
brought to court three years after the impugned decision was taken.
(b) The role of administrative justice in facilitating the realisation of socio-

economic rights
Administrative justice institutions and processes have also contributed to the
protection and enforcement of education, labour, housing, water, and economic
57
See S v Lilongwe Water Board & Others; Ex Parte: Malawi Law Society (Judicial Review Cause No.16
of 2017) [2017] MWHC 135 (21 April 2017).
58
Lilongwe Water Board & Others v Malawi Law Society, MSCA Civil Appeal No. 59 of 2017
(unreported).
59
[1993] 16(2) MLR 605.
activity rights. Instances of such contribution include statutory enactment and

judicial pronouncement of standards of procedural fairness in relation to the
administration of the delivery of water, education and healthcare services and the
facilitation of economic activity.
Over the past two decades, for example, Parliament has enacted a number of
legislative provisions which have imposed express obligations on administrative
bodies involved in rule-making, rule application and adjudication directly related
to socio-economic rights to afford persons affected by their decisions the right
to be heard. In the past decade, the obligations have been expressly imposed on
some institutions with critical roles in democratic governance and delivery of
socio-economic services, including the Registrar of Financial Institutions,60 the
Water Resources Authority,61the National Council for Higher Education62 and the
Teachers Council of Malawi, among others.63
Socio-economic rights have also been promoted through the expansion of
public participation in administrative rule-making by duty-bearers involved in the
delivery of socio-economic rights. In some cases, this has taken the form of pro-
viding for public, civil society and stakeholder representation in decision-making
bodies, including the National Disaster Preparedness and Relief Committee whose
membership is required by statute to include at least three representatives of the
non-governmental sector;64 the governing board of the Water Resources Authority
whose membership is required to include representatives of each of the following:
catchment management committees, associations of water users, non-governmental
organizations engaged in the water sector and key private sector stakeholders;65 the
Fisheries Advisory Board whose members are required to include nominees of small
scale commercial fishermen, large scale commercial fishermen, fish traders and the
general public;66 the Tripartite Labour Advisory Council which consists of, among
others, and nominees of trade unions and employers’ organisations.67
The judiciary has also contributed to the protection and enforcement of some
socio-economic rights through the application of administrative justice norms,
especially by way of reviewing administrative action. The broader contribution of
judicial review to administrative justice is discussed in more detail elsewhere in
this paper. In the past two decades, some progressive administrative justice norms
pertaining to socio-economic rights have been developed by the courts. In Gable
Masangano v Attorney General and others the claim was for violation of the rights
of detained persons to proper ventilation, food, clothing and other amenities as
60
Section 27(4) of the Financial Services Act (2011).
61
The Authority has the overall mandate to regulate the use of water resources in Malawi.
62
Cap 30:12 of the Laws of Malawi.
63
Under s 57 of the Education Act, Cap 30:01 of the Laws of Malawi.
64
Section 6, Disaster Preparedness and Relief Act, Cap 33:05 of the Laws of Malawi.
65
Section 8(3)(a), the Water Resources Act, Cap 72:03 of the Laws of Malawi.
66
Fisheries Conservation and Management Act (1998), s 5(1)(d)–(g).
67
Labour Relations Act, Cap 54:01 of the Laws of Malawi, s 55(1)(b)–(c).
guaranteed by the Constitution.68 In S v Lilongwe Water Board and Others; Ex Parte:

Malawi Law Society the High Court, among other things, ordered the government
to grant the Malawi Law Society access to information on aspects of the adminis-
tration of a major water supply project.69 Critical issues in the case related to the
conduct of an environmental and social impact assessment (ESIA).
On the whole, it seems the overall contribution of administrative justice insti-
tutions and processes to the protection and enforcement of socio-economic rights
remains significantly limited by the absence of express constitutional or statu-
tory guarantees of socio-economic rights such as food, water and housing. In the
absence of such guarantees, administrative decision-makers and the courts lack the
normative basis on which they can develop compliance with human rights stand-
ards as a specific obligation of administrators and a specific ground for judicial
review. 70
The contribution of administrative justice institutions and processes to the real-
isation of socio-economic rights is also constrained by limited access to adminis-
trative justice institutions by the vast majority of people whose socio-economic
rights are violated. The same forms of deprivation that make certain sections of the
population vulnerable to abuses and violation of their human rights impede them
from overcoming financial barriers that obstruct their access to administrative
justice institutions. In addition, civil society representation of marginalised and
excluded communities and individuals in defence of their socio-economic rights is
significantly more limited.
The role of civil society organisations in facilitating the realisation of human
rights through administrative processes requires more than enhancing the institu-
tional capacity of civil society organisations. Although the level of organisation of
citizen groups is critical,71 equally important are the existence of epistemic com-
munities, networks, and interest groups72 and the dynamics of the sectoral inter-
ests of particular stakeholder groups.73
Although the right to administrative justice is guaranteed by the Constitution,
its potential to contribute to the enhancement of participatory democracy and
the enjoyment of socio-economic rights is currently constrained by a number of
factors. Such factors include the low levels of citizen awareness of, and demand for,
68
Gable Masangano v Attorney General & others [2009] MLR 171.The Court held, amongst other
things, that matters involving such rights are justiciable.
69
[2017] MWHC 135 (21 April 2017), Judicial Review Cause No.16 of 2017.
70
On the advantage of using human rights as a sui generis ground (not a species of the ground of
illegality). See Mark Tushnet, ‘New forms of judicial review and the persistence of rights-and
democracy-based worries’ (2003) 38 Wake Forest Law Review 813–838.
71
Donald Hornstein, ‘Complexity Theory, Adaptation, and Administrative Law’ (2005) 54(4) Duke
Law Journal 913–960 and 929.
72
Martin Shapiro, ‘Administrative Law Unbounded: Reflections on Government and Governance’
(2000) Indiana Journal of Global Legal Studies 369 and 325.
73
Maureen Berner, Justin Amos and Ricardo Morse, ‘What Constitutes Effective Citizen Participation
in Local Government? Views from City Stakeholders’(2011) 35(1) Public Administration Quarterly
128–163.
their constitutional rights to lawful, fair, transparent and accountable treatment

by administrative agencies; financial and other barriers which impede access to
justice institutions; gaps, contradictions and ambiguities in the law that governs
local government administrative agencies;74 excessive deference to authority; and
procedural and other constraints on parliamentary and judicial oversight powers
over administrative processes and decisions.
Despite years of delivery of a range of interventions aimed at addressing the
constraints listed above, including civic and rights education programmes and
capacity building of public administration and judicial institutions and processes,
the majority of people in the country remain unable to claim and enforce their
rights to administrative justice. This highlights the limitation of relying on the
enforcement of rights as the primary approach to promoting administrative justice
in Malawi. A more effective and efficient alternative approach in the Malawian
context may be to focus on the obligations of decision-makers to deliver adminis-
trative justice.
4. ALTERNATIVES TO JUDICIAL REVIEW

(a) Are recommendations made by ombudsman-type bodies binding?
There are a number of alternatives to judicial review as a means of remedying
breaches of administrative law, including through statutory appeal and review tri-
bunals and constitutional bodies such as the Human Rights Commission and the
Ombudsman. Tribunals are discussed in the next section while this section focuses
on the Human Rights Commission and the Ombudsman. These two institutions
are required and empowered to assist any person or group of persons, whether
natural or legal, in ensuring the promotion, protection and enforcement of the
rights contained in the Constitution and redress any grievances in respect of those
rights.75 The discussion focuses on the binding nature of recommendations and
directives that the Human Rights Commission and Ombudsman make in the exer-
cise of their respective constitutional mandates.
The Constitution empowers the Ombudsman to investigate allegations of injus-
tice where no judicial remedy is available or where there is no other practicable
remedy. Under section 126 of the Constitution, the Ombudsman can ‘direct’ that
appropriate administrative action be taken. Further under the Ombudsman Act,
the Ombudsman can take any appropriate action or steps to remedy a situation. In
2017, the Ombudsman registered 219 complaints, 139 of which related to injustices
arising from employment relations, while 56 focused on service delivery.76 Where
the Ombudsman determines that injustice was occasioned, he or she is empowered
to grant various remedies including setting aside the impugned decision.77
74
Diana Cammack, Edge Kanyongolo and Tam O’Neil, ‘Town Chiefs in Malawi’ (2009) Africa Power
and Politics Working Paper No. 3.
75
Section 15(2) of the Constitution.
76
See http://www.ombudsmanmalawi.org/files/pdf/1524125989.pdf Accessed 17 October 2019.
77
Section 8(1) of the Ombudsman Act (Cap 3:07).
In addition to making recommendations relating to specific complaints that

are filed by members of the public, the Ombudsman has also made recommenda-
tions based on investigations undertaken on the office’s own initiative. In the past
few years, such investigations have covered mental health care administration, the
protection of children living rough on the streets by district and city councils, and
the administration of a compensation fund for victims of historical human rights
abuses.
Since the office became operational in 1998, the question whether the recom-
mendations or directions made by the Ombudsman are binding has been the subject
of academic debate and litigation with a variety of differing judicial opinions.78
However, the clearest response to this question was given by the Supreme Court
of Appeal in the 2019 decision of State v The Ombudsman ex parte Principal Secretary
for Finance and 2 others.79 The Ombudsman had received a complaint regarding
the manner in which the executive and the legislature disposed of tractors, which
had been procured for distribution to rural farmers. Upon investigation, the
Ombudsman made several remedial directives. Dissatisfied with the Ombudsman’s
findings, recommendations and directives, the respondents applied to the High
Court for their judicial review. The court agreed with the respondents and held
that the Ombudsman’s determinations and recommendations were not binding
as she lacked jurisdiction. On appeal, the Supreme Court of Appeal held that ‘the
respondents [were] obliged to comply with the Ombudsman’s directed remedies.’
The ultimate effect of this decision is that remedial orders by the Ombudsman
have binding authority and should be recognised by the judiciary.
In relation to the Human Rights Commission, there has been less judicial
clarity on whether its recommendations are binding. The differences between
the Ombudsman and the Human Rights Commission may partly be explained by
their different mandates. While the constitutional mandate of the Ombudsman
empowers the office to ‘direct and order’, that of the Human Rights Commission
is only to ‘recommend’ measures. Recommendations do not create a mandatory
obligation.80 Further, the Human Rights Commission Act provides that once the
Commission makes recommendations to the competent authority, such authority
must ‘consider the recommendation[s] and take such action as it deems fit.’81 Further,
construing section 130 of the Constitution provides that the Commission ‘shall
not exercise a judicial or legislative function’, the MSCA, in the case of Trustees of
78
See the differing opinions in Ombudsman v Malawi Broadcasting Corporation, MSCA Civil Appeal
Number 23 of 1999 on the one hand; and Air Malawi v Ombudsman, MSCA Civil Appeal no. 1 of
2000, and Malawi Broadcasting Corporation v The Ombudsman, MSCA Civil Appeal No 47 of 2000
on the other.
79
MSCA Civil Appeal No. 24 of 2017 (decided on 11th February 2019).
80
In S v President and Another ex parte Chihana and 3 others (Misc. Civil Cause No. 86 of 2015)
[2015] MWHC 439, the High Court held that recommendations generally are not binding and,
therefore, the decision of the President to appoint one person as Clerk of Parliament despite the
Parliamentary Service Commission’s recommendation of another was upheld by the court.
81
Section 22(e) and (f).
Malawi against Physical Disabilities v The State and the Ombudsman,82 held that the
Commission can only recommend and not make binding decisions on anyone. It
therefore follows that recommendations made by the Commission have no binding
force.
The lack of an explicit constitutional or statutory provision, or judicial prec-
edent that provides that the directives or recommendations of the Ombudsman
are binding does not prevent the creative use of other means of securing the same
result. Even prior to the decision in the case of State v The Ombudsman ex parte
Principal Secretary for Finance and 2 others in which the court held that the recom-
mendations of the Ombudsman are binding, the Ombudsman had been able to
rely on a combination of constitutional provisions to make its recommendations
de facto binding. Following a failure of an institution or official to comply with
any of the Ombudsman’s recommendations, the office of the Ombudsman reports
the non-compliance to the Legal Affairs Committee of Parliament which typically
inquires into the matter and, if so minded, orders the errant institution to comply
with the Ombudsman’s recommendation. Since orders of parliamentary commit-
tees are binding, the recommendations of the Ombudsman now become binding
as in effect Parliament takes them over as its own. Using this parliamentary route,
the Ombudsman has secured compliance even from public institutions, including
those which in the past routinely ignored any recommendation or directive by the
Ombudsman based on the view that they were not binding.
It is open to the Human Rights Commission to adopt the approach taken by the
Ombudsman by using the opportunities presented by statutory provisions, such as
section 37 of the Human Rights Commission Act, under which the Commission
reports to Parliament, by reporting the institutions which had not complied
with its recommendations. Parliament could then adopt the recommendations,
summon the responsible actors and issue a directive that the recommendations be
complied with. Failure to obey such directive (and, by extension, the recommenda-
tions) would constitute contempt of Parliament, an offence whose maximum pun-
ishment is a fine of £200 and imprisonment for two years.83 This approach would
enhance deterrence against non-compliance with recommendations made by the
Commission while, at the same time, obliging non-compliant administrators to
give reasons for their failure to comply with the recommendations.
(b) Mechanisms to encourage full public participation

In Malawi, public participation in governance is generally very low. A 2019 study
on democratic accountability indicates low levels of participation in governance
processes illustrated by the following findings: only 23% of the population reported
having ever attended a district council meeting, 18% had attended a community
rights committee meeting while 9.4% reported that they had attended a meeting
82
[2000–2001] MLR 391.
83
Section 19 of the National Assembly (Powers and Privileges) Act (Cap. 2:04).
to discuss public service delivery.84 Respondents attributed their low levels of par-
ticipation to limited access to information, lack of knowledge of the opportunities
and mechanisms for participation and limited accessibility to decision-makers and
decision-making processes.
In any case, the availability of opportunities to participate in rule making, rule
application and adjudication does not necessarily translate into effective participa-
tion which influences the resulting decisions and actions.85 There is a widespread
perception across the country that public participation has little influence on final
decisions and actions taken by public officials and institutions. In the 2018 demo-
cratic governance and justice survey, this perception was cited by many respond-
ents as a significant reason why some people do not participate in community
governance and service delivery activities and processes.
Encouraging full public participation, therefore, requires not only expanding
opportunities for public participation through such interventions as raising public
awareness and knowledge of available opportunities and mechanisms for participa-
tion, especially at community level. It also requires improving the effectiveness of
such participation through measures such enhancing the public’s access to infor-
mation and tracking of decisions and activities for inclusion of inputs from the
public participation.
(c) Administrative appeals and review tribunals

Malawi does not have an overarching administrative appeal or review tribunal.
Instead, tribunals are established by different statutes and mandated to exer-
cise their powers in specific areas. These include Land Tribunals, the National
Service Tribunal, the Patents Tribunal, the Trademarks Tribunal, the Registered
Designs Tribunal, the Liquor Licensing Appeals Tribunal, the Rent Tribunal, the
Environmental Tribunal, the Aviation Tribunal, the Child Case Review Board, the
Education Appeals Tribunal and the Financial Services Appeals Committee.
A number of ‘informal’ tribunals also play a significant role in public admin-
istration and their contribution to administrative justice must not be ignored.
Established variously under customary, religious and other normative regimes,
such tribunals form part of the country’s informal justice system which is consid-
ered to be more accessible, less costly and more attuned to community standards
and conceptions of justice. Some of the most widely used ‘informal’ tribunals are
chiefs’ tribunals, whose functions include resolving administrative justice ques-
tions regarding succession to chieftaincy and village and farm boundaries. Religious
tribunals are equally important in the lives of people in Malawi, the majority of
whom are affiliated to religious formations. These tribunals play critical roles in
rulemaking, rule application and adjudication which affect the right to adminis-
trative justice of such a large part of the population. The work of such tribunals is
84
Malawi Government, Justice and Democratic Accountability Survey, 2018.
85
Ibid.
so important that it must be acknowledged and critically assessed in any consider-

ation of the institutional framework of administrative justice in Malawi. The effec-
tiveness of administrative tribunals may be assessed both subjectively and objec-
tively. The former focuses on the individual tribunal’s attainment of its own set
objectives, while the latter assesses effectiveness with reference to broader justice
delivery criteria. There is, however, no national framework for the qualitative and
quantitative evaluation of the performance of tribunals. This makes it difficult to
reach any definite conclusion on the effectiveness of individual tribunals.
The challenge of measuring the effectiveness of tribunals may be addressed by
developing and implementing a common framework of standards based on admin-
istrative justice norms applicable to all tribunals; establishing a uniform format for
keeping records of all cases handled by all tribunals; setting up a digital system for
centrally archiving all records of the cases and conducting regular assessments on
the effectiveness and efficiency of case-handling by the tribunals.
The country’s financial constraints suggest that new administrative tribunals
should not be established unless there is an exceptional need for them. Indeed,
there is need for structural reform which must focus on rationalising, systematising
and judicialising tribunals without which ‘administrative justice remains a clut-
tered and fragmented affair.’86
In the absence of comprehensive and systematic collection and keeping of
records on the operation of all tribunals, the amount of resources invested in them
is difficult to establish. However, given the widespread resource shortages in public
service and justice sector institutions, it seems unlikely that adequate resources
would be invested in tribunals.
The diversity of tribunals and absence of common procedural standards that
govern them is reflected in variations in the processes for appointing their members.
Despite their differences, however, the processes share some common characteris-
tics. For example, members of almost all statutory tribunals are appointed and
removable from office by a cabinet minister. The other feature shared across stat-
utory tribunals is the vagueness of the grounds on which members of tribunals
may be removed from office. In most cases, the minister is empowered to remove
a member of a tribunal. The power of the minister over the appointment and
removal of tribunal members limits their autonomy. This is compounded by the
vagueness of the grounds for removal whose effect is to grant very wide discre-
tion to ministers and undermine the security of tenure of members of tribunals.
Subjecting the powers of appointment and removal to direct oversight and control
by the Public Appointments Committee of parliament is likely to enhance public
confidence in the impartiality of the tribunals and their structural and operational
independence.
86
Stephen Thomson, ‘Clutter and Cobwebs: How administrative tribunals in Hong Kong can learn
from the UK’ (2017) 36(3) Civil Justice Quarterly 363–386.
The processes for appointment and removal of members of traditional and reli-
gious tribunals are as varied as there are communities and religious groups, and are
internal matters in which courts are typically reluctant to intervene. Nevertheless,
since the constitutional standards of administrative justice are applicable to both
legal and natural persons, appointment and removal from membership of tradi-
tional and religious tribunals must, as a minimum, comply with the requirements
of procedural justice.87
(d) What measures should be taken to enhance access to information?

Access to public information and to administrative justice are mutually interde-
pendent. On the one hand, access to information enhances the quality of public
participation in administrative processes and improves the capacity of citizens to
effectively claim their administrative justice rights. On the other hand, adminis-
trative justice mechanisms and processes, such as judicial review, may be used to
enforce the right of access to information. In both respects, access to public infor-
mation in Malawi is limited by, among other things, the lack of an operational
comprehensive legislative framework and various social, economic and cultural
characteristics of contemporary Malawian society.
Since the adoption of the 1994 Constitution, the enactment of the Access to
Information Act in 2017 was the most significant step towards guaranteeing everyone
in Malawi access to information. However, to date, the Act is yet to become opera-
tional. The limitation of access to information created by the non-operationalisa-
tion of the Act is mitigated by a number of other pieces of legislation which provide
for access to information in certain specific contexts or for particular groups of
people. These include the HIV and AIDS (Prevention and Management) Act (2018)
which entitles every person ‘the right to access information in connection with
HIV and AIDS held by the State or any organ of the State, where the information is
necessary for the exercise of his rights;’ the Disability Act (2012) which guarantees
every person with a disability the ‘right to access information and communication
technologies at an affordable cost’88 and the Public Officers (Declaration of Assets,
Liabilities and Business Interests) Act (2013) and the Pensions Act (2011) which
obliges trustees of pension funds to provide members with fund information.89
On its part, the High Court has in the past enforced the right of access to infor-
mation based on the constitutional guarantee of the rights without reference to the
Access to Information Act. A case in point is that of Attorney General v Chakuamba90
in which the Supreme Court of Appeal, relying on the section of the Constitution
which guarantees the right, held that a candidate in the 1999 presidential elections
was entitled to have access to information, documents and other materials relating
87
88
Section 25.
89
Section 60.
90
[2000] MWSC 5 (22 October 2000).
to the 1999 general elections held by the country’s elections management body.91
This case was decided before the Access to Information Act was even enacted, and
demonstrates that the absence of an operational enabling statute cannot deter a
court from utilising administrative law tools to secure human rights. This view is
reinforced by the ruling in the case of S v Lilongwe Water Board and Others; Ex Parte:
Malawi Law Society in which the High Court ordered the Lilongwe Water Board and
the ministry of agriculture, irrigation and water development to publicly disclose
documents on a multi-million dollar project to supply water to the capital city.92
Despite specific statutory provisions and judicial pronouncements which
promote the right of access to information, however, the potential contribution of
the right to administrative justice, participatory democracy and human rights, is
significantly constrained by user-based factors which include low levels of formal
education resulting in the limited ability of many individuals to know and under-
stand available sources and possible content of public information held by the state
or any of its organs; low levels of public awareness of the right to information; low
levels of English language literacy; a culture of deference to authority;93 and inad-
equate financial resources with which to facilitate access to information. Access is
also hindered by a variety of interface-based factors, including limited public access
to information communication technology;94 and a centralised bureaucracy with
a historical culture of secrecy resulting from its entrenchment ‘in authoritarian
ways.’95 Some social systemic features of Malawian society also impede access to
information. Key among these are social, physical and political marginalisation
from the sites where information is stored and a culture of orality and informality
which militates against the generation, archiving and retrieval of records.
Enhancing administrative justice requires addressing the obstacles to access to
justice outlined above. Realistically, it might be prudent to prioritise measures that
do not require prohibitive amounts of resources and those that can yield imme-
diate results. This suggests that the following steps can be taken in the immediate
to medium term: the operationalisation of the Access to Information Act; transla-
tion of key public documents, such as records of local government meetings and
budgets into local languages; provision of community-based/owned information
communication technology facilities and their use for the dissemination of public
information; and decentralisation of information-holding points. These interven-
tions must be complemented by advocacy for interventions which address the user-
based and social\systemic obstacles.
91
[1999] MLR 17.
92
Supra note 69.
93
Deference to authority and officialdom is widespread in Malawi and has deep roots in social
norms (Booth, supra, note 6). Over 50% of respondents in the 2008 Afrobarometer survey
strongly agreed with the statement that ‘people are like children; the government should take
care of them like a parent.’ Afrobarometer, supra, note 5.
94
For instance, as at 2014, only 7% of the households in Malawi had access to internet. See NSO,
Survey on Access and Usage of ICT services in Malawi, 2014.
95
Evidence of bureaucratic reluctance to grant access to public information was found by the
Malawi Economic Justice Network (MEJN) in a study that the organization conducted in 2007.
(e) Separate administrative court?

Malawi has a four-tier judiciary, with the lowest level being composed of local
courts. The next level is subordinate courts followed by the High Court, while the
highest court is the Supreme Court of Appeal. Local courts are presided over by lay
persons or chiefs and their jurisdiction is limited to civil cases at customary law
and minor common-law and statutory offences. Subordinate courts consist of mag-
istrate courts, child justice courts and the industrial relations court.
Almost all judicial activity pertaining to administrative law revolves around the
High Court as it is the only court which the Constitution empowers to undertake
judicial review; to interpret the constitution, including the bill of rights, one of
whose provisions guarantees the right to administrative justice; and to hear appeals
in electoral disputes; among others. In addition, the High Court serves as an appel-
late court in cases originating from subordinate courts as well as exercising its own
‘unlimited original jurisdiction. With a complement of only 27 High Court judges,
it is apparent that judges in that court have heavy workloads. This negatively affects
the efficiency of the court and affords judges little time for the deliberation and
contemplation necessary for the development of an analytical judicial philosophy
on any legal subject, including administrative law. The establishment of a court
exclusively handling administrative law and justice matters would greatly help in
advancing administrative law and justice in Malawi.
(f) Training
Whilst no minimum educational qualification for appointment is prescribed for
lay magistrates, professional magistrates must have a minimum of a Bachelor of
Laws degree. Typically, the curriculum of study for that degree includes a signifi-
cant content of administrative law. Upon their appointment, therefore, all profes-
sional (resident) magistrates, judges of the High Court and justices of the Supreme
Court of Appeal have a sound knowledge of fundamental principles and rules of
administrative law. In addition, various ad hoc training programmes, which include
content on administrative law and justice, are available to judicial officers.
In contrast, the educational qualifications of lay magistrates are varied and
post-appointment training opportunities for them are significantly limited. Any
training programmes offered to these officers are relatively short-term and can only
cover basic elements of the law. Training of magistrates is conducted at a national
training institute where trainees learn mostly in lectures delivered by judges and
other legal professionals.
5. CONCLUSION
Administrative law is a branch of public law that plays a very important role in
ensuring that public duty-bearers are held to account in the exercise of their powers
and functions. Administrative law is therefore an essential feature of a functioning
democracy.
Administrative law principles in Malawi are deeply rooted in the English

common law. However, such principles have been fundamentally supplemented,
and in some ways reshaped by the provisions of section 43 of the Constitution. In
addition, the broader values and underlying principles of the Constitution advo-
cate for participatory democracy which includes participation in administrative
rule-making and rule-application as well as decision-making. This participatory
scheme sharply contrasts with the scheme under the 1966 Constitution which was
deeply centralised with the space and scope for judicial review severely constrained.
This chapter demonstrates how strides in these areas have been made since the
adoption of the 1994 constitution. More recently, Malawi has witnessed a number
of developments in the area of administrative law. Among the most notable ones
are the recent clarification by the Supreme Court of Appeal in State v Ombudsman
ex parte Principal Secretary for Finance and 2 others that decisions of the Ombudsman
are legally binding; and the decision of the High Court in State v DPP, Ex-Parte
Trapence and Mtambo that courts must exercise a wide measure of deference towards
the executive when it comes to the exercise of executive action as contrasted with
administrative action. In addition, recent jurisprudence by the courts has high-
lighted the difference between public customary law and private customary law,
establishing that public customary law is directly amenable to judicial review pro-
cesses whilst private customary law issues are resolved using private customary law
norms.
Finally, this chapter shows that Parliament, through its various committees,
provides a very potent lever of accountability as against the executive and that
these are a good alternative to judicial remedies against public maladministration.
Chapter 5
An Overview of the Framework Governing

Administrative Justice in Kenya
CECIL ABUNGU*
ABSTRACT
This chapter describes Kenya’s administra- administrative justice in Kenya. In addi-
tive law framework in the context of the tion, the chapter evaluates the performance
changes introduced by the Constitution of of some of the institutions created to deliver
Kenya of 2010. The chapter discusses the justice and makes recommendations on
principles underpinning administrative law how administrative law can be leveraged to
and the institutions that have been estab- pursue good governance in Kenya.
lished to deliver and or facilitate access to
1. INTRODUCTION
Administrative law is a branch of public law which regulates the various organs of
government administration and prescribes in detail the manner of their activity,
being concerned with such topics as the collection of the revenue, the public safety
and morals, sanitation amongst many others.1 This branch of the law therefore,
regulates public bodies and officials so as to safeguard the interest of the public.2
It primarily deals with the organisation and power of administrative and quasi-ad-
ministrative bodies with emphasis on the manner of exercise of their assigned
powers.3 Thus, it provides an avenue for redress for victims of arbitrary exercise of
these powers.4
This body of law was has its origins in the English common law and the princi-
ples embodied correctly matched the needs of England.5 With the advent of coloni-
sation, these rules of administrative law were imposed upon colonial Africa- Kenya
being a part of it, through the general reception status, despite the wide differences
between the prevailing circumstances in England and colonial Africa.6 This pro-
duced an unsuitable administrative framework in pre-independence Kenya. The
situation worsened after independence. In the pre-independence period and for a

* Cecil Abungu is an LLM candidate at Harvard Law School. He gives special thanks to Professor
Migai Akech for the consistent guidance throughout and Mdathir Timamy for research assistance.
1
Bryan Garner (ed) Black’s Law Dictionary 2 ed (1999).
2
M. Akech. Administrative Law (2016) 12.
3
I. Kilonzo. Administrative law in Kenya (2011) 1.
4
Ibid.
5
R Seidman, ‘Administrative Law and legitimacy in Anglophonic Africa: a problem in the recep-
tion of foreign law’ (1970) 5(2) Journal of the Law and Society Association 167.
6
Ibid.
92
A n O verview of the F ramework Governin g A dministrative J ustice in K enya 93
long time thereafter, administrative law was a recognised source of law by virtue of
section 3 of the Judicature Act, which recognised the Common law as a source of
law.7 However, the mechanisms put in place to ensure a just outcome in the admin-
istrative decisions were inadequate.8
This was certainly the norm during this period which can be evidenced by the
following observations; as reported by Sessional Paper No. 3 of 2009 on National
Land Policy, a lot of land in Kenya was compulsorily acquired without following
the due process.9 In addition, the award of tenders was not based on a fair process
but rather they were awarded to those who were politically influential.10 Examples
of these corruption scandals include the Goldenberg and the Anglo-leasing scandal
which greatly affected the nation’s economy.11 Also, the public officials hardly
served the public interest and anyone who opposed government at the time would
face dire consequences including torture or even being jailed.12 These indeed, are
only a few of the many examples of ways in which the public bodies were flawed in
their administrative decisions. The 2010 Constitution of Kenya was drafted strate-
gically with the intention to address all these existing loopholes. However, before
analysing the legal framework which guarantees administrative justice in Kenya,
there is a need to briefly identify the key principles which underpin the adminis-
trative law framework in Kenya.
2. T
HE CARDINAL PRINCIPLES UNDERGIRDING ADMINISTRATIVE LAW
IN KENYA
In order for administrative law to effectively operate there is a need to promote
separation of powers, independence of the judiciary and the rule of law.13 This will
help in promoting fair conduct within the public bodies and hence administrative
justice.14 Separation of powers was first proposed by Montesquieu, whose concern
was to avoid the over concentration of powers in a single organ of government.15
This arrangement would guarantee that no organ had unchecked powers as
each organ would have the mandate to check on others.16 Therefore, under the
separation of powers decisions made by the administrative bodies who formed part
of the executive could be questioned by the legislature (as part of its oversight role)
7
Judicature Act (1967), s 3.
8
This is because during this period, the judiciary was not independent and was even considered
to be a part of the executive. For example, during the Moi regime the President enjoyed absolute
powers which adversely affected the justice system.
9
Sessional paper No.3 of 2009 on National Land Policy, 46.
10
M Segita, ‘The Future of Administrative Law in Kenya’ (2017) 4(2) Kabarak Journal of Research and
Innovation 85.
11
Ibid.
12
Ibid.
13
Akech op cit 2 at 12.
14
Ibid.
15
Ibid at 13.
16
Ibid.
and by the judiciary using its powers of judicial review.17 While Montesquieu’s idea
of absolute separation of powers may be criticised as impractical (as co-operation
between the various organs of government is inevitable), his idea on checks and
balances has been useful, and has been implemented in the various constitutions
in the world including that of Kenya.18
Closely related is the principle of an independent judiciary. This principle pos-
tulates that there should be a distinct organ of government whose function is to
administer justice and that this organ must operate impartially and must be inde-
pendent of direction, control and undue influence.19 It must as much as possible
be disinterested in the proceedings and must administer justice on the basis of facts
and law without fear or without external influence.20 In administrative law, judi-
cial independence is crucial because one of the main pathways of accessing admin-
istrative justice is by taking administrative conduct on judicial review. Such review
must be done by an independent and impartial court that is capable of enforcing
the law without fear or favour. The 2010 Constitution of Kenya guarantees judicial
independence in article 160 (1), which states that the judiciary is subject to the
Constitution only and shall not be directed by any person or authority.21
Finally, for the effective operation of administrative law the rule of law must be
guaranteed. This principle demands that the exercise of governmental powers must
be based on the established laws and principles and not on the personal whims of
those in power. In addition, as explained by Dicey this principle suggests that all
persons are equal before the law and no one is above ii. The rule of law is essential as
it compels the administrative bodies to make decisions according to the law rather
than arbitrarily. The rule of law is guaranteed in the 2010 Constitution as one of
the constitutional values.22 The Constitution further obliges the President,23 the
Attorney General,24 and political parties to respect the rule of law.25
3. CONSTITUTIONALISATION OF ADMINISTRATIVE LAW

Under the previous constitutional dispensation, the application of administrative
principles was based on the English common law. However, with the promulgation
of the 2010 Constitution, administrative law was constitutionalised by virtue of
article 47, which guarantees the right to fair administrative action that is lawful,
reasonable, expeditious and procedurally fair.26 The purpose of enshrining this
17
Ibid at 14.
18
Examples of checks and balances in the constitution- national assembly questioning Cabinet
Secretaries, Supreme Court’s powers with regards to the state of emergency declared by the
President, and impeachment.
19
20
Ibid.
21
Constitution of Kenya (2010), article 160.
22
Ibid, article 10.
23
Ibid, article 131 (2).
24
Ibid, article 156 (4) and (6).
25
Ibid, article 91.
26
Ibid, article 47.
article in the Constitution, was to tackle the problems in the public service.27 These
problems include corruption — a major problem — but also incompetence, unfair-
ness and general lack of a caring approach.28 This provision would thus tackle
the problem at its root and thus reduce pressure on the courts or other institu-
tions to deal with complaints. It would also lead to better decision–making by the
administration.29
The recognition of administrative justice as a constitutional right has revolu-
tionised the application of administrative law in Kenya. Judicial review is no longer
grounded in the common law but rather it is now based on the Constitution. 30
Instead of being an inherent power of the courts, judicial review is now a constitu-
tional function of the courts. This improvement prevents ousting and interference
with access to administrative justice.31 In addition, it has further equipped the cit-
izens with an avenue to question administrative decisions and seek redress in the
courts without fear as it is a guaranteed right.32
In addition to the above, the constitutionalisation of the right to adminis-
trative justice has occasioned judicial review on grounds that are wider than
those provided for at common law.33 Subsequently, in terms of Article 23 of the
Constitution, the remedies that the courts can grant in a judicial review matter
have also been widened far beyond the common-law remedies of mandamus, certi-
orari and prohibition to include conservatory orders, declarations, injunctions, and
compensation.34 The constitutionalisation of the right to administrative justice
is also supposed to result in the establishment of a comprehensive legislative and
institutional framework to provide for administrative justice.35
The courts have not shied away from recognising the constitutionalisation of
administrative law and its implications for judicial review. In the case of Republic
v Speaker of the Senate and another Ex parte Afrison Export Import Limited and another,
Justice Mativo firmly pronounced that the court has the power to consider the
work of the Senate and any other organ of government including the executive. He
further stated that judicial review should be thought of as a constitutional super-
vision of public authorities.36 He recognised that the time had come for the courts
27
Constitution of Kenya Review Commission, Final report of the Constitution of Kenya Review
Commission, (2005) 119.
28
Ibid.
29
Ibid at 119.
30
J Gichuhi. Constitutionalisation of Administrative Justice in Kenya (2011) 2 available at https://
www.academia.edu/7052956/John_Gichuhi_Constitutionalisation_of_Administrative_Justice_
in_Kenya_2014, accessed on 18 October 2019.
31
Ibid.
32
Unlike common law review, constitutional review extends to procedural propriety and substan-
tive reasonableness of the administrative action.
33
Gichuhi op cit 31 at 3.
34
35
Gichuhi op cit 31 at 4.
36
Republic v Speaker of the Senate and another Ex parte Afrison Export Import Limited and another (2018)
eKLR.
to fully explore and develop the concept of judicial review in Kenya as a constitu-
tional supervision of the exercise of power.37
While the Constitution has only expressly provided for fair administrative action
as per Article 47(1) and (2), there are other provisions in the Constitution which
refer to the same concept. This is seen in other articles such as: Article 47(3), which
gives parliament authority to legislate on fair administrative actions;38 Article 59,
which establishes the Kenya National Human Rights and Equality Commission
and gives Parliament room to restructure the Commission;39 Article 79, which
gives parliament power to establish an Ethics and Anti-Corruption Commission;40
and the establishment of the Independent Police Oversight Authority (IPOA) as
per Article 244 of the Constitution; the office of the Controller of Budget, Auditor
General, Director of Public Prosecution as per Article 228,41 229 and 157 respec-
tively. Finally, Parliament has oversight authority on the administrative bodies
based on their powers. All these institutions work hand in hand to ensure admin-
istrative justice in Kenya. The next section analyses the avenues put in place to
guarantee access to administrative justice.
4. ADMINISTRATIVE JUSTICE: AVENUES FOR REDRESS

(a) Judicial review
This is an avenue whereby a party affected by an administrative decision can take
the matter to court. As highlighted in the preceding section, this is now guaran-
teed in the Constitution. In addition, Parliament enacted the Fair Administrative
Actions Act (FAA Act), which further safeguards this right.42 As per the Constitution
and the FAA Act, any administrative decision will be amenable to judicial review
if the decision is unlawful, unreasonable, unjustified, procedurally unfair, not pro-
portional, or the public was not involved in the making of a decision in which the
law required its involvement.43
Lawfulness addresses the fact that the administrative body making the decision
should have the legal mandate to do so.44 Moreover, even where they have the
power they ought to comply with the procedures required when exercising the
power.45 Courts will intervene to guarantee administrative justice if this principle
is violated. Judicial review on the ground of reasonableness may be invoked where
the decision maker failed to consider relevant matters or where the decision maker
considered irrelevant matters or the decision itself defies logic.46 In addition, article
37
Ibid.
38
Constitution of Kenya (2010), article 47(3).
39
Ibid, article 59.
40
Ibid, article 79.
41
Ibid, articles 228, 229 and 157.
42
Fair Administrative Actions Act 4 of 2015 (FAA Act).
43
Ibid, s 5.
44
45
Ibid.
46
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948), Court of Appeal.
47(2) and section 5 of the FAA Act provide that a person whose right or funda-
mental freedom has been or is likely to be affected by administrative action has the
right to be given written reasons for the action. The public should also participate
in the making of administrative decisions that affect them.47 The FAA Act estab-
lishes procedures for public participation.48
Further, in the interest of administrative justice the Constitution also guaran-
tees procedural fairness.49 This principle is closely associated with the principle of
natural justice which embodies two main ideas, namely that persons who would
be affected by an administrative decision should have an opportunity to be heard
before the decision is taken, and the decision-maker should be free from any
biases.50 These two principles protect the people against arbitrary administrative
conduct, guarantee the right to be heard, the right to be given a prior notice of the
allegations, the disclosure of all the information the body has against the party
involved, the party’s right to adjourn the proceedings whenever they need more
time to prepare, the party’s right to examine the tribunals’ witnesses, the body
ought to give the affected party with written reasons for their decisions, the right
to have a legal representation during the proceedings and finally the right to appeal
the administrative decisions.51 All these are rights guaranteed by the FAA Act.52
To guarantee administrative justice, the Constitution has also widened the
scope of legal standing as per Article 22. It allows not only the affected person to
seek redress in court but also a person acting in the public interest, or for a class
of people or even for an association.53 This has certainly enabled more people to
file judicial review cases which have strengthened justice in this field. In addi-
tion, judicial review is not only applicable to public bodies but extends to private
bodies exercising public functions, private bodies whose actions affect peoples’
livelihoods or rights protected in the Bill of Rights as was the case in Rose Mambo v
Limuru Country Club.54 Finally as noted in the preceding section, the Constitution
has now widened the scope of remedies that can be awarded in a judicial review
matter.55 These rights have also been protected in the FAA Act. All these develop-
ments have gone a long way in enhancing administrative justice in Kenya.
(b) Redress through independent commissions and offices

(i) Commission of Administrative Justice
Article 59 of the Constitution establishes the Kenya National Human Rights
and Equality Commission. Further, it empowers Parliament to restructure this
47
FAA Act op cit 43, s 5.
48
Ibid.
49
50
Ibid.
51
Ibid.
52
FAA Act op cit 43, s 4.
53
54
Rose Mambo and 2 others v Limuru Country Club and 17 others (2014) eKLR.
55
Commission by enacting legislation that distributes its functions to various

commissions. Since the promulgation of the Constitution in 2010, Parliament
has accordingly established three commissions namely, the Kenya National
Human Rights Commission, the Gender and Equality Commission and finally
the Commission of Administrative Justice.56 The Kenya National Human Rights
Commission focusses on ensuring that human rights in Kenya are not violated as
per the treaties and conventions to which Kenya is a party.57 The National Gender
and Equality Commission seeks to meet the goals regarding the gender equality
implementation.58 Lastly, the Commission of Administrative Justice (CAJ) works to
ensure administrative justice.59
Of interest to this chapter is the CAJ which is also referred to as the Ombudsman
Office. Ombudsman is a Scandinavian word that means an officer or commissioner
with the duty to investigate and report to Parliament on citizens’ complaints
against administrative action.60 He/she is not a court of appeal and cannot alter or
reverse government action.61 His/her powers reside in his capacity to focus public
and parliamentary attention upon the grievances of citizens.62
Despite the fact that the Ombudsman was introduced in Kenya in 2007, the
question of creating this office had been variously discussed earlier.63 It was recom-
mended by the Commission of Inquiry (Public Service Structure and Remuneration
Commission 1970–71.64 In addition it was also proposed in a sessional paper in
1974.65 Moreover, the establishment of this office was debated in Parliament in
1985 and 1995.66 Despite all these efforts, government opposed its creation on
account of a misunderstanding about the work of an ombudsman and it argued
that creating the office would lead to duplication within administrative rounds.67
The net effect was that the administrative bodies were flawed with malpractices
and injustices.
As stated earlier, this office was first established in 2007 through Gazette Notice
number 5826 of 29th June 2007.68 At this time, this office was known as a standing
committee on public complaints.69 It was established under Section 23 of the
56
Akech op cit 2.
57
58
National Gender and Equality Commission Act 15 of 2011 (NGEC Act).
59
Commission on Administrative Justice Act 23 of 2011 (CAJ Act).
60
Kilonzo op cit 3 at 6.
61
Akech op cit 2.
62
Ibid.
63
64
Report of the Commission of Inquiry, Public service structure and Remuneration Commission, May
1971, 23.
65
Sessional Paper No. 5 of 1974, 36.
66
Kilonzo op cit 3.
67
The AG opposed a motion in 1995 to create the office saying that the proposed office had too
much power beyond what is envisaged in other countries.
68
Akech op cit 2.
69
Ibid.
repealed Constitution that gave the President the full executive authority.70 The
establishment of the office of the ombudsman in 2007 followed long agitation
since the committee members were to report to the President.71 This was a big com-
promise in the working of the office and the resultant effect was that the office was
unsuccessful in its operation.
Following the implementation of the 2010 Constitution, the CAJ was established
through the Commission on Administrative Justice Act of 2011. The Commission
is established as a successor to the public complaints standing committee. The Act
gives the Commission powers to: conduct investigations on its own initiative or
upon receiving a complaint, facilitate dispute resolution through reconciliation or
mediation, and perform any other function assigned by legislation.72 The function
of the Commission can be summarised as undertaking the investigation of any
conduct in state affairs both at the national government level and the county gov-
ernment level.
‌The Commission investigates complaints of malpractices and maladministra-
tion, within public administration, and thereafter they are to promote alterna-
tive dispute resolution of the complaints and recommend compensation or other
appropriate remedies.73 The Commission should then give proposals on how to
improve public administration.74 Finally they ought to report bi-annually to the
National Assembly on complaints investigated and action taken thereon.75
In spite of these wide powers assigned to the Commission, their powers are
also limited in the sense that the Commission cannot interfere in proceedings or
a decision of the Cabinet or a committee of the Cabinet, a matter pending before
any court or judicial tribunal, the grant of any honours by the President, anything
in respect of which there is a right of appeal or any other legal remedy unless
the appeal or legal remedy is not available to the complainant and lastly, any
matter pending under investigation by anybody or Commission established by the
Constitution or any other written law.76
Since its establishment, the Commission has managed to address a number of
the administrative malpractices.77 It has, for example, provided redress in cases
which involved the failure by the Kenyan Prisons Service to award promotions
according to the established guidelines, and the failure by the National Land
Commission to follow due process when acquiring land.78 In addition, they have
given advisory opinions to the National Treasury pointing out that it issued the
circular effecting budget cuts without Parliamentary approval. Accordingly, the
70
Constitution of Kenya (1963), s 23.
71
72
CAJ Act op cit 60, s 8.
73
Ibid.
74
Ibid.
75
Ibid.
76
Ibid at s 30.
77
Commission on Administrative Justice Annual Report, 2016/ 2017, 6.
78
Ibid at 8.
Commission advised the National Treasury to withdraw the offending part of

the Circular, disburse the total allocations, and seek parliamentary approval in
instances where adjustments were necessary.79 Another important milestone by
the Commission is that it spearheaded the implementation of the right of access to
information.80 The Access to Information Act 81 gives the Commission the mandate
to oversee its implementation.
However, the Commission has also faced a number of challenges such as in plan-
ning and accessing communication and advertising funds held by the Government
Advertising Agency.82 This negatively affects the ability of the Commission to
increase public awareness of its functions. Another challenge is the lack of regula-
tions necessary for the full operationalisation of the Access to Information Act.83
Whereas the law gives oversight and enforcement functions to the Commission,
it places the responsibility of spearheading the development of regulations to the
Ministry of Information, Communication and Technology.84 However, the Ministry
is yet to kick-start the development of the regulations. As a result of the delay by
the Ministry, the Commission is unable to fully implement the Act. Another major
problem is with regards to the low budget ceiling.85 The budgetary ceiling is not
commensurate with the Commission’s wide mandate which was further expanded
following the enactment of the Access to Information Act in September 2016.86
This has overstretched the Commission’s human resource capacity and infrastruc-
ture, and inhibited decentralisation of ombudsman services.87
(ii) The Ethics and Anti-Corruption Commission

This is a Commission established pursuant to article 79 of the Constitution of
Kenya—which gives Parliament the mandate to create it. Parliament enacted the
Ethics and Anti-Corruption Commission Act, which created the Commission
under section 3. The creation of this body was necessary following the many com-
plaints submitted to the Constitution of Kenya Review Commission during the
drafting process.88 The complaints were in relation to the rampant corruption in
government and its agencies, and the people wanted a mechanism by which public
officers could be held accountable.89 This formed the rationale for the establish-
ment of this Commission.
79
Ibid at 40.
80
Ibid at 33.
81
No. 31 of 2016, ss 20–24.
82
Commission on Administrative Justice Annual Report op cit 78 at 57.
83
Ibid at 58.
84
Ibid.
85
Ibid.
86
Ibid.
87
Ibid.
88
Constitution of Kenya Review Commission, Final report of the Constitution of Kenya review
Commission, (2005) 64 (CKRC Final Report).
89
Ibid.
In guaranteeing administrative justice, the Leadership and Integrity Act gives

the Commission the mandate to investigate any complaints of a public officer who
is in breach of the Code of Conduct (which they are to sign on appointment)90 and
to summon any individual (whether a suspect or not) to produce specified docu-
ments in their possession.91 This Commission has enhanced administrative justice
by providing an avenue for corruption complaints that would otherwise not be in
the jurisdiction of the Ombudsman.
‌The functions of this commission may be summarised as: to investigate corrup-
tion, economic crimes and violation of codes of ethics particularly those named in
the Anti-Corruption and Economic Crimes Act and the Leadership and Integrity
Act;92 to develop and oversee enforcement of the Codes of Conduct and Ethics;
to file recovery proceedings including forfeiture of unexplained assets;93 and to
recover public property acquired through corruption.94 Finally, the Commission
conducts mediation, conciliation and negotiation amongst the affected parties if
the circumstances allow.
However, this Commission lacks prosecutorial powers.95 Instead, once it has
conducted investigations and findings that there is an abuse of the office, it is
required to request the Director of Public Prosecution (DPP) to prosecute.96 The
office of the DPP is established by the Constitution, which gives it mandate to
institute criminal proceedings against any person before any court.97 There have
been a number of corruption scandals which have been investigated and pro-
ceedings instituted by the DPP among them those focusing on the actions of the
Geothermal Development Company where the directors of the state owned para-
statal were prosecuted, the National Youth Service (NYS and the National Hospital
Insurance Fund (NHIF). Nonetheless, involving two bodies to resolve the issue has
been problematic in the recent years since most prosecution proceedings instituted
by the DPP end up being withdrawn.98 Many have attributed this to the fact that
the DPP, which is supposed to be an independent office, still falls under the exec-
utive arm which makes the office prone to interference by members of the exec-
utive.99 On the other hand, the Ethics and Anti-Corruption Commission enjoys
absolute independence making it better placed to conduct the prosecutions.
90
Leadership and Integrity Act 19 of 2012, s 42.
91
Ibid, s 28.
92
Ibid, ss 39–45.
93
Anti-Corruption and Economic Crimes Act 3 of 2003, ss 55–61.
94
Ethics and Anti-Corruption Commission Act 22 of 2011, s 13.
95
Ibid, s 11(d).
96
Ibid.
97
98
P. Vidija, ‘There’s no evidence to prosecute corruption cases, DPP tells senate’, Star, 13 June 2018
available at https://www.the-star.co.ke/news/2018-06-13-theres-no-evidence-to-prosecute-cor-
ruption-cases-dpp-tells-senate, accessed on 28 March, 2019.
99
A Mungai ‘Give us Powers to Prosecute, EACC Says’, Standard, 8 December 2017 available at
https://www.standardmedia.co.ke/article/2001262454/give-us-powers-to-prosecute-eacc-says,
accessed on 28 March 2019.
(iii) Independent Police Oversight Authority (IPOA)

This is an independent authority whose primary mandate is to provide for civilian
oversight over the police in order to prevent impunity and enhance professionalism
by the police. Its constitutional mandate is based on Article 244 which requires the
police to respect human rights, adhere to high levels of discipline and profession-
alism and accountability in the execution of their duties.100 To further elaborate on
its duty, Parliament established the Independent Police Oversight Authority Act.101
The functions of the IPOA now include: receiving and investigating complaints of
members of the service, monitoring and investigating policing operations affecting
members of the public, and reviewing any patterns of police misconduct and taking
all reasonable steps to facilitate access to the Authority’s services.102
This Authority has managed to facilitate administrative justice by giving civil-
ians an avenue to report the malpractices of the police officers. The Authority has
been successful in conducting many of its investigations against the police making
the police body more accountable. As of 2017, the IPOA had completed 674 inves-
tigations and had 292 active investigations with a further 53 cases in court at that
time.103 These statistics prove how efficient the IPOA has been since its inception. It
is on the basis of this success, that Members of Parliament in the Justice and Legal
Affairs Committee want to expand the Authority’s powers beyond the police to
include the Kenya Wildlife Service (KWS), Kenya Forestry Service (KFS) and Kenya
Prison Service.104
(iv) Office of the Auditor General and the Controller of Budget

These are independent offices created by virtue of Articles 228 and 229 of the
Constitution. These offices are crucial in enhancing administrative justice as they
ensure that public funds are not misappropriated. The Office of the Controller of
Budget has the function of authorising withdrawals and the power to deny these
withdrawals.105 This office guarantees administrative justice as each national entity
(as per the Public Finance Management Act) is required to submit an annual cash
plan and forecast to the Controller of Budget. Further, this office has the mandate
to conduct investigations on its own motion when the Controller of budget sus-
pects that there are malpractices in the public administration.
The Auditor General has the mandate to audit the accounts of both the national
and the county governments.106 His or her powers are further established in the
Public Audit Act 2015, which gives the Auditor General the power to require any
100
101
Independent Police Oversight Authority Act 35 of 2011 (IPOA Act).
102
Ibid, s 6.
103
Independent Police Oversight Authority, ‘The Policing Lens’ (2017) 1.
104
Independent Police Oversight Authority, ‘Advocacy to Expand IPOA’S Oversight Mandate’
(2018) 1.
105
106
Ibid, article 229.
public body to produce any document and to provide any official information.107
Further, the Auditor General has unhindered access to internal audit reports of
any state organ or public entity.108 To protect these powers, the Act prohibits the
Cabinet Secretary from making regulations that are inconsistent with it.109
From the above provisions of the Constitution and the relevant legislation, it is
clear that measures have been established as checks and balances to the executive
in a bid to achieve administrative justice.
(v) Redress through commissions of inquiry

These are Commissions formed by the President with the sole purpose of inves-
tigating a specific matter. The President appoints commissioners and authorises
them to inquire into the conduct of any public officer or the conduct or manage-
ment of any public body, or into any matter into which an inquiry would, in the
opinion of the President, be in the public interest.110 The President specifies the
matter to be inquired into, and directs where and when the inquiry is to be made
and the report thereon produced.111 Their mandate ceases as soon as they report
back on the matter to the President.
There are several commissions of inquiry that have been put in place over time
which include: the Kenya Maize Commission, the Commission on the Law of
Marriage and Divorce, the Commission of Inquiry on the Law of Insurance (The
Hancock Commission), Judicial Commission Appointed to Inquire into allegations
involving Charles Mugane Njonjo, the Ouko Commission of Inquiry (1990–91),the
Akiwumi Commission into Ethnic Violence, Judicial Commission of Inquiry into
the Goldenberg Affair, the Commission on Higher Education (The Davy Koech
Commission), Commission of Inquiry into the Land Law systems of Kenya, the
Commission of Inquiry on Post-Election Violence (Waki Commission). In spite of
the many Commissions established, only few have been successful in remedying
the perceived problems. A good example of a successful outcome is the Commission
on the Law of Succession 1968 which resulted in the enactment of the Law of
Succession Act 1981.
However, the majority of the inquiry commissions have been a waste of
resources as they have had little or no impact. For example, the Ouko Commission
was disbanded in spite of not having solved the issue it was created to inquire
into.112 The report of the Hancock Commission on the law of insurance was also
not published.113 Worst of all, perhaps, was the Commission of Inquiry into the
107
Public Audit Act 34 of 2015, s 21 (1).
108
Ibid, s 33 (2).
109
Ibid, s 68.
110
Commissions of Inquiry Act (1963), s 3.
111
Ibid.
112
P Bowry, ‘An inquiry into the Commissions of Inquiry’, Standard, 13 January 2010 available at
https://www.standardmedia.co.ke/article/2000000823/an-inquiry-into-commissions-of-inquiry,
accessed on 29 March 2019.
113
Ibid.
Goldenberg Affair, whose report was never implemented. These are a few exam-
ples proving the inefficiencies of the commissions of inquiry which have adversely
affected administrative justice, despite having been created for the purpose of
enhancing administrative justice.
To address this issue, there is a need to reform the Commission of Inquiry
Act. For example, in jurisdictions like England and Australia, there is an opportu-
nity for direct parliamentary involvement in the appointment of commissions of
inquiry.114 However, in Kenya, the appointment of commissions of inquiry is the
sole preserve of the President.115 This has been criticised and suggestions have been
made that there should be direct parliamentary participation in the appointment
of commissions of inquiry.
Another possible issue to be addressed is the duration of the commissions of
inquiry. The Act gives the President the mandate to determine when a commission
should submit its report.116 This results in many of the commissions of inquiry
being a waste as the findings are hardly reported and if they are, the reporting
occurs when the issues are no longer relevant. For example, the Bosire Commission
took about three years to be completed, a fact which was heavily criticised.117 If
some of the reforms proposed are implemented, the commissions of inquiry will be
better placed to perform their function and thus strengthen administrative justice.
(vi) Redress through parliamentary oversight

Parliamentary oversight is a constitutionally mandated function of the legislature
to scrutinise and oversee executive action. It entails formal and informal strategic
and structured scrutiny exercised by the legislature in respect of the implementa-
tion of laws, the implementation of the budget and the strict observance of statutes
and the Constitution.118 This mandate is meant to enhance administrative justice
as it may ensure that the rule of law is respected, policies formulated by govern-
ment are effectively implemented, and it may promote government transparency
and accountability.119
To oversee the administrative bodies in a bid to enhance justice, the legislature
uses the following mechanisms. Parliament has the substantive motion powers
which gives it the powers to initiate the removal of the Cabinet Secretaries on
its own motion or following a petition from the public.120 This is important as it
gives any member of the public who has suffered administrative injustices from a
Cabinet Secretary or any other senior official a chance to obtain justice. Closely
114
African Centre for open Governance (AfriCOG), ‘A Study of Commissions of Inquiry in Kenya’,
(2007) 4.
115
Commissions of Inquiry Act, op cit, s 3.
116
Ibid.
117
AfriCOG op cit 115 at 10.
118
H Yamamoto, ‘Tools for Parliamentary Oversight: A comparative Study of 88 National
Parliaments, Inter-Parliamentary Union, Geneva (2007) 9.
119
Ibid.
120
related to these powers, is the National Assembly’s power to hold the relevant
Cabinet Secretary accountable.121 These powers enable the National Assembly to
hold the Cabinet Secretary accountable for the performance of the various para-
statals under his or her ministry. This avenue helps in ensuring that the adminis-
trative system is just.
Another mechanism Parliament uses to enhance administrative justice is
through the parliamentary committees. The primary aim of these committees is to
systematically sustain scrutiny of the executive and other arms of the government.
These committees are established by Parliament’s standing orders. For instance,
section 205 establishes the Public Accounts Committee (PAC). The function of this
Committee is to examine accounts showing the appropriations of public finance
by the ministries, departments and agencies of government.122 This Committee
works closely with the Auditor General. The Public Investment Committee is also
established by section 206 of the Standing Orders.123 The main functions of the
Committee are to examine reports and accounts of public investment and examine
whether public investments are being managed in accordance with sound financial
principles and prudent commercial practices.124 This Committee mostly provides
oversight over semi-autonomous government agencies. These committees ensure
administrative justice by ensuring that public finances are appropriately used and
the accountability of public officers responsible for the inappropriate use of public
funds. Other committees include the Implementation Committee which ensures
that all the strategies are implemented by the executive.
Despite the legislature having sufficient powers that would otherwise guarantee
administrative justice, Parliament has in a number of cases failed to fully max-
imise its mandate to guarantee this. For example, in the Geothermal Development
Company scandal, despite the Committee embarking on the investigations, two
years down the line it had not reported on its findings.125 This delays any form of
action that could have been taken by the legislature and thus undermines admin-
istrative justice.126 In addition, Parliament also lacks any form of sanctions against
the administrators found guilty of administration malpractices.127 This further
weakens administrative justice.
To address these issues the standing orders ought to be reviewed by giving
Parliament the power to sanction guilty administrators. In addition, the inves-
tigative powers of the relevant committees ought to be regulated by giving each
committee a deadline by which they should report back to the house.
121
Ibid, article 153.
122
National Assembly, National Assembly Standing Orders, Tenth Parliament, January 9 2013
(National Assembly Standing Orders), 9 January 2013, s 105.
123
Ibid, s 206.
124
Ibid.
125
J. Ngirachu, ‘EACC Probes Sh10bn Geothermal Developmnt Company Deals’ Business Daily, 23
February 2015, available at https://www.businessdailyafrica.com/news/EACC-probes-Sh10bn-
GDC-deals/539546-2632766-37j6knz/index.html, accessed on 29 March 2018.
126
Institute of social Accountability, ‘Oversight Role of Parliament’, (2012) 6.
127
Ibid.
5. CONCLUSION
From the above analysis, it is clear that a number of drastic measures have been put
in place to enhance administrative justice in Kenya. However, the administrative
justice system still faces a number of challenges such as the commissions of inquiry
failing to submit the required reports, or the failure to take action after they submit
their reports. In addition, while parliamentary committees have adequate powers,
these powers ought to be enhanced by giving the Parliament the power to sanction
and set deadlines for action. Furthermore, the DPP has not been fully equipped to
prosecute corruption scandals investigated by the EACC, owing to the interference
by the executive. Thus, there is a need to give the EACC prosecution powers.
The establishment of the Ombudsman has gone a long way in improving the
administrative justice system. However, the office’s performance is constrained
by underfunding. In order to address this challenge, there is a need to give this
office financial independence as is the case with the judiciary. Finally, the judiciary
ought to be more robust, especially when reviewing administrative conduct which
adversely affects people’s access to livelihoods.
Chapter 6
Resurgent Judicial Power and

Administrative Law in Uganda
RONALD K AKUNGULU-MAYAMBAL A *
ABSTRACT
Administrative law is a branch of law gov- this dichotomy has been blurred. Judges
erning the exercise of power by adminis- in Uganda have expanded the traditional
trative agencies of government. This chap- boundaries of judicial review that strictly
ter examines the development of adminis- distinguished between the public-private
trative law by the courts in Uganda, from spheres in seeking redress from decisions of
colonial times to independence and into private actors, and those of public bodies.
the post-independence era. Whereas there Another interesting development has been
was little development of this branch of the extension of administrative law into mat-
law during the colonial era, since independ- ters of a criminal nature. The chapter notes
ence the Ugandan courts have altered the that these developments have been made to
law in a number of interesting ways. While further the constitutional goal of protecting
the common law appears to emphasise the people against abuse of public power.
distinction between public and private law,
1. INTRODUCTION
Administrative law is a branch of law governing the activities of administrative
agencies of government. Administrative law largely deals with regulating govern-
ment action and is based on the core principles of constitutional law, such as sep-
aration of powers, the rule of law, the right to a fair hearing, protection of public
servants and the principle of non-discrimination among others.
In Uganda, contemporary administrative law has its roots in the reception of
English common law through the 1902 Order-in-Council, which formalised colo-
nial rule in the Protectorate.1 The Order-in-Council dealt with several matters
of constitutional significance ranging from the provincial and administrative

* The author is Associate Professor at the School of Law, Makerere University. He is most grateful to
Dr Busingye Kabumba for comments received on an earlier draft of this paper. He is also deeply
indebted to Ms. Lornah Afoyomungu Olum for excellent research assistance rendered, and to the
African Development Law Institute (ADLI) for institutional support in this regard.
1
Article 15(2) of the Order in Council. The reception clause essentially defined the law to be
applied in the protectorate and in particular in the judicial determination of disputed matters by
court. The applicable law was to include doctrines of equity and statutes of general application
of force. The Order-in-Council was in exercise of power granted to His Majesty’s government
under the Foreign Jurisdiction Act of 1890 to legislate with regards to foreign territories of the
United Kingdom.
107
divisions, structures of government, administration of justice and the maintenance

of law and order.
2. ADMINISTRATIVE LAW IN THE EARLY YEARS (1902–1955)

In the colonial period, governance at both local and central levels was concerned
with entrenching and consolidating political power.2 While governance was
decentralised, as part of a larger project of indirect rule, in the main this served to
advance the interests of the colonial project, rather than the needs and welfare of
the people of the Protectorate.3
The existence of well organised structures in Buganda and a hereditary ruler
that had authority made it easy to introduce indirect rule in Buganda, and then use
Buganda as an agent to reach the other parts of the country, or the regions of the
north, west and east without such centralised leadership.4 For instance, the British
monarchised Busoga and the Kyabazingaship along the Buganda model.5 Buganda
chiefs were also sent to other parts of the Protectorate, serving until the late 20s
and 30s, when they were replaced with other local people from those regions.6
In 1920, another Order-in-Council (OIC) was promulgated, whose major sig-
nificance was the introduction of more distinct organs of government. Apart from
changing the name of the head of the protectorate from commissioner to governor,
the Order-in-Council established the Executive Council, consisting of officers such
as: i) Director of Finance; ii) Director of Medical Services; iii) Director of Transport;
iv) Attorney General; and v) Director of Agriculture. The OIC also established the
Legislative Council, as the formal legislative organ of government, exercising legis-
lative powers hitherto held by the Commissioner.
The African Native Authority Ordinance was enacted in 1919.7 This Ordinance
provided for the powers and duties of African chiefs in the colonial indirect system
of administration. Under this law the Commissioner could constitute or recognise
native councils and determine their powers. Later, the Legislative Council could,
with the approval of the Governor, change native law, and by resolution set penal-
ties for breaches of the law.8 Chiefs were appointed at the village, sub-county and
county levels and were accountable to the District Commissioner, who was the
executive head of the district and principal representative of the central govern-
ment.9 The chiefs had powers to collect taxes, preside over native courts, and main-
tain law and order.10 The structure was composed of District Councils, of senior
2
HF Morris and JS Read Uganda: The Development of its Laws and Constitution (1966) 34.
3
H Ojambo ‘Decentralisation in Africa: A Critical Review of Uganda’s Experience’ (2012) 15(2)
Potchefstroom Electronic Law Journal 72.
4
Morris and Read op cit note 2 at 34.
5
A Nsibambi ‘The restoration of traditional rulers’ in HB Hansen and M Twaddle (Eds) From Chaos
to Order: The Politics Of Constitution Making in Uganda (1994) 42.
6
GW Kanyeihamba Constitutional Law and Government in Uganda (1975) 302.
7
The African Native Authority Ordinance Entebbe, Government Printer 1919.
8
Nsibambi op cit note 5 at 35.
9
10
Ibid at 36.
R esur g ent J udicial P ower and A dministrative L aw in U g anda 109
chiefs. These had authority to change native law and custom and at the same time
exercise judicial functions.11 In addition to this, their role was ‘purely deliberative
and advisory.’12
In the initial stages, the chiefs ruled without a clear set of laws but mainly relied
on their local customs and traditions. The status and application of customs and
what later came to be known as ‘customary law’ was to be subject(ed) to the repug-
nance doctrine under Section 20 of the 1902 OIC. Similarly, Section 12 of the 1902
OIC empowered the Commissioner to make ordinances and other laws but in exer-
cise of this legislative power he was to ‘respect existing law and custom in so far as
they (were) favouring (of) the individual over the community’. The purpose was
not to upset the status quo all of a sudden. However, in so doing, such legislation
ended up being very useful in the realm of administrative law since most of the core
principles of administrative law such as the protection of public servants, equality,
non-discrimination, a bar on abuse or improper use of discretionary powers, are all
based on favouring the individual over the powerful state or community.
They were supervised by the District Commissioner but appointed and could
only be dismissed by the central government.13 In the preceding structure, the
local people did not have powers to appoint or even remove from office any chief
that they thought did not serve to their expectation. In 1949, an African Local
Governments Ordinance (revised laws of Uganda, 1951, Cap. 74) was enacted.14
The African Local Government Ordinance and District Council Proclamations
and Regulations of 1949 relatively changed the structure. They established the dis-
trict as a local government unit with a fairly autonomous administration with the
District Councils as its organs.15
The District Councils were comprised of elected members who were respon-
sible for the administration of the district. Nonetheless, the central government
still retained overriding powers over the District Council decisions. In this struc-
ture, the kingdoms (Buganda, Toro, Ankole) were administrative units which did
not operate as federal states within the system. Regulations were made under the
African Local Governments Ordinance.16 According to these, the districts outside
of Buganda were to have local government jurisdiction over Africans only; the
local governments were to be composed of chiefs, district councils and lower coun-
cils.17 Persons to serve on the local governance units were elected to the councils
and it is from these councils that those that served on higher councils in the hier-
archy were elected.18
11
Ibid.
12
Ibid.
13
Ibid.
14
15
The African Local Government Ordinance and District Council Proclamations and Regulations
of 1949.
16
Revised Laws of Uganda, 1951, Cap. 74.
17
Morris and Read op cite 3 at 37.
18
Ibid.
On the whole, local governance structures for most part during the above phase
were not necessarily for the benefit of the people; but mostly facilitation of indirect
rule and ensuring a tight grip on the colonised.
3. AN EXAMINATION OF ADMINISTRATIVE LAW POST 1995

Judicial review refers to the court’s power to assess the actions of other branches
or levels of government, especially the court’s power to invalidate legislative and
executive actions as being unconstitutional.19
In Uganda, contemporary judicial review finds its basis in the Constitution, the
Judicature Act Cap 13 and the Judicature (Judicial Review) Rules 11/2009. Article 42
of the 1995 Constitution provides that ‘[a]ny person appearing before any adminis-
trative official or body has a right to be treated justly and shall have a right to apply
to a court of law in respect of any administrative decision taken against him or her’.
Section 36(1) of the Judicature Act provides that the High Court may upon
an application for judicial review, make an order, as the case may be, of; (a) man-
damus, requiring any act to be done; (b) prohibition, prohibiting any proceedings
or matter; or (c) certiorari, quashing any decision of the lower tribunal. Section 36(2)
also provides that no order of mandamus, prohibition or certiorari may be made in
any case in which the High Court is empowered by the exercise of the powers of
review or revision contained in that or any other enactment to make an order of
like effect as would be rendered unnecessary. Judicial review is an inherent power
of the High Court in this regard.
The importance of remedies generally is reflected in the maxim ubi ius ibi reme-
dium — where there is a right, there is a remedy. It is axiomatic that a legal right is
of little, if any use, unless accompanied by an effective remedy. Remedies should
be effective in terms of both procedure and effect, that is to say, the procedure for
obtaining the remedy should be clear, simple and speedy and the remedy once
granted should be suitable to protect the legal right from infringement and/or to
compensate the victim for such infringement.
In the case of Loyola v Inspector General of Government20 Judge Stephen Musota
laid down the principles concerning judicial review and prerogative orders as
follows:
They are not aimed at providing final determination of private rights which is done in
normal civil suits. The said orders are discretionary in nature and [the] Court is at liberty
to refuse to grant any of them if it thinks fit to do so even depending on the circum-
stances of the case where there had been clear violation of the principle of natural justice:
The discretion … has to be exercised judicially and according to settled principles. It has
to be based on common sense as well as justice … Court has to give consideration to all
relevant matters of the cause before arriving at a decision in exercise of its discretion.
19
Bryan A. Garner (ed) Black’s Law Dictionary (2011) 852.
20
Loyola v Inspector General of Government Misc Cause No. 059 of 2016 at para 14.
The above dictum by Judge Musota was rendered while agreeing with the decision
in Koluo Joseph Andres and 2 Ors v Attorney General21 where, at paragraph 23, it was
held that:
It is trite law that Judicial Review is not concerned with the decision in issue per se but
with the decision-making process. Essentially Judicial Review involves the assessment
of the manner in which the decision is made. It is not an appeal and the jurisdiction
is exercised in a supervisory manner, not to vindicate rights as such but to ensure that
public powers are exercised in accordance with the basic standards of legality, fairness
and rationality.
The Judge further stated at paragraph 26 that: The purpose of Judicial Review is to
ensure that the individual receives fair treatment not to ensure that the authority
after according a fair treatment reaches on a matter it is authorized or enjoined by
law to decide from itself a conclusion which is correct in the eyes of the Court. The
Court also relied on the case of An Application by Bukoba Gymkhana Club:22
In order to succeed in an application for judicial review, the applicant has to show that
the decision or act complained of is tainted with illegality, irrationality or procedural
impropriety … Procedural impropriety is when there is a failure to act fairly on the part
of the decision-making authority in the process of taking a decision. The unfairness may
be in non-observance of the rules of natural justice or to act with procedural fairness
towards one to be affected by the decision. It may also involve failure to adhere [to] and
observe procedural rules expressly laid down in a statute or legislative Instrument by
which such authority exercises jurisdiction to make a decision.
However, it must again be remembered that the judicial power here is one of review.
A decision challenged cannot be overturned on the merits and a fresh decision
substituted. The decision-maker is free to render the decision afresh, provided they
do so within the law. As Judge Elizabeth Musoke observed in Kihika v Igeme Nabeta
and 6 others,23 judicial review ‘is not an appeal and the jurisdiction is exercised
in a supervisory manner, not to vindicate rights as such, but to ensure that public
powers are exercised in accordance with the basic standards of legality, fairness and
rationality’.
In the case of Proline Soccer Academy v Lawrence Mulindwa and 4 others,24at para-
graph 21, Justice Yorokamu Bamwine defined judicial review by stating that:
The legal authorities show that the primary object of the prerogative orders of certiorari
and prohibition is to make the machinery of government operate properly and in the
public interest. Judicial Review is concerned not with the decision per se but the deci-
sion-making process. Essentially, it involves an assessment of the manner in which a
decision is made. It is not an appeal and the jurisdiction is exercised in a supervisory
manner, not to vindicate rights as such, for instance in the instant matter that the appli-
cant is or is not entitled to participate in the National Super League being organized by
the respondents, but to ensure that public powers are exercised in accordance with basic
standards of legality, fairness and rationality.
21
Joseph Andres and 2 Ors v Attorney General Misc. Cause No. 106 of 2010.
22
An Application by Bukoba Gymkhana Club [1963] EA 478 at 484.
23
Kihika v Igeme Nabeta and 6 others Misc. Cause No. 88 of 2014.
24
Proline Soccer Academy v Lawrence Mulindwa and 4 others HCT-00-CV-MA-0459-2009.
The import of this decision is that administrative law is primarily concerned with
the arbitrary exercise of powers of public bodies and not necessarily private bodies.
Certiorari and prohibition are similar in effect, with the essential difference
between them being one of timing. These (remedies) are granted at the suit of the
Crown, and they are ‘prerogative’ because they (were) originally available only on
the Crown and not on the subject.25 Certiorari lies to quash a decision already made;
prohibition to prevent the commission of a future act which would be ultra vires or
in breach of natural justice. The remedies are often complementary, with certiorari
quashing a decision already reached and prohibition controlling the legality of
future decisions. They are discretionary. Mandamus compels the performance of a
public duty (which nowadays is most usually a statutory duty). Whereas certiorari
and prohibition serve to control illegal acts, mandamus serves to compel a public
authority to act where it has failed in its duty to do so. A statutory duty must
also be performed within a reasonable time and mandamus lies to compel such
performance.
According to Ssekaana, the purpose of judicial review is to check that public
bodies do not exceed their jurisdiction and carry out their duties in a manner
that is detrimental to the public at large. Judicial review is only available against a
public body in a public law matter.26 In essence, two requirements need to be satis-
fied; firstly, the body under challenge must be a public body whose activities can
be controlled by judicial review. Secondly, the subject matter of the challenge must
involve claims based on public law principles and not the enforcement of private
law rights.
A critical development in the post-1995 period has been the expansion of the
power of judicial review beyond its apparent limits under the common law. The
common law appears to emphasise the distinction between public and private law.
Public law regulates the relations between individuals and government agencies
and between government agencies. Private law regulates the relations of private
persons. The distinction is necessary because it has been felt necessary to subject
the government to a special regime of laws which can either give it greater freedom
or restrain this freedom. In private law the role of the courts is essentially only to
apply the law. Some government activities (contracts and torts) are of course also
regulated by the private law regime. The public law nature of the activity does not
depend solely on whether it is being exercised by a public authority but also on
whether it was being exercised in the interest of a public function.27 Public law
only serves to regulate the conduct of decision-makers in the public sphere. If the
decision-maker is not a public body, judicial review will ordinarily not be available.
Instead, an action in private law must be pursued. In deciding whether a body is
25
HWR Wade and CF Forsyth Administrative law (2014) 500.
26
M Ssekaana Public Law in East Africa (2009) 37.
27
Abebe F ‘Notes on administrative law: French and English experience’ 4(1) Mizan Law Review,
160.
a ‘public’ body for this purpose, the courts will consider both the source and the
nature of the power being exercised.28
The case of Arua Kubala Park Operators and Market Vendors Cooperative Society
Limited v Arua Municipal Council29 tackled the public-private dichotomy of judi-
cial review. In this case, the respondent made a decision to terminate a contract
in which the applicant had won the bid. The applicant sought the decision to be
subjected to judicial review and quashed (cancelled) and that the contract be re-in-
stated. Justice Stephen Mubiru, at paragraph 33, observed that:
Judicial review of administrative action is a procedure by which a person who has been
affected by a particular administrative decision, action or failure to act by a public
authority, may make an application to the High Court, which may provide a remedy if it
decides that the authority has acted unlawfully. While it has been said that the grounds
of judicial review ‘defy precise definition’, most, if not all, are concerned either with the
processes by which a decision was made or the scope of the power of the decision-maker.
A key question that often arises at the commencement of judicial review challenges is whether
the decision challenged is a public law decision and therefore amenable to judicial review or a
private law decision and not. At the heart of the problem is that it is possible to act in both
capacities at the same time. Just because the decision-making body is a public body it
does not necessarily follow that its actions should be governed by public law principles.
[Emphasis added.]
Public Law has been described as the system which enforces the proper performance by
public bodies of the duties which they owe the public while private law, on the other
hand, is concerned with enforcement of personal rights of persons, human or juridical,
such as those emanating under property, contract, duty of care under tort and mainly
regulates relations between private persons. Not every act of a statutory body necessarily
involves an exercise of statutory power. Some statutory duties imposed on public bodies
may still create private rights in favour of individuals; enforceable by way of ordinary
claim only. In addition, public bodies perform private law acts all the time in respect of
which they can sue and be sued in private law proceedings: breaches of contract and cov-
enants in leases and tenancy agreements, nuisance and negligence, employment of staff,
personal injury, etc. are examples. It is therefore always necessary to analyse the nature
of the decision or act to decide whether it is properly classified as existing in public or
private law, given that for judicial review to be the appropriate form of challenge, it is
necessary that the decision or act exists in public law.30
The case of R v East Berkshire Health Authority ex parte Walsh31 was cited as an
illustration. The case involved an application for certiorari by an employee of a
public body, namely a senior nursing officer of the East Berkshire Health Authority,
whose services were terminated by the District Nursing Officer, on the recommen-
dation of a committee of inquiry. He then took two parallel steps. He first set in
motion the appropriate industrial dispute procedure and then applied for certio-
rari to quash his dismissal and any subsequent appellate proceedings thereto. In
28
Ibid.
29
Arua Kubala Park Operators and Market Vendors Cooperative Society Limited v Arua Municipal Council
Misc Cause No. 0003 of 2016.
30
Ibid.
31
R v East Berkshire Health Authority ex parte Walsh [1984] 3 WLR 818.
relation to the preliminary point raised by the health authority that the judicial
review proceedings were incompetent, as relating to a matter of private law, Sir
John Donaldson MR said:
The remedy of judicial review is only available where an issue of ‘public law’ is involved
but … the expressions ‘public law’ and ‘private law’ are recent immigrants and whilst
convenient for descriptive purposes must be used with caution, since English Law tra-
ditionally fastens not so much upon principles as upon remedies. On the other hand,
to concentrate on remedies would in the present context involve a degree of circuitry or
levitation by traction applied to shoestrings, since the remedy of ‘certiorari’ might well
be available if the health authority is in breach of a ‘public law’ obligation but would not
be if it is only in breach of a ‘private law’ obligation.32
A similar decision is to be found in Regina v Civil Service Appeal Board Ex Parte
Bruce,33 where May LJ, said:
I think that at the present time in at least the great majority of cases involving
disputes about the dismissal of an employee by his employer, the most appropriate
forum for their resolution is an industrial tribunal (now of course an employment
tribunal). The Courts should not be astute to hold that any particular dispute is
appropriate for consideration under the judicial review procedure.34
It has been said that what must be identified to distinguish private matters from
public matters (subject to judicial review) ‘is a feature or a combination of features
which impose a public character or stamp on the act’.35 What is needed, however,
is some guidance as to what ‘public’ might mean in this context. As Dyson LJ has
explained:
The question whether the decision of a body is amenable to judicial review requires a
careful consideration of the nature of the power and function that has been exercised to
see whether the decision has a sufficient public element, flavour or character to bring it
within the purview of public law. It may be said with some justification that this crite-
rion for amenability is very broad, not to say question-begging.36
Thus, notwithstanding that the complaint is against a public body, it is a pre-
requisite that the right sought to be enforced is a public law right rather than a
private law right. In other words, that the decision infringed upon a right entitled
to protection under public law. There must be a public dimension to justify having
recourse to relief by way of judicial review and where a transaction is unrelated to
the public interest an aggrieved party has a remedy in private law.37
To bring an action for judicial review, it is a requirement that the right sought
to be protected is not of a personal and individual nature but a public one enjoyed
32
Ibid at at 824.
33
Regina v Civil Service Appeal Board Ex Parte Bruce [1988] ICR 649.
34
Ibid at 757.
35
See Poplar Housing and Regeneration Community Association Ltd v. Donoghue [2002] QB 48, at para
65, per Lord Woolf CJ.
36
R (Beer t/a Hammer Trout Farm) v. Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233, at pp.
240–241.
37
Arua Kubala Park Operators and Market Vendors Cooperative Society Limited v Arua Municipal Council
Misc Cause No. 0003 of 2016.
by the public at large. The ‘public’ nature of the decision challenged is a condition
precedent to the exercise of the courts’ supervisory function. If the relationship is
governed by private law (no matter how ineffective), then judicial review is appar-
ently unavailable. In disputes arising from the performance of contracts as in this
case, it is then reasonable to look at the availability and effectiveness of contractual
remedies. If these remedies were available and effective, the court would decline to
exercise its judicial review discretion.38
The court went on to expound this point by stating that there is a dichotomy
between the ‘decision-making’ and ‘executive’ functions of a public authority. The
former involves the exercise of discretionary powers invested in the authority by
Parliament and which are for the authority to exercise rather than for the court.
Those functions can only exist in public law. The latter functions are no more than
the implementation of the public law decision and should be enforced by private
action. Therefore, judicial review applies only to a public authority’s capacity to
contract and not the terms of the contract itself. There may well be cases in which a
true public law claim vitiates a contractual claim, for example if a public authority
takes a decision to terminate a contract where such decision is made in bad faith. In
the exercise of its supervisory jurisdiction, the court may well quash the decision.
But all that means is that the public authority is free to take the decision again;
and if it reaches the same decision in good faith, the contract will be terminated.
Where a relationship is regulated by the law of contract, administrative law rem-
edies should generally not be available. It is important that parties are held to
their contractual obligations through ordinary suits and not by invoking public
law remedies. A party should not take advantage of public law simply because it
contracted with a public body, and thereby obtain an advantage in the enforce-
ment of that contract, that would otherwise not be available against a non-public
body or private person.39
In Fuelex Uganda Limited v Attorney General and Ors40 it was held that the
emerging practice whereby litigants in judicial review proceedings tend to present
any non-persons as respondents to applications is wrong. According to the Court,
while it could issue a judicial review order against a non-legal entity, and while it
was clearly part of the essence of the objective of the supervisory jurisdiction of
the High Court to ensure that the machinery of government operate in a proper
manner, that did not mean that non-legal entities should be parties to judicial
review proceedings. The law requiring that only legal entities may be parties to
civil proceedings remained in place in all instances of civil proceedings, including
judicial review.
However, in other instances judges in Uganda appear to have expanded the
traditional boundaries of judicial review that strictly maintained the public-private
dichotomy in seeking redress from decisions of private actors and those of public
38
Ibid.
39
Ibid.
40
Fuelex Uganda Limited v Attorney General and Ors [2014] UGHCCD 104.
bodies. Indeed, the blurring of the public-private dichotomy can be illustrated in

the following case.
In International Development Consultants Limited v Jimmy Muyanja and 2 Others41
the applicant filed an application for judicial review against the first respondent
acting in his capacity as the Executive Director of the second respondent, the
Centre for Arbitration & Dispute Resolution (CADER), and the third respondent
in his personal private capacity and not in his capacity as the arbitrator, seeking,
among others, an order of certiorari quashing the proceedings, rulings and orders
of the second respondent. In resolving the issue as to whether the court had juris-
diction to entertain the application, Justice Musa Ssekaana stated, at paragraph 35
that:
Firstly, the jurisdiction of the court on an application for Judicial Review is established
by Art. 42 of the Constitution which provides ‘a right to fair and just treatment for any
person appearing before any administrative official or body and a right to apply to court
in respect of any administrative decision taken against any such person.’ The jurisdiction
is further amplified by Sect. 36(1)(a), (b) & (c) of the Judicature Act Cap 13 and Rules 3(1)
(a), (b) & (2)(a), (b) and (c) of The Judicature (Judicial Review) Rules, 2009. Undoubtedly
therefore, the court is clothed with jurisdiction to entertain an application for judicial
review and to grant the orders sought. The main contention in issue is whether the court
has jurisdiction to entertain the current application in light of the provisions of section
9 of the Arbitration & Conciliation Act Cap 4 (hereinafter referred to as the ACA) which
provides thus; ‘Except as provided in this Act, no court shall intervene in matters gov-
erned by this Act.’
He further explained that the statutory provision was an ‘ouster clause’ the rationale
of which was that the legislature having conferred decision making powers on
administrative bodies may seek to limit, preclude or oust the court’s jurisdiction to
scrutinise those powers. He was therefore dealing with the issue as to whether in
the present case section 9 of the ACA could be relied upon to exclude the judicial
review of the court.
He relied on the decision in Fr. Francis Bahikirwe Muntu and 15 Ors v Kyambogo
University42 where Judge Remmy Kasule held that: ‘The right to apply for judicial
review is now constitutional in Uganda. Article 42 gives one, before an administra-
tive official or body, a right to be treated fairly with a right to apply to a court of law
regarding an administrative decision taken against such a person. The right to just
and fair treatment cannot be derogated according to Article 44’.43
While deciding the issue in the affirmative, Judge Ssekaana, at paragraph 40,
held that:
The exercise of power by persons not authorized by the Act can indeed be a subject of
judicial review and does not in any way conflict with section 9 which bars intervention
in matters governed by the Arbitration and Conciliation Act. It therefore follows that
Arbitration must be carried out in a way that is consistent with Constitutional principles
41
International Development Consultants Limited v Jimmy Muyanja and 2 Others [2019] UGHCCD 6.
42
Fr. Francis Bahikirwe Muntu and 15 Ors v Kyambogo University Misc. Application No. 643 of 2005
(Unreported).
43
Ibid at 7.
and values and any derogation thereof may be challenged as being unconstitutional and
thus invalid. … It therefore follows that Arbitration must be carried out in a way that is
consistent with Constitutional principles and values and any derogation thereof may be
challenged as being unconstitutional and thus invalid.
The second issue dealt with whether the application was properly brought against
the t third respondent as it was brought against him in his personal private capacity
instead of bringing the application in his capacity as the Arbitrator. Furthermore,
since the third respondent was not a public officer or a public institution, the
option of judicial review of his decision was not amenable. The Judge relied on his
published work, in which he had stated:
The purpose of judicial review is to check that public bodies do not exceed their juris-
diction and carry out their duties in a manner that is detrimental to the public at large.
Judicial review is only available against a public body in a public law matter. In essence,
two requirements need to be satisfied; first, the body under challenge must be a public
body whose activities can be controlled by judicial review. Secondly, the subject matter
of the challenge must involve claims based on public law principles and not the enforce-
ment of private law rights.44
He postulated that a party may be joined in a suit not because there is a cause of
action against it, but because that party’s presence is necessary in order to enable
the court to effectually and completely adjudicate upon and settle all questions
involved in the cause or matter. Since the application sought an order of certiorari to
quash the proceedings and also sought specific orders against the third respondent,
it made him an indispensable party whose participation was required for purposes
of rendering a judgment and his rights (appointment) would be directly affected by
the disposition of the case.
The court in the case of Proline Soccer Academy v. Lawrence Mulindwa & 4 Ors (HCT-
00-CV-MA-0459-2009)45 in which one of the respondents was an unincorporated
association without capacity to sue and/or be sued held that there was no require-
ment that prerogative orders should only issue to public bodies and offices that had
corporate personality. The court relied on the case of John Jet Tumwebaze v Makerere
University Council & Ors46 in which the court opined that:
If the legislature desired that these orders issue only against bodies clothed with cor-
porate personality, the legislature would have expressly stated so. It did not. The wide
jurisdiction given to court as to the public bodies and officers at which prerogative orders
can be directed must not be narrowed down by restricting their issuance to only those
bodies clothed with corporate personality.
Another important development has been the extension of administrative law into
matters of a criminal nature. An example in this regard is provided by the case
of Uganda v Robert Sekabira & 10 Ors47 in which the Court observed that in the
44
Ssekaana op cit note 26 at 37.
45
Proline Soccer Academy v Lawrence Mulindwa & 4 Ors HCT-00-CV-MA-0459-2009.
46
John Jet Tumwebaze v Makerere University Council & Ors H.C Civil Application No. 353 of 2005
(unreported).
47
Uganda v Robert Sekabira & 10 Ors H.C. Cr. Case No. 0085 of 2010.
process of producing and presenting suspects in Courts, the police and the pros-
ecution usually violated numerous constitutional rights of accused persons, and
that even where such violations were brought to the notice of Courts, the prosecu-
tion went ahead as if nothing had gone amiss. In this context, the Court observed
that English authorities were also extremely instructive and noted that in R vs.
Horseferry Road Magistrates Ex parte Bennet48 the House of Lords stated:
‘… it is the function of the High Court to ensure that the executive action is exercised
responsibly and as parliament intended. So also it should be in the field of criminal law
and if it comes to the attention of the Court that there has been a serious abuse of power
it should, in my view express its disapproval by refusing to act upon it … The Courts, of
course, have no power to apply direct discipline to the police or the prosecuting author-
ities, but they can refuse to allow them to take advantage of abuse of power regarding
their behaviour as an abuse of process and thus preventing a prosecution.’
The divorce of public and private law and the eventual fallacy of the dichotomy
had led different procedural requirements and the impossibility of dividing public
and private law especially when it came to duties of public authorities.49 This sce-
nario is a rather radical departure from the traditional notion as noted by Oluyede
thus:
In modern administrative law, certiorari, prohibition and mandamus form the actual
realm of prerogative remedies. ‘Certiorari and prohibition are both part of the machinery
for controlling the administration of justice, which is primarily the Crown’s (State’s)
concern. Both remedies issue from the High Court, and both are designed to keep infe-
rior courts (tribunals or administrative bodies) within their proper jurisdiction.50
This is in line with Section 36 of the Judicature Act of Uganda which states that:
(1) The High Court may make an order, as the case may be, of—
(a) an order of mandamus requiring any act to be done;
(b) an order of prohibition, prohibiting any proceedings or matter;
(c) an order of certiorari; removing any proceedings or matter to the High Court.51
The Judicature (Judicial Review) Rules, state that ‘an application for judicial review
shall be made promptly and in any event within three months from the date when
the grounds of the application first arose, unless the Court considers that there
is good reason for extending the period within which the application shall be
made.’52 Unlike mandamus which is distinct and clear, the difference between cer-
tiorari and prohibition is best underscored by Oluyede as:
These two prerogative orders are very similar and they are hand-in-glove. The difference,
however, between the two orders is, essentially, that the order of certiorari operates to
quash a decision that has been made in excess of legal authority. On the other hand the
order of prohibition operates to prevent an authority from acting in excess of its legal
authority before the authority has completed its proceedings.53
48
R vs. Horseferry Road Magistrates Ex parte Bennet [1994] 1 A. C. 42.
49
Wade and Forsyth op cit note 34 at 568.
50
PO Oluyede Administrative Law in East Africa (2010) 184.
51
The Judicature Act, Cap. 13.
52
Sections 3 and 5 of The Judicature (Judicial Review) Rules, 2009 (No. 11 of 2009).
53
PO Oluyede op cit note 50 at 187.
This is a great observation, as not all hope is lost for a person who fails to apply for
an order of prohibition on time since he or she can apply for an order of certiorari
after the decision has been made, asking court to quash (cancel) the decision.
4. ‌CONCLUSION
The post-1995 era has seen an evolution in the principles of administrative law
especially in terms of the traditional public-private dichotomy that existed in
English administrative law.
The new trends created by the Ugandan judiciary as discussed show that the
judges are expanding the scope of administrative law remedies to private actors thus
extending the remedies available to private persons to include formerly exclusively
public law remedies. This development is in line with Article 42 of the Constitution
which (merely) states that ‘any person appearing before any administrative official
or body has a right to be treated justly and fairly and shall have a right to apply to
a court of law in respect of any administrative decision taken against him or her.’54
It is clear and apparent that Article 42 does not distinguish between the public and
private (sectors) and therefore the remedies which accrue as a result of any applica-
tion made based on this constitutional provision should be enjoyed by both (those)
in the public and private sectors. Article 42 is worded in such a way that it creates
the right to just and fair treatment in administrative decisions. Similarly, Article
20(2) of the Constitution notes that ‘the rights and freedoms of the individual
and groups enshrined in this Chapter shall be respected, upheld and promoted
by all organs and agencies of Government and by all persons.’ Thus, whereas the
traditional English administrative law created a distinction between the public
and private sectors, this divide has now been blurred by the 1995 Constitution of
the Republic of Uganda among other laws in the post-1995 era giving a positive
outcome of an evolution in the principles of administrative law to cover both the
public and private sectors.
54
Constitution of the Republic of Uganda (1995), Cap. 1.
Chapter 7
Administrative Justice in South Africa:

An Overview of Our Curious Hybrid
L AUREN KOHN* AND HUGH CORDER †
ABSTRACT
Administrative law in South Africa has under- provide greater detail in respect of the rights,
gone a thorough process of reform since which was accomplished by early 2000.
the advent of a democratic constitutional However, the unduly complex definition of
system in 1994. With its roots firmly in judi- the key gateway to judicial review, that of
cial review of administrative action along the “administrative action”, together with the
common-law approach in its English ante- necessity that executive action also be sub-
cedents, the track record of the courts before jected to constitutional review by the courts,
1994 was dismal, given their overweening led to the development of an alternative and
deference to the excessive abuse of discretion vigorous pathway to review, through the prin-
by the executive. This created the ideal foun- ciple of legality. The interplay between these
dation for thorough reform of the administra- two avenues to achieve judicial review of the
tive review system, which was initiated by the exercise of public power, together with the
inclusion in the transitional Bill of Rights of establishment and development of non-ju-
1993 of a right to administrative justice. Such dicial means of review, such as the office of
a right was subsequently included in the final the Public Protector, and the necessity for an
Constitution of 1996, in a simplified and more appropriate approach to judicial deference to
extensive format, complemented by the rights the executive under the separation of powers
of access to information and access to court. doctrine, have dominated the post-apartheid
An additional requirement was the drafting jurisprudence in this area, and are spelled out
and enactment by Parliament of legislation to in this chapter.
1. BACKGROUND AND DEVELOPMENT

Context matters and the South African system of administrative law is quite evi-
dently a product of the particular socio-political context out of which it evolved,
and a response to current context in which it operates. It is a curious hybrid of the
old and the new: in part, due to its common-law roots, it still bears the stamp of

* B Bus Sci LLB (UCT) LLM (UCT). Currently an external PhD Candidate (and Fellow) at Leiden
Law School in the Netherlands. Senior lecturer, Administrative & Constitutional Law. Attorney
of the High Court of South Africa.
†
B Com LLB (Cape Town) LLB (Cantab) D Phil (Oxon). Professor of Public Law, University of Cape
Town.
This contribution is a more extensive and updated version of Lauren Kohn & Hugh Corder
‘Judicial Regulation of Administrative Action’ in Christina Murray and Coel Kirkby (eds) South
Africa Constitutional Law in International Encyclopaedia of Laws — Suppl. 108 (2014), (Kluwer,
Netherlands), Part IV, Chapter 4, pp 253–277. We acknowledge, with thanks, permission from
the editors and publishers of the earlier version to revise it for present purposes.
120
A dministrative J ustice in S outh A frica : A n O verview of O ur C urious H ybrid 121
the country’s unfortunate apartheid heritage, yet at the same time it is a field of law
that epitomises the negotiated constitutional ‘revolution’1 that indelibly changed
the South African legal landscape. Chaskalson P explained the implications of this
transformation in the benchmark decision of Pharmaceutical Manufacturers:2
[A]dministrative law occupies … a special place in our jurisprudence … It is built on
constitutional principles … Prior to the coming into force of the interim Constitution,
the common law was ‘the main crucible’ for the development of these principles of con-
stitutional law. The interim Constitution … was a legal watershed. It shifted constitu-
tionalism, and with it all aspects of public law, from the realm of the common law to the
prescripts of a written constitution which is the supreme law.3
Prior to this shift, South African administrative law was entirely common-law
based and bore all the hallmarks of its parent English system. In particular, thanks
in large part to the influence of the English constitutional lawyer, Albert Venn
Dicey, it rested upon the twin pillars of parliamentary sovereignty and the rule
of law with its obverse facet, the ultra vires doctrine (which operated as the organ-
ising rationale of administrative law). Along with this Westminster inheritance
came a deep distrust of government and discretionary power, and a concomi-
tantly heavy reliance on judicial review of administrative action as the principal
means of checking such power. Unfortunately, transplanted into the South African
context, these two key organising principles of English constitutional law failed
to complement one another. Under apartheid, parliamentary sovereignty came to
be associated with rule by law,4 rather than a substantive notion of the rule of law
pursuant to which law is insulated from politics, and judges serve as impartial and
independent guardians of human rights. The separation of powers did not exist as
a practical reality and parliamentary sovereignty came to be coupled with judicial
timidity as the hamstrung courts struggled to find ways of regulating public power,
which was largely abused in pursuit of racist ends.
The ‘old’ administrative law was thus ‘underdeveloped and functioned in an
undemocratic system that was antagonistic to fundamental rights and was secretive
as well as unaccountable.’5 It was, in many respects, what Dean termed a ‘dismal
science’,6 and unfortunately this ‘science’ was the sole legal interface between
citizen and state. This in turn meant that when administrative law was employed
to achieve just outcomes, it operated as a kind of an informal, small-scale Bill of
Rights. Given this genesis, it evolved in a fairly casuistic manner and was spread
thin having to do the work of, for example, what would now be addressed through
1
Iain Currie & Johan de Waal The new constitutional & administrative law (2001) at 37.
2
Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa
2000 (3) BCLR 241 (CC).
3
Ibid para 45.
4
David Dyzenhaus ‘The pasts and future of the rule of law in South Africa’ (2007) 124 South
African Law Journal 734 at 738.
5
Clive Plasket ‘Post-1994 administrative law in South Africa: the Constitution, the Promotion of
Administrative Justice Act 3 of 2000 and the Common Law’ (2007) Speculum Juris 25.
6
WHB Dean ‘Our administrative law: A dismal science?’(1986) South African Journal on Human
Rights 164.
labour law, equality law, access to information law and so on.7 In the absence of
an overarching legitimating constitutional and political theory to underpin it,
the broad spectrum of common-law principles of administrative law lacked both
consistency and coherence. The dawn of the constitutional era, based upon the
founding values of (amongst others) constitutional supremacy, the rule of law,
accountability, responsiveness and openness,8 brought with it these fundamental
theoretical underpinnings; primarily in the form of a full-scale Bill of Rights. With
this shift came a shrinking of the social function of administrative law review,9
which no longer has to operate as the primary bulwark against state excesses.
In 1994, the Interim Constitution10 introduced, (in somewhat technical lan-
guage) a substantial set of administrative justice rights,11 including the funda-
mental entitlements to lawful12 and procedurally fair 13administrative action.
In addition, ‘every person’ was afforded the right to be given written reasons for
administrative action affecting his or her ‘rights or interests’.14 Furthermore, given
the limited life of the Interim Constitution and the fraught nature of the constitu-
tional negotiations which produced it, the right stopped short of including review
for reasonableness. As a compromise aimed at balancing administrative efficiency
with accountability, the notion of ‘justifiability’ was introduced as an additional
ground of review, in that ‘every person’ was given the right to ‘administrative
action which is justifiable in relation to the reasons given for it where any of his or
her rights is affected or threatened’.15 These twin requirements of reason-giving
and justifiability were welcomed as a bold break from the past.
The enactment of the (Final) Constitution in 199616 brought with it a more
straight-forward composite administrative justice right. Section 33 states:
(1) Everyone has the right to administrative action that is lawful, reasonable and proce-
durally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the
right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must –
(a) provide for the review of administrative action by a court or, where appropriate,
an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2);
and
(c) promote an efficient administration.
7
Hugh Corder ‘Without deference, with respect: A response to Justice O’Regan’ (2004) South
African Law Journal 438 at 439.
8
Section 1(d) of The Constitution of the Republic of South Africa, 1996.
9
Kate O’Regan ‘Breaking ground: some thoughts on the seismic shift in our administrative law’
(2004) 121 South African Law Journal 424 at 429.
10
The Constitution of the Republic of South Africa Act 200 of 1993 (‘the Interim Constitution’).
11
Ibid at s 24.
12
Ibid at s 24(a).
13
Ibid at s 24(b).
14
Ibid at s 24(c). Emphasis added.
15
Ibid at s 24(d). Emphasis added.
16
The Constitution (n 8).
The interim administrative justice right remained in force17 until 3 February 2000,
when the constitutionally mandated legislation, the Promotion of Administrative
Justice Act18 (‘the PAJA’), was assented to by the President. This Act serves as the
primary basis for judicial review of administrative action. Ironically, this ‘trium-
phal legislation’19 has done more to curtail — rather than enhance — the enjoyment
of the administrative justice rights. This is chiefly due to the Act’s narrow and over-
ly-complicated definition of the gateway concept of ‘administrative action’. As a
result, the administrative law of today is suffering from its own form of complexity
and inaccessibility, which has in turn led to the emergence of a ‘proliferation of
pathways’ to review20 in order to capture in the net those exercises of public power
which fall short of the PAJA incarnation of ‘administrative action’, or simply avoid
this stumbling block of a definition all together.
The discussion that follows elucidates how the courts have sought to regulate the
exercise of public power through each of these modes of review with their under-
pinning causes of action. We also draw attention, albeit in summary terms, to
the non-judicial avenues for challenging, and/or proactively reforming, admin-
istrative conduct and the exercise of public power more broadly. These avenues
include, for example, the access to information regime which flows from adminis-
trative justice’s sister right in section 32 of the Constitution,21 and the Chapter 9
Institutions (‘State Institutions Supporting Constitutional Democracy’) such as the
Public Protector.
2. JUDICIAL REGULATION OF THE EXERCISE OF PUBLIC POWER

(a) The review/appeal distinction
Notwithstanding South Africa’s radical break from the past, judicial review con-
tinues to be the most prominent mechanism for curbing and controlling malad-
ministration and other abuses of public power. It is not however, an unbridled
court process. Under the influence of the Diceyan heritage of a ‘watchdog’ theory
of government (as a beast to be shackled rather than empowered) and the adoption
of the doctrine of the separation of powers, South African law has endorsed the
review/appeal dichotomy as a fundamental principle of administrative law (as well
as constitutional review more broadly) and a key mechanism to limit the so-called
judicialisation of politics. To this end, the courts’ powers of judicial review, though
fairly extensive, are limited by virtue of review’s formal definitional demarcation
from the process of appeal. Both court processes allow the reconsideration of a
17
In terms of item 23(2)(b) of Schedule 6 to the Constitution (n 8).
18
Act 3 of 2000.
19
Sasol Oil (Pty) Ltd v Metcalfe NO 2004 (5) SA 161 (W) para 7.
20
Cora Hoexter Administrative Law in South Africa 2ed (2012) at 131.
21
Section 32 of the Constitution (n 8) grants everyone the right of access to information held by
the state, and in private hands (in the latter case, where it is required for the exercise or protec-
tion of any rights, which would include the administrative justice rights), and the Promotion of
Access to Information Act 2 of 2000 (the ‘PAIA’) is the constitutionally mandated legislation that
gives effect to this right.
decision, but they flow from contrary premises and thus have fundamentally dif-
ferent aims. In terms of this distinction, the appeal process is about determining
the correctness of a decision, through an assessment of its substantive merits. It is a
more searching process because it requires a court to make a finding as to whether
the decision-maker in question was right or wrong. Review, on the other hand, is
a less exacting procedure in terms of which the court assesses the decision-making
process to determine whether the outcome was arrived at in an acceptable fashion,
for example, in an unbiased and rational manner.
Since the advent of constitutional democracy with its emphasis on fairness and
reasonableness, this bright-line distinction is dimming as the courts — although
not always explicitly — regularly assess the substantive merits of public deci-
sion-making in the course of ascertaining whether the decision in question was
arrived at in an acceptable fashion.22 This wider form of review has encouraged a
fundamental shift away from an all-or-nothing approach to dispensing adminis-
trative justice to a more nuanced context-sensitive approach.
(b) The nature of public powers and functions

Today, every exercise of public power is to some extent justiciable under the
Constitution,23 even if it falls short of the PAJA definition of administrative action,
and indeed in the wake of the curious Constitutional Court judgment in Gijima:24
even if the power does not so fall short. Despite its narrowness, the definition has as
its touchstone the ‘public’ element of a power or function25 and it is this overarching
(and ever-expanding)26 criterion that guides the judicial control of state excesses
more generally. Administrative law principles thus apply whenever there is action
involving the use of public power or the performance of public functions — even
when exercised by private entities, which are explicitly included in the purview of
22
See for example Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)
para 45, where O’Regan J noted that, ‘the review functions of the Court now have a substantive
as well as a procedural ingredient, [yet] the distinction between appeals and reviews continues
to be significant’.
23
O’Regan J in Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC) para 244.
24
See State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited 2018 (2) SA 23
(CC). The net effect of this bizarre piece of judicial reasoning is that ‘state self-review’ (namely
judicial review of administrative action by the organ of state that took it) is now to be done via
the principle of legality rather than the PAJA. See further below at II.C.
25
Sections 1(i)(a)(ii) and 1(i)(b) of the PAJA (n 18).
26
See for example, Ndoro v South African Football Association 2018 (5) SA 630 (GJ) in which the court
found that decision-making by private sporting bodies that regulate football without statutory
authority may be characterized as a the exercise of public powers capable of review under the
PAJA. The court held at paras 29–30 that, ‘[t]hese bodies, (FIFA, SAFA and the NSL) constitute an
institutional framework within which a comprehensive scheme of regulations is administered
and enforced. Each entity is a private organization. Neither the entities nor their rules derive
from public statutes. These associations and their relationships with their members are founded
upon contracts. But for all this, as a general matter, it is hard to escape the conclusion that what
these bodies do and the objects they strive after are public in nature’.
the PAJA.27 The litmus test for reviewability in South African law is thus whether
the power or function in question has a ‘public nature’, or (as was more loosely
put in Ndoro) whether these powers and functions ‘strive after’ public objects.28
Precisely what this entails is being determined incrementally (and sometimes
rather robustly) by South African courts. It suffices to note that they have moved
away from the narrow ‘governmental control’ test which emerged from Directory
Advertising Cost Cutters v Minister of Posts, Telecommunications and Broadcasting,29 to
a broader, more flexible enquiry. This was espoused in AAA Investments:30
It is true that no bright line can be drawn between ‘public’ functions and private
ordering. Courts in South Africa and England have long recognised that non-govern-
mental agencies may be tasked with a regulatory function which is public in character.
In determining whether rules are public in character, although made and implemented
by a non-governmental agency, several criteria are relevant: whether the rules apply
generally to the public or a section of the public; whether they are coercive in character
and effect; and whether they are related to a clear legislative framework and purpose.31
Once an action is found to fall within this broad class, it may be judicially reviewed
via one of the pathways which have emerged over the past 20 years of develop-
ment, and which we consider in turn.
3. THE PATHWAYS TO REVIEW

(a) The PAJA
The PAJA is the national legislation that was passed to give effect to the rights
contained in section 33 of the Constitution. Chaskalson CJ confirmed this in New
Clicks32 in which he stressed that, ‘[i]t was clearly intended to be, and in substance
is, a codification of these rights. It was required to cover the field and it purports to
do so’,33certainly at least in relation to the grounds of review.34 As a result, and in
line with the principle of constitutional subsidiarity,35 litigants seeking to vindicate
their administrative justice rights cannot ‘avoid the provisions of PAJA by going
behind it, and seek[ing] to rely on section 33(1) of the Constitution or the common
law’,36 or the more malleable principle of legality-cum-rationality. The PAJA is thus
the primary avenue to review, accessed via the definitional hurdle of ‘adminis-
trative action’, save where — courtesy of Gijima — the reviewing party is the organ
of state which carried out the impugned administrative action,37 in which case
27
Section 1(i)(b) of the PAJA (n 18) refers to ‘a natural or juristic person … when exercising a public
power or performing a public function in terms of an empowering provision’.
28
Ndoro (n 26) para 30.
29
1996 (3) SA 800 (T) at 810F–H.
30
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC) per O’Regan J.
31
Ibid para 119.
32
Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC).
33
Ibid para 95.
34
Currie (n 1) at 340.
35
See further below at II.C.
36
New Clicks (n 32) para 96.
37
Gijima (n 24) as affirmed in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited
2019 (4) SA 331 (CC). See the brief discussion on the practical implications of this judgment at II.C.
conduct which so qualifies within the meaning of the PAJA must nevertheless be
challenged via legality review.
During the transitional period, the constitutional incarnation of the animating
(if elusive) concept of administrative action was expressed by the Constitutional
Court in a significant trilogy of cases — Fedsure,38 SARFU39 and Pharmaceutical
Manufacturers40 — through a process of elimination premised on the separation of
powers. The different types of legislative and executive action that fell outside the
purview of administrative action under section 33, stood instead to be reviewed
under the flexible constitutional principle of legality — a crucial discovery to have
emerged from this jurisprudential triptych. The pre-PAJA construct of administra-
tive action within the meaning of section 33, through its relative simplicity, strikes
the right balance between giving proper effect to the right and ensuring not too
onerous a burden on the administration. In comparison, the legislative definition
of administrative action in section 1 of the PAJA is a complex and inaccessible
mishmash of constituent parts:
‘administrative action’ means any decision taken, or any failure to take a decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legisla-
tion; or
(b) a natural or juristic person, other than an organ of state, when exercising a public
power or performing a public function in terms of an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal
effect …41
This restrictive and overly-elaborate definition stands in stark contrast to its laconic,
yet substantively generous, underpinning right. It has been sharply criticised by
judges, practitioners and academics alike. The Supreme Court of Appeal in Grey’s
Marine42 famously lamented it for unduly limiting the meaning of administrative
action by ‘surrounding it with a palisade of qualifications’.43 A discussion of each
of these qualifications is beyond the purview of this chapter. Suffice it to highlight
the essence of the definition which was summarised as follows by Nugent J in an
apparent attempt to read-down the strictures of the PAJA here:
Administrative action is … in general terms, the conduct of the bureaucracy … in car-
rying out the daily functions of the State, which necessarily involves the application of
policy, usually after its translation into law, with direct and immediate consequences for
individuals or groups of individuals.44
38
Fedsure Life Assurance v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC).
39
President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC).
40
Pharmaceutical Manufacturers (n 2).
41
See s 1 of the PAJA (n 18).
42
Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) para 21.
43
Ibid ) para 21.
44
Ibid para 24.
‌ he PAJA further curtails the realm of administrative action through the enumer-
T
ation of various public powers and functions that are excluded from its scope.45 In
large part, these exclusions flow from the separation of powers such that the quin-
tessentially independent judicial function;46 the policy-laden executive function
(associated with a high measure of policy and discretion);47 and the original law-
making function of the legislature at all three levels of government are excluded.48
A decision ‘to institute or continue a prosecution’49 and a decision relating to the
appointment of a judicial officer by the Judicial Service Commission (JSC) are also
matters that are outside the PAJA’s remit. In addition, the Act specifically excludes50
any decision taken, or failure to take a decision, in terms of any provision of the
PAJA’s sister statute, the PAIA51 which creates its own system of special statutory
review. Finally, administrative action under the PAJA excludes52 decisions taken in
terms of section 4(1) (‘administrative action affecting the public’) which affords
administrators a choice of procedure to facilitate public involvement where ‘admin-
istrative action materially and adversely affects the rights of the public’. By virtue of
this exclusion, the administrator’s decision regarding the process adopted is final.53
Despite the diminished realm of administrative action under the PAJA, once
an applicant with the requisite standing to sue54 is through this gateway, the Act
offers a relatively rich array of review grounds which are primarily encompassed in
section 6 (‘Judicial review of administrative action’).The provisions of this section
‘divulge a clear purpose to codify the grounds of judicial review’55 that were avail-
able under the common law. This section gives precise legislative expression to
the constitutional rights to lawful, reasonable and procedurally fair adminis-
trative action. It is prefixed by section 5 which affords ‘any person whose rights
have been materially and adversely affected by administrative action’ the right to
45
Section 1(i)(aa)–(ii) of the PAJA (n 18).
46
Section 1(ee) of the PAJA (n 18).
47
Section 1(aa)–(cc) of the PAJA (n 18).
48
Section 1(dd) of the PAJA (n 18).
49
Section 1(ff) of the PAJA (n 18).
50
Section 1(hh) of the PAJA (n 18).
51
The PAIA (n 21).
52
Section 1(ii) of the PAJA (n 18).
53
New Clicks (n 32) para 132.
54
The test for standing has been considerably relaxed since the advent of the Interim Constitution,
and s 38 (‘Enforcement of Rights’) in the final Bill of Rights continues this model. The
Constitutional Court in Giant Concerts CC v Rinaldo Investments (Pty) Ltd 2013 (3) BCLR 251 (CC)
para 29 held that, ‘[t]he wide standing provisions of section 38 were not expressly enacted as
part of PAJA. Hoexter suggests that nothing much turns on this because ‘it seems clear that the
provisions of section 38 ought to be read into the statute’. This is correct.’
Of course, this clarity of reasoning has been muddled subsequent to Gijima which fails to
appreciate the distinction between rights bearers with rights enforcers (explicitly contemplated
under section 38 of the Constitution which affords standing to anyone acting ‘in the public
interest’) by holding that organs of state seeking to review their own decisions do not have
standing under the PAJA (but only under legality). See Gijima (n 24) para 38, ‘[t]he conclusion
that PAJA does not apply does not mean that an organ of state cannot apply for the review of its
own decision; it simply means that it cannot do so under PAJA’.
55
Bato Star (n 22) para 25.
request written reasons for that action ‘within 90 days after the date on which that
person became aware of the action or might reasonably have been expected to have
become aware of [it]’. Sections 3 and 4 of the PAJA give meaningful content to the
flexible prescripts of procedural fairness in respect of individuals and the public
respectively. Section 756 of the Act delineates the ‘[p]rocedure for judicial review’
and introduces two fairly stringent requirements for applicants. Firstly, it prescribes
a 180-day timeframe within which to institute judicial review proceedings,57 and
secondly, by virtue of section 7(2), such proceedings may be instituted only once all
internal remedies have been exhausted. In this respect, the PAJA has been criticised
for being ‘far more hostile to the right of access to court than the more nuanced
common law’,58 (which applies when the principle of legality is invoked) in terms
of which applicants must simply not delay unreasonably — something that organs
of state employing state ‘self-review’59 post-Gijima will no doubt exploit. Similarly,
although there is a duty to exhaust domestic remedies at common law, this obli-
gation has been enforced sparingly. In order to ameliorate the potential harshness
caused by these procedural hurdles in the PAJA, the courts have tended to read
down these sections to bring the Act in line with the more flexible common law.60
The remainder of the PAJA sets out a generous open-list of ‘[r]emedies in pro-
ceedings for judicial review’,61 and makes provision for the variation of the time-
frames for applying for reasons62 and for instituting a review action.63 It also sets
out ancillary matters including an authorisation to the Minister to make regu-
lations on an array of topics, such as ‘the establishment, duties and powers of
an advisory council to monitor the application of [the] … Act and to advise the
Minister’64 in an effort to improve the system of administrative justice in South
Africa. Regrettably, this has not yet come to pass. Such an umbrella body in the
nature of an Administrative Justice Advisory Council, would do much to reform
the system by making it more integrated and responsive and would likely go some
way to reducing the prominence of judicial review with its inherent inefficien-
cies.65 We turn now to canvass briefly key aspects of the development of the three
56
See the recently published Administrative Review Rules in Government Gazette No. 42740 of 4
October 2019.
57
Section 7(1) read with s 9(1) of the PAJA (n 18).
58
Plasket (n 5) at 38.
59
Buffalo City (n 37) paras 38 and 105.
60
For example, in relation to the duty to exhaust internal remedies, in the case of Koyabe v Minister
for Home Affairs 2010 (4) SA 327 (CC), the Court held (para 47) that, ‘an aggrieved party must
take reasonable steps to exhaust available internal remedies with a view to obtaining administra-
tive redress’, and furthermore, that the requirement should not be employed by administrators
to ‘frustrate the efforts of an aggrieved person or to shield the administrative process from judi-
cial scrutiny’ (para 38).
61
Section 8 of the PAJA (n 18) See the discussion on rremedies at III below.
62
Ibid at s 9(1)(a).
63
Ibid at s 9(1)(b).
64
Ibid at s 10(2).
65
See Cora Hoexter ‘The future of judicial review in South African administrative law’ (2000) 117
South African Law Journal 484 for a lucid analysis of these shortcomings.
primary grounds of review — lawfulness, reasonableness and procedural fairness —

under the PAJA, as expounded through case law.
(i) Lawfulness
Perhaps the most vital organising rationale of administrative law is the require-
ment of lawfulness, or legality, pursuant to which every incident of public power
must be sourced in, and carried out in exact accordance with, a lawful empowering
source. Quintessentially this would be legislation, but when it comes to a natural
or juristic person performing administrative action, the PAJA makes reference to
the broad notion of ‘an empowering provision’,66 which is indicative of the legisla-
tive recognition of the fact that public powers exercised by private bodies may be
sourced in a variety of instruments, such as contract and the rules of private organ-
isations. But when organs of state exercise public powers amounting to administra-
tive action, the PAJA makes it plain that they must be sourced in hard law; namely
legislation or a Constitution.67 Public power is thus not self-generating and in this
respect, the notion of lawfulness flows from the rule of law itself and lies at the
heart of our constitutional order.
In Fedsure,68 the Constitutional Court laid the foundations for the development
of the constitutional principle of legality. The Court held that, ‘[it is] central to
the conception of our constitutional order that the Legislature and Executive in
every sphere are constrained by the principle that they may exercise no power
and perform no function beyond that conferred upon them by law.’69 This pivotal
aspect of legality is the requirement of authority and it, in particular, has animated
the jurisprudence on legality which has centred on the rule against unlawful dele-
gation of power.
The rule against unlawful delegation flows from the Latin maxim, delegatus del-
egare non potest, in terms of which a person performing a delegated function may
not further delegate the performance of that function to another person or institu-
tion.70 This accords with a common-sense appreciation that the legislature chooses
the so-called right person for the job and this must be adhered to, save where there
is express or implied legislative authority to extend the power to someone else. The
PAJA gives expression to this rule by allowing the review of administrative action
where, ‘the administrator who took it … acted under a delegation of power which
66
This notion is broadly defined in s 1(vi) of the PAJA (n 18) to mean ‘a law, a rule of common law,
customary law, or an agreement, instrument or other documents in terms of which an adminis-
trative action was purportedly taken’.
67
Section 1(i)(a) of the PAJA (n 18). See on the question of the source of administrative power
when exercised by an organ of state, the intriguing set of judgments in South African National
Parks v MTO Forestry (Pty) Ltd 2018 (5) SA 177 (SCA). The dissent by Rogers AJA is compelling
for its fealty to the wording of the PAJA here and the rule of law’s requirement of legal certainty,
though some might criticise it as overly formalistic given the kind of substantive reasoning
called for by our transformative Constitution.
68
Fedsure (n 38).
69
Ibid para 58.
70
AAA Investments (n 30) para 126.
was not authorised by the empowering provision’.71 Practically, therefore, much

turns on an interpretation of the legislative scheme in issue.
The rule against unlawful delegation is thus subject to limitation in that it is
recognised that in the modern bureaucratic state, delegation (or, sub-delegation if
done not by an original legislator, but by an administrator with delegated power) is
necessary for the ‘daily practice of governance’.72 Section 238 of the Constitution
contemplates this inevitability:
An executive organ of state in any sphere of government may delegate any
power or function that is to be exercised or performed in terms of legislation to
any other executive organ of state, provided the delegation is consistent with the
legislation in terms of which the power is exercised or the function performed.73
The courts have, in allowing exceptions to the general rule that delegated power
must be exercised by the administrator on which it is conferred, formulated open-
list criteria to determine whether a delegation is acceptable. These were elucidated
in AAA Investments:
The character of the original delegation; the extent of the delegation of the delegated
power; the extent to which the original delegee continues to review the exercise of the
delegated power; considerations of practicality and effectiveness; and the identity of the
institutions or persons by whom and to whom power is delegated.74
The other two broad requirements of legality are what have been termed in the lit-
erature and case law as: jurisdiction and abuse of discretion. Jurisdiction is, in essence,
the requirement that administrators remain within the substantive and procedural
bounds of their powers and do not misconstrue them. Abuse of discretion is an
umbrella ground which covers the field when it comes to bad decision-making and
has been fleshed out in some detail in the PAJA. In this respect, the Act gives statu-
tory form to most of the common-law constraints on the exercise of discretionary
powers. It includes, for example, the requirement that administrative action not
be taken: ‘for an ulterior purpose or motive’;75 ‘because irrelevant considerations
were taken into account or relevant considerations were not considered’;76 ‘in bad
faith’;77 and ‘arbitrarily or capriciously’78 . As these manifestations of abuse of dis-
cretion should make clear, in practice this aspect of lawfulness tends to overlap
with the more malleable notion of reasonableness.
The first basis on which a court can review administrative action for want of juris-
diction is where an administrator interprets a legislative provision wrongly, even
if inadvertently. Such an incorrect interpretation typically prevents administrators
from appreciating the true nature and ambit of their powers and thus leads to them
71
Section 6(2)(1)(ii) of the PAJA (n 18).
72
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 54.
73
Section 238(a) of the Constitution (n 8).
74
AAA Investments (n 30) para 127.
75
Section 6(2)(e)(ii) of the PAJA (n 18) .
76
Ibid at s 6(2)(e)(iii).
77
Ibid at s 6(2)(e)(v).
78
Ibid at s 6(2)(e)(vi).
exercise their discretion improperly. This review ground is encapsulated as follows

in the PAJA: ‘the action was materially influenced by an error of law’.79 Given the
review/appeal distinction (if somewhat tenuous today), the courts are guided in the
interrogation of these errors by factors such as the nature of the power or function,
and the materiality of the error. Thus, the courts will more readily review and set
aside a decision on the basis of an error of law where the function in question is of
a purely judicial nature (rather than say, a policy-laden or political nature), lacks
a strong discretionary component, and was exercised pursuant to an error that is
material or fundamental in nature.80 Materiality rightly features as the touchstone
in the enquiry and can be explained with reference to the ‘but for’ test: but for the
error, the particular decision would not have been made thereby rendering the
error material. Put differently, where the same outcome would have been reached,
‘even on a correct interpretation of the statutory criterion’,81 the error of law could
not have been material and so would not be reviewable on this basis.
The second overarching basis on which South African courts review adminis-
trative action for want of jurisdiction is that of ‘material mistake of fact’.82 Pepcor
affirmed this ground of review in administrative law — notwithstanding the PAJA’s
failure to include it expressly — and has been hailed as a watershed case for this
development:83
In my view a material mistake of fact should be a basis upon which a court can review an
administrative decision. If legislation has empowered a functionary to make a decision,
in the public interest, the decision should be made on the material facts which should
have been available for the decision properly to be made. And if a decision has been
made in ignorance of facts material to the decision and which therefore should have
been before the functionary, the decision should … be reviewable at the suit of inter alios
the functionary who made it — even although the functionary may have been guilty of
negligence and even where a person who is not guilty of fraudulent conduct has bene-
fited by the decision.84
Courtesy of Pepcor, administrative decisions which are based on fundamentally
flawed premises,85 may be reviewed and set aside on this basis, notwithstanding
the judicial assessment inevitably encroaching somewhat into the realm of the
merits.
The more innocuous jurisdictional infractions typically manifest where an
administrator fails to follow a prescribed procedure or makes a decision in breach
79
Ibid at s 6(2)(d).
80
These were the factors laid down in the seminal case of Hira v Booysen 1992 (4) SA 69 (A) at 93–4.
81
Ibid.
82
Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA).
83
See Hoexter (n 20) at 305 where she notes that, ‘for all its talk of the distinction between appeal and
review, Pepcor represents a revolution in our administrative law’.
84
Ibid para 47.
85
See Mabethu v MEC Social Development, Eastern Cape Government [2006] ZAECHC 68 para 7, ‘[t]
here can be no talk of a just administrative action if it is based upon a fundamentally wrong
premise.’
of a substantive condition precedent, such as the formulation of an opinion86 as to

the existence of a certain state of affairs. In these instances, the legislation stipulates
so-called ‘jurisdictional facts’ which must be present for the powers in question to
be exercised lawfully. To this end, they are jurisdictional prerequisites: only if A
is present, may the administrator do B. Where these are not met, administrators
end up inflating their jurisdiction by accumulating further powers for themselves
beyond that which the empowering legislation contemplates, and thereby acting
unlawfully. Our case law is replete with examples of non-compliance with statu-
tory prerequisites; particularly in the vexed context of procurement and the matter
of tender conditions. Again, our courts have centred the enquiry on materiality:
The proper approach is to establish, factually, whether an irregularity occurred. Then the
irregularity must be legally evaluated to determine whether it amounts to a ground of
review under PAJA. This legal evaluation must, where appropriate, take into account the
materiality of any deviance from legal requirements, by linking the question of compli-
ance to the purpose of the provision, before concluding that a review ground under PAJA
has been established.87
Suffice it to note that when it comes to scrutinising (non-)compliance with jurisdic-
tional facts, such as a condition of tender, ‘the materiality of compliance with legal
requirements depends on the extent to which the purpose of the requirements is
attained’.88
(ii) Reasonableness
Reasonableness has enjoyed prominence as an independent ground of review in
administrative law since the dawn of democracy. Under the Interim Constitution it
manifested in a purportedly diluted form termed, ‘justifiability’, though in practice,
this was largely accepted to be ‘code for the broader notion of reasonableness’.89 This
‘broader’ notion was given rightful recognition in section 33 of the Constitution
which requires simply that administrative action be ‘reasonable’. Despite this clear
and express constitutional imprimatur, this ground remains a contentious basis
for review. This is because it inevitably draws the courts into that awkward space
between review and appeal by requiring some assessment of the merits of admin-
istrative decisions. In applying the reasonableness standard the courts thus have
to fulfil the unenviable task of striking the right balance between ensuring proper
judicial oversight and simultaneous respect for the separation of powers. The South
86
Note that since Walele v City of Cape Town 2008 (6) SA 129 (CC) all of these ‘subjective substantive
jurisdictional facts’ require an objective basis to be justifiable:
In the past, when reasonableness was not taken as a self-standing ground for review, the City’s
ipse dixit could have been adequate. But that is no longer the position in our law. More is now
required if the decision-maker’s opinion is challenged on the basis that the subjective precon-
dition did not exist. The decision-maker must now show that the subjective opinion it relied
on for exercising power was based on reasonable grounds. (para 60).
87
Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social
Security Agency 2014 (1) SA 604 (CC) (AllPay I ) para 28.
88
Ibid para 22.
89
Cora Hoexter ‘The principle of legality in South African administrative law’ (2004) 3 Macquarie
Law Journal 165 at 172.
African courts have employed the concept of deference-as-respect,90 with its twin
notion of variability, which emphasises the need to let the context guide the degree
of judicial scrutiny, to strike this delicate balance and cement the place of reasona-
bleness review in our constitutional order.
It is by now fairly widely accepted in our jurisprudence that ‘rationality plus
(at least) proportionality equals reasonableness’.91 These concepts — despite over-
lapping and both flowing from the animating constitutional principle of account-
ability — are distinct and thus invoke different degrees of judicial scrutiny. It is
perhaps for this reason that rationality is given expression separately in the PAJA,
and lucidly and rather extensively so, despite being the so-called minimal consti-
tutional threshold requirement. Rationality under the PAJA demands that admin-
istrative action be rationally connected to:
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator.92
Reasonableness, on the other hand, is rather clumsily and unhelpfully described
in the PAJA,93 but our courts have given careful expression to it through its pro-
portionality component which essentially requires a balancing analysis aimed
at determining whether the means chosen by an administrator justify the ends
pursued, all things considered. The Court in Bato Star set out factors to guide the
determination of what constitutes a reasonable decision in a given case:
[T]he nature of the decision, the identity and expertise of the decision-maker, the range
of factors relevant to the decision, the reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on the lives and well-being
of those affected.94
Reasonableness arguably remains a controversial addition to the grounds of review
in administrative law, but for what it is worth, this flexible review ground and its
apparently less threatening counterpart of rationality increasingly serve as vital
safeguards against the abuse of public power.95
90
As endorsed by the Constitutional Court in Bato Star (n 22) para 46. For a recent critique of the
notion of ‘deference’, see Clive Plasket ‘Judicial review, administrative power and deference: A
view from the bench’ (2018) 135 South African Law Journal 502 and Malcolm Wallis ‘Do We Need
Deference’ (2018) 1 South African Judicial Education Journal 97.
91
Corder (n 7) at 443.
92
Section 6(2)(f)(ii) of the PAJA (n 18).
93
Ibid at s 6(2)(h) which gives a ‘court or tribunal … the power to judicially review an adminis-
trative action if the exercise of the power or the performance of the function authorised by the
empowering provision, in pursuance of which the administrative action was purportedly taken,
is so unreasonable that no reasonable person could have so exercised the power or performed the
function.’
94
Bato Star (n 22) para 45.
95
We deal with this point in greater detail below at II.C.
(iii) Procedural fairness

Procedural fairness, much like reasonableness, places context at the heart of the
enquiry: its prescripts are applied variably based on the facts of a case. This mal-
leable ground of review in the ‘new South African administrative law’ in large
part remains true to its age-old roots: it gives meaningful effect to the tenets of
audi alteram partem (let the other side be heard) and nemo iudex in sua causa (the
rule against bias). The PAJA gives expression to these tenets and develops them
even further. Section 3(1) states that, ‘[a]dministrative action which materially and
adversely affects the rights or legitimate expectations of any person must be proce-
durally fair.’ Section 3(2)(a) in turn sets out the minimum requirements of proce-
dural fairness under the PAJA which include:
(a)
adequate notice of the nature and purpose of the proposed administrative action;
(b)
a reasonable opportunity to make representations;
(c)
a clear statement of the administrative action;
(d)
adequate notice of any right of review or internal appeal … and
(e)
adequate notice of the right to request reasons in terms of section 5.
Section 3(3) contains a trio of discretionary ingredients which enhance the right
to procedurally fair administrative action: (i) the right to legal representation ‘in
serious or complex cases’,96 (ii) the right to ‘present and dispute information and
arguments’,97 and (iii) the right to ‘appear in person’.98 Perhaps the most note-
worthy innovation of the PAJA is section 4 which pertains to ‘[a]dministrative
action affecting the public’. It gives expression to the constitutional commitment
to a form of participatory democracy premised on the values of ‘accountability,
responsiveness and openness’.99 Under section 4, whenever administrative action
‘materially and adversely affects the rights of the public’ an administrator must
give effect to the right to procedurally fair administrative action by electing one
of the following: holding a public inquiry;100 following a notice and comment pro-
cedure;101 employing a hybrid of the two;102 following ‘a procedure which is fair
but different’,103 or alternatively, by adopting ‘another appropriate procedure’.104
Importantly, the administrator’s choice in this regard, including a failure to decide,
does not constitute administrative action under the Act’s cumbersome definition,
and thus cannot be subject to judicial review.105
Another feature of this unfortunate definition worth highlighting is its anom-
alous failure to include a reference to legitimate expectations which, somewhat
incongruously, nonetheless expressly invoke the requirements of procedural fairness
96
Section 3(3)(a) of the PAJA (n 18).
97
Ibid at s 3(3)(b).
98
Ibid at s 3(3)(c).
99
Section 1(d) of the Constitution (n 8).
100
Section 4(1)(a) of the PAJA (n 18).
101
Ibid at s 4(1)(b).
102
Ibid at s 4(1)(c).
103
Ibid at s 4(1)(d).
104
Ibid at s 4(1)(e).
105
Ibid at s 1(i)(ii).
under section 3. Our courts have read-down this legislative anomaly, employing
the standard interpretive technique of letting the specific inform the general. Thus
in Walele the Court held that notwithstanding the deficit of the section 1 defi-
nition in this regard, it should nonetheless be assumed that, ‘s[ection] 3 of PAJA
confers the right to procedural fairness also on persons whose legitimate expecta-
tions are materially and adversely affected by an administrative decision … [for]
applying the definition to s[ection] 3 would lead to an incongruity or absurdity not
intended by Parliament’.106 The doctrine thus continues to be an important aspect
of natural justice under the Act as informed by the ‘well-established principles’ of
the common law.
On the subject of these principles, the doctrine of legitimate expectation is an
English law import that gained prominence in South African law following the
1989 benchmark judgment of Corbett CJ in Traub.107 Broadly speaking, it may be
applied whenever a person enjoys a privilege or benefit and stands to suffer an
injustice if that privilege or benefit is denied in the absence of a hearing. Such
an expectation may arise from reasonable reliance on a promise made by a deci-
sion-maker and/or a regular practice which is reasonably expected to continue,
and/or from other equivalent administrative conduct, and while the expectation
itself may have both a procedural and an interrelated substantive component, 108
the relief afforded by the doctrine in South African administrative law remains
within the bounds of procedure;109 namely a fair hearing by an impartial deci-
sion-maker. In this sense, we have not kept pace with developments in England
where the courts have moved ‘from tentative recognition of the possibility of sub-
stantive protection to full acceptance of the idea’.110 Hoexter has remarked that
KZN Joint Liaison Committee,111 could well ‘have been the case to introduce this
device into our law’, but instead what emerges from it is an apparent additional
pathway to review.
106
Walele (n 86) para 37.
107
Administrator, Transvaal v Traub 1989 (4) SA 731 (A).
108
See Walele (n 86) paras 35–7, for a useful exposition of the doctrine in South African law.
The case of National Director of Public Prosecutions v Phillips 2002 (4) SA 60 (W) para 28 also
provides a clear (if more restrictive) exposition of the requirements to found a legitimate
expectation:
The law does not protect every expectation but only those which are ‘legitimate’. The require-
ments for legitimacy of the expectation, include the following: (i) The representation under-
lying the expectation must be ‘clear, unambiguous and devoid of relevant qualification’ … (ii)
The expectation must be reasonable … (iii) The representation must have been induced by the
decision-maker; and (iv) The representation must be one which it was competent and lawful
for the decision-maker to make without which the reliance cannot be legitimate.
109
See Hoexter (n 20) at 426–436.
110
Ibid at 427.
111
KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, Kwazulu-Natal 2013 (4) SA
262 (CC).
4. U
NCONSCIONABLE CONDUCT WHEN MEASURED AGAINST THE
CONSTITUTIONAL STANDARDS OF RELIANCE, ACCOUNTABILITY
AND RATIONALITY
A full analysis of the intriguing set of judgments in KZN Joint Liaison Committee is
beyond the scope of this chapter; however the ultimate effect of this case deserves
some attention insofar as it has seemingly led to the development of yet another
pathway to review and public-law cause of action; namely, ‘the constitutional prin-
ciple of unconscionable state conduct that is in breach of reliance, accountability
and rationality’.112 The case of KZN concerned a unilateral decision by the KZN pro-
vincial department of education to reduce school subsidies to independent schools
with retrospective effect, and after the date for payment of the first tranche of
subsidies had already passed.113 The applicant failed to frame the cause of action as
a breach of administrative justice and focused (if unadvisedly) instead on the pur-
ported contractual nature of the promise,114 and the amicus curiae made compelling
submissions for founding a legitimate expectation (given both a promise and a past
practice in relation to the subsidy payment)115 which could conceivably have pro-
vided the court with the impetus to recognise the protection of substantive expec-
tations. Yet, the Court saw fit to throw the applicant a different kind of ‘public-law
lifeline’116 — one not based on a breach of the administrative justice right, nor on
what Cameron J recognised as an enforceable ‘bilateral agreement’,117 but rather
a lifeline founded on ‘broader public law and regulatory grounds’.118 Buttressed
by the constitutional right to basic education (in section 29), the majority held
that, ‘[i]t seems both legally and constitutionally unconscionable that, more than a
month after the first tranche of the promised subsidy had already fallen due under
the national Norms and the provincial regulation, the Department should peremp-
torily reduce it’.119
The ‘unconscionability’ in the circumstances could be attributed to the stand-
ards of ‘reliance, accountability and rationality’. 120 First, the schools had budg-
eted for a whole year in reliance on the notice and could not adjust their future
outlays in relation to the tranche that had already fallen due.121 Second, consti-
tutional accountability and responsiveness demand that government decisions
which impact those to whom undertakings have already been made, be announced
expeditiously.122 Third, government officials must act rationally in dealing with
112
Pretorius and Another v Transport Pension Fund 2019 (2) SA 37 (CC) para 39.
113
KwaZulu-Natal Joint Liaison Committee (n 111) para 62.
114
Ibid para 58.
115
Ibid para 27.
116
Cora Hoexter ‘The Enforcement of an Official Promise: Form, Substance and the Constitutional
Court’ (2015) 132 South African Law Journal 207 at 219.
117
118
Ibid.
119
Ibid.
120
Ibid para 63.
121
Ibid.
122
Ibid para 64.
those who act in reliance on their undertakings and ‘[r]evoking a promise when the
time for its fulfilment has already expired does not constitute rational treatment of
those affected by it.’123 The applicant was therefore able to establish an entitlement
to actual payment of the subsidy undertaking set out in the 2008 notice up to 1
April 2009.124
The application of the standards of reliance, accountability and ‘reliance-based
rationality’125 to the factual matrix in KZN, considered in light of the fact that
‘there could be no overriding public interest in the ex post facto retraction of the
promise’,126 essentially birthed a new pathway to review and cause of action in our
system of public law. This has subsequently been endorsed as such in Pretorius,127
where the Constitutional Court recognised KZN Joint Liaison Committee as ‘authority
for the proposition that a separate claim may lie, based on the same conduct, even
though that conduct might also amount to administrative action under PAJA’.128
In Pretorius, the applicants’ claim of unconscionable state conduct (when measured
against the standards of reliance, accountability and rationality), was similarly but-
tressed with reference to a constitutional right; namely the right to social security
under section 27(1)(c),and the ‘special legislative protection of pensioners’.129 The
Court held that, ‘[t]he appeal against the upholding of the exception against the
unlawful state action claim must … succeed’ despite noting the dangers of our
proliferating pathways to review and the knock-on effect on the principle of sub-
sidiarity and concomitantly increasing invisibility of the PAJA.130 This new cause
of action has however been embraced by litigants and was raised head-on in the
context of a failure to build a promised school in the case of Mpungose Traditional
Council,131 under the heading, ‘the decision was an unconscionable breach of prom-
ise’.132 The court summarised the principle thus: ‘a promise, seriously and lawfully
made by a public official, may be enforceable at public law by those to whom it was
made if it would be ‘… both legally and constitutionally unconscionable …’ for the
public official to renege on the promise’.133
5. DIRECT RELIANCE ON SECTION 33 OF THE CONSTITUTION

Despite the current judicial trend to propagate pathways, our courts have previ-
ously reaffirmed on numerous occasions that, ‘[w]hen the legislature enacted the
PAJA, it sought to codify extensively [the] grounds of review’.134 Applications for
123
Ibid para 65.
124
Ibid para 69.
125
Hoexter (n 116) at 201.
126
127
Pretorius (n 112).
128
Ibid para 36.
129
Ibid para 39.
130
Ibid paras 45 and 37.
131
Mpungose Traditional Council v MEC for Education, KZN Province [2019] 3 All SA 817 (KZP).
132
Ibid para 121.
133
Ibid para 127.
134
Walele (n 108) para 29.
review of administrative action must thus ‘ordinarily be based on the PAJA’, 135
which is the primary pathway to review, in line with the constitutional principle
of subsidiarity and its related principle of avoidance.136 Direct review under section
33 is, as a result, meant to be137 available only in limited instances. The possibilities
for legitimate direct review are as follows. First, while the PAJA serves as the sword
that enables citizens to hold the administration to account, section 33 ‘acts as a
shield against laws, policies and practices that undermine administrative justice’.138
Thus, in Zondi,139 the Constitutional Court tested the validity of the provisions of
the Pound Ordinance140 directly against section 33 given that, when legislation is
challenged on the basis of a conflict with the administrative justice right, that right
itself must be the benchmark against which the conflict is assessed, not the PAJA.141
Second, section 33 plays an animating role in informing the interpretation of
the PAJA and keeping it within constitutional bounds. Last, direct recourse may be
had to section 33 to challenge the constitutionality of the PAJA itself — a challenge
that was predicted to eventuate given, for example, the severe curtailment of the
scope of administrative action under the Act, though today it seems unlikely given
that so much water has flowed under the PAJA bridge and led to the emergence of
other more user-friendly roadways to review. On this note, despite the theoretical
simplicity of this threefold function of section 33 (when invoked directly), the case
law reveals a frequently misplaced reliance on the section.142 This appears to stem
in large part from the complexity of the conceptual hurdles in the PAJA (notably
the definition of administrative action) which the courts (and litigants) tend to
bypass in favour of direct recourse to section 33, the common law, the flexible
supra constitutional ‘principle of legality and rationality’,143 and now the constitu-
tional principle of unconscionable state conduct as espoused in KZN Joint Liaison
Committee.144
135
Ibid.
136
This latter principle was first enunciated in S v Mhlungu1995 (3) SA 867 (CC) para 59, ‘where it
is possible to decide any case … without reaching a constitutional issue, that is the course that
should be followed’; hence norms of greater specificity set out in legislation or the common law,
should be resorted to before direct reliance is placed on a constitutional provision.
137
We say this given the judicial tendency to avoid the PAJA and rely directly on either s 33 or the
principle of legality in instances. Ngcobo J is notorious for doing this side-stepping. See, for
example, Hoexter (n 116) at 221.
138
Plasket (n 5) at 31.
139
Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC).
140
The Pound Ordinance 32 of 1947.
141
Ibid para 99.
142
For example, in Mafongosi v United Democratic Movement 2002 (5) SA 567 (Tk) para 12 — a case
which concerned disciplinary decisions taken by a political party against the applicants — Jafta
AJP reasoned that, ‘it is unnecessary for me to express any opinion on whether the provisions of
s 3 of PAJA apply to the present case … In my view, the matter can be disposed of sufficiently by
having recourse to the provisions of s 33 of the Constitution …’.
143
Masethla v President of the Republic of South Africa 2008 (1) SA 566 (CC) para 42 and 77–8.
144
See Hoexter (n 116) at 223 where she notes that this judgment ‘may be somewhat subversive of
the PAJA’.
6. THE CONSTITUTIONAL PRINCIPLE OF LEGALITY-CUM-RATIONALITY

Review under the PAJA and section 33 are confined to those exercises of public
power that amount to administrative action. The limiting and troublesome defi-
nition of this concept in the PAJA excludes from review many instances of public
power which have hitherto been reviewable under the common law. The principle
of legality, an aspect of the founding constitutional value of the rule of law,145
emerged in response to this. Despite its pre-eminence in our constitutional order,
this principle is a venerable concept which originated in the royal prerogative. It is
thus familiar to South African administrative law. Its function today is primarily
that of constitutional safety net to enable the review of the exercise of public
power — t ypically in the form of executive action — that falls outside the relatively
narrow realm of ‘administrative action’ under the PAJA.
This broader approach to the review of the exercise of public power, using the
supple principle of legality and particularly its requirement of rationality, has bur-
geoned to accommodate the PAJA’s deficit and to address state excesses more gener-
ally. In this latter respect, it has proven to be an invaluable device to curb the cor-
ruption endemic in South Africa. Following a string of judgments handed down by
the Constitutional Court and Supreme Court of Appeal, the principle now covers
all the quintessential administrative law review grounds to some extent,146 and has
thus been dubbed, ‘administrative law by another name’.147 A full discussion of
the dangers flowing from this otherwise positive development is beyond the scope
of this Chapter.148 Suffice it to note that it has had the consequence of side-lining
the PAJA, robbing judicial review of predictable structure, and placing extensive
power in judicial hands; often in a manner worrisome from a separation-of-powers
perspective.
The temptation of legality’s suppleness and more forgiving procedural require-
ments,149 has also had the disconcerting and disingenuous practical result of ena-
bling organs of state to rest on their laurels and then invoke legality to review
their own decisions (seemingly when they no longer suit) without being hit by the
PAJA’s restrictive time-bar provisions. This is epitomised by the notorious case of
Gijima,150 which has been alluded to above, and pursuant to which we now have an
additional doorway to legality review, but now bizarrely for administrative action
proper when challenged by the organ of state which took it.
In a curious piece of judicial reasoning, the Constitutional Court held that, ‘no
choice is available to an organ of state wanting to have its own decision reviewed;
PAJA is simply not available to it’ and instead the principle of legality is in such
145
Section 1(c) of the Constitution (n 8).
146
See Lauren Kohn ‘The burgeoning constitutional requirement of rationality and the separation
of powers: Has rationality review gone too far?’ (2013) 130 SALJ 802.
147
Clive Plasket The fundamental right to just administrative action: Judicial review of administrative
action in the democratic South Africa (unpublished PhD thesis, Rhodes University, 2002) at 164.
148
See Kohn (n 146).
149
150
Gijima (n 24).
instances, the order of the day.151 This case has been the subject of vociferous aca-
demic criticism152 and indeed, some members of the Constitutional Court bench
are themselves ex post facto doubting its correctness.153 For us, the most discon-
certing aspect of the judgment (which rests, as it does, on a narrow and dated
approach to constitutional rights entirely out of step with the actual wording of
section 38 of the Constitution and the Court’s own jurisprudence) is that it creates
the following anomaly: if action A (administrative action as defined) is reviewed
by an affected party other than the organ of state that took it, it is subject to the
stricter procedural requirements of the PAJA and the Act’s more searching substan-
tive review grounds. But if the same action A is the subject of Gijimaesque self ‘state
review’, it will be subjected to an overall lower standard of substantive scrutiny154
and looser procedural requirements. In other words, the outcome in these cases —
both flowing from a challenge to the same action A — depends on the identity of
the party bringing the review. This nonsensical result of Gijima in turn adds to the
uncertainty and unpredictability of our administrative law with its idiosyncratic
profusion of pathways, causes of action and variable grounds of review depending
on how the claim is couched.
We have yet to see how the courts are going to grapple with this anomaly and
the divergent standards in the context of state self-review under legality. For present
purposes we thus highlight briefly several key cases in which legality-cum-ration-
ality review proper (as the backstop for reviewing public power outside the ambit
of administrative action) has been invoked to apply the prescripts of lawfulness,
rationality, procedural fairness (or ‘procedural rationality’155) and the duty to give
reasons, to non-‘administrative action’.
151
Ibid paras 37–38.
152
See for example, Mitchell de Beer ‘A new role for the Principle of Legality in Administrative Law’
(2018) 135 South African Law Journal 613, Leo Boonzaier ‘A decision to Undo’ (2018) 135 South
African Law Journal 642, and Geo Quinot & Elsabe van der Sijde ‘Opening at the close: Clarity
from the constitutional court on the legal cause of action and regulatory framework for an organ
of state seeking to review its own decisions?’ (2019) Tydskrif vir die Suid-Afrikaanse Reg 324.
153
See the dissent in Buffalo City (n 37) para 112 where Cameron and Froneman JJ note that,
‘The reasoning this Court advanced in Gijima for choosing legality as the appropriate pathway
for state institutions’ self-review has not found universal favour. While its treatment of
standing and delay has been the immediate target of this criticism, Gijima is also accused of
aggravating the bifurcation or ‘parallelism’ in our administrative law between PAJA review as
opposed to legality review. This has been a persisting source of academic concern. It may in
due course become necessary to reconsider whether the legality review pathway chosen in
Gijima withstands the test of time. Now is not that time.’
154
Hoexter (n 116) at 220 rightly notes that the content of legality ‘in a particular case is not nearly
as fixed or certain as that of the PAJA. The more basic requirements of legality and rationality
apply across the board, but it may not be so easy to predict when the more advanced require-
ments of procedural fairness and reason-giving will apply.’
155
This term, ‘constitutionally-inspired procedural rationality principle’, has emerged in more
recent case law. See for example, Electronic Media Network Limited v e.tv (Pty) Limited 2017 (9)
BCLR 1108 (CC) para 66.
(a) Legality and rationality

At the heart of the principle of legality is the requirement of lawfulness, developed
through three earlier cases of great importance. First came Fedsure, which dealt
with the power of a local authority to make budgetary resolutions, and in which
the Constitutional Court emphasised that, ‘the exercise of public power is only
legitimate where lawful’.156 A year later, in the second case in the seminal trio,157 the
SARFU judgment, the Constitutional Court subjected President Mandela’s decision
to appoint a commission of inquiry under section 84(2)(f) of the Constitution, to
review, under the principle of legality on the basis of lawfulness. In particular, the
court held that, ‘as is implicit in the Constitution, the President must act in good
faith and must not misconstrue [his] powers’. The last instalment in the trio intro-
duced the requirement of rationality — the purportedly most minimally invasive
constitutional constraint and an aspect of the broader notion of reasonableness.
In Pharmaceutical Manufacturers,158 President Mandela, acting in good faith, on the
mistaken counsel of officials in the Department of Health, had brought an Act into
force in the absence of the requisite subordinate legislation. The Constitutional
Court found this decision to be irrational in the circumstances since the President,
‘through no fault of his own’, failed to exercise the public power in question ‘in
an objectively rational manner’.159 The Court laid the foundations for rationality
review under the principle of legality by formulating the requirement as follows:
It is a requirement of the rule of law that the exercise of public power by the Executive
and other functionaries should not be arbitrary. Decisions must be rationally related to
the purpose for which the power was given, otherwise they are in effect arbitrary and
inconsistent with this requirement. It follows that in order to pass constitutional scru-
tiny the exercise of public power by the Executive and other functionaries must, at least,
comply with this requirement.160
‌ his ‘minimum threshold requirement’161 has in subsequent cases been stretched162
T
to necessitate a more searching analysis akin to full-blown proportionality, not-
withstanding judicial insistence that it remains mere rationality and thus does not
offend the separation of powers. The significant Constitutional Court judgment
of Democratic Alliance v President of the Republic of South Africa163 illustrates this
development. This case brought a close to the controversial sequence of events sur-
rounding the forced resignation of Mr Pikoli from his office as National Director
of Public Prosecutions (NDPP) and President Zuma’s appointment of Mr Simelane
in his stead, despite the latter’s background which strongly pointed to his lack of
fitness for the office. The Court, in reviewing this decision under the principle of
156
Fedsure (n 38) para 56.
157
See the discussion at A above.
158
Pharmaceutical Manufacturers (n 2).
159
Ibid para 89.
160
Ibid para 85.
161
Ibid para 90.
162
Kohn (n 146).
163
(122/11) [2012] ZACC 24.
legality, found it to be plainly irrational and thus set it aside.164 In doing so, the
Court developed the rationality requirement to cover rationality in process as well
as outcome,165 thereby indirectly affirming the unavoidable substantive ingredient
to review under the Constitution and planting the seed for what has now come to
be known as ‘procedural rationality’:
The decision of the President as Head of the National Executive can be successfully chal-
lenged [even if] only … a step in the process [as a whole] bears no rational relation to the
purpose for which the power is conferred and the absence of this connection colours the
process as a whole and hence the ultimate decision with irrationality.166
(b) Procedural fairness

Albutt v Centre for the Study of Violence and Reconciliation,167 established natural
justice and in particular, its audi requirement as part of the principle of legality,
but only strictly in relation to the particular exercise of public power in question.
This case concerned an executive decision of President Mbeki who, acting under
section 84(2)(j) of the Constitution, sought to introduce a special dispensation to
enable political prisoners to apply for a presidential pardon. The dispensation was
aimed at addressing the ‘unfinished business’168 of the Truth and Reconciliation
Commission (TRC) but despite its apparently laudable aims, none of the relevant
documentation made reference to the victims of the crimes and in particular their
right to be heard in the process.169 The Constitutional Court thus had to decide
whether the tenets of procedural fairness applied and, if so, whether they had
been breached. Building on the foundations laid in his judgment in Masethla,170
as well as the findings in Chonco,171 Ngcobo CJ held this to be the case, although
he strictly, and explicitly, limited audi as an element of rationality to the unique
circumstances in question:172
[T]he requirement to afford the victims a hearing is implicit, if not explicit, in the very
specific features of the special dispensation process. Indeed, the context-specific features
… and its objectives of national unity and national reconciliation, require, as a matter
of rationality, that the victims must be given the opportunity to be heard in order to
determine the facts on which pardons are based.173
164
Ibid paras 86–9 and 95.
165
Ibid para 34.
166
Ibid para 37. Emphasis added.
167
2010 (3) SA 293 (CC).
168
Ibid para 4.
169
Ibid para 7.
170
Masethla v President of the Republic of South Africa 2008 (1) SA 566 (CC).
171
Minister for Justice and Constitutional Development v Chonco 2010 (4) SA 82 (CC) para 30, where the
court held that the President’s power to confer pardons ‘entails a corresponding right to have a
pardon application considered and decided upon rationally, in good faith, in accordance with
the principle of legality, diligently and without delay’.
172
Albutt (n 167) paras 75–6.
173
Ibid para 72.
(c) The duty to give reasons

In Judicial Service Commission v The Cape Bar Council,174 the Supreme Court of Appeal
had to answer the question whether the rationality requirement under the prin-
ciple of legality entails a general duty to give reasons. This question arose pursuant
to the JSC’s refusal to produce reasons for its decision not to recommend any of
the qualified candidates for appointment to outstanding vacancies on the bench of
the Western Cape High Court, despite the fact that the shortlisted candidates were
strongly supported by the General Council of the Bar on the basis that they were ‘fit
and proper’ as contemplated by section 174(1) of the Constitution.175 In a strongly
worded unanimous judgment the court answered this question in the affirmative
and thereby established the duty to give reasons in respect of non-administrative
action. It held that ‘the JSC’s power to advise the President on the appointment of
judges of the High Court is derived from s 174(6) of the Constitution [and] … is [thus]
undoubtedly a public power’176 which must be exercised rationally and in accordance
with the constitutional values of transparency and accountability.177 As such, the
court held that, ‘as a matter of general principle’178 the JSC is ‘obliged to give reasons’
in deciding ‘whether or not to recommend candidates for judicial appointment’.179
‌In the spirit of our constitutional commitment to accountability, responsiveness
and openness, this general approach has recently been taken even further. In Helen
Suzman Foundation v Judicial Service Commission,180 the Constitutional Court, in a
strongly worded judgment that pays heed to the vital role of an independent judi-
ciary within a constitutional democracy,181 held that the JSC was bound to provide
an applicant seeking to review its actions with a full transcription of its private delib-
erations as part of the ‘record’ required to be disclosed under Rule 53 of the Uniform
Rules of Court which governs applications for review. The court noted that, ‘[t]he
JSC’s own practice of distilling reasons for a decision from the deliberations is indica-
tion enough that JSC deliberations are of relevance to the decisions. They clearly bear
on the lawfulness, rationality and procedural fairness of the decisions’.182
(d) Special statutory review

Although the PAJA is the generally applicable legislative standard, Parliament has
seen fit to enact specific laws in an array of fields (such as competition,183 consumer
174
(818/11) [2012] ZASCA 115.
175
Ibid at para 37–9; this was accepted as common cause between the parties.
176
Ibid at para 22.
177
Ibid at para 43.
178
Ibid at para 51.
179
Ibid at para 51.
180
[2018] ZACC 8.
181
Ibid paras 32–34.
182
Ibid para 24.
183
The Competition Act 89 of 1998 provides for the establishment of a Competition Commission,
inter alia, to investigate and control restrictive practices, abuse of dominance etc, as well as a
Competition Tribunal and a Competition Appeal Court to hear appeals from the Tribunal and
review its decisions.
protection,184 and labour relations185 ) which provide for analogous review regimes
in relation to particular matters which might otherwise invoke the requirements of
administrative justice under the PAJA. In such instances, special statutory review
operates as a fourth pathway to review either alongside the PAJA186 or, as is ordi-
narily the case, to its exclusion. An obvious example of the latter is the review
of decisions of information officers under the PAIA which are explicitly excluded
from the realm of administrative action.187 A less obvious, and indeed more contro-
versial example, arises in the employment context. Section 23 of the Constitution
provides for rights in regard to ‘labour relations’, which are given detailed effect
through the specialised legislative framework created by LRA,188 which in turn
incorporates administrative law principles such as the tenets of procedural fair-
ness. The LRA and the PAJA have seemingly not been able to coexist comfort-
ably in the public realm: ‘[t]he characterisation of powers exercised by a public
entity in its employment relations has been hotly debated in South Africa’.189 This
is because the courts have been distracted by the jurisdictional question that has
repeatedly arisen in this context: can these pathways be pursued as alternatives to
obtain relief, or must the specific legislation, based on the relevant constitutional
right, regulate the matter to the exclusion of the PAJA? This question arises because
employment decisions (such as dismissals) in the public sector tend to implicate
not only labour rights but also those of administrative justice.
‌The Constitutional Court seemed to have resolved this debate in the case of
Chirwa v Transnet Ltd,190 which concerned a challenge framed on administrative
law grounds to a dismissal in the public sector. The Court was at pains to distin-
guish191 the facts of the case from its predecessor, Fredericks v MEC for Education and
Training, Eastern Cape192 notwithstanding the fact that the issue in question was
clearly analogous.193 In Chirwa, the court framed the ‘central question’ as follows:
184
Section 85 of the Consumer Protection Act 68 of 2008 establishes a National Consumer
Commission as the specialised administrative tribunal tasked with, inter alia, ensuring compli-
ance and enforcement under the Act.
185
The Labour Relations Act 66 of 1995 (‘LRA’) created: the Commission for Conciliation, Mediation
and Arbitration (‘CCMA’) to resolve labour disputes and perform various administrative and
adjudicative functions; the Labour Court and the Labour Appeal Court, and thereby established
a comprehensive regulatory regime in the sphere of labour relations.
186
See Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC), which pertains to s 145 of the
LRA, and Hoexter’s (n 20) analysis of this case at 121 where she notes that Sidumo-type review,
which operates ‘alongside the PAJA … is not limited to the specific grounds listed in the relevant
statute … [but rather] full-scale administrative review is applied irrespective of the limits of the
grounds themselves’.
187
Section 1(i)(hh) of the PAJA (n 18).
188
The LRA (n 185).
189
190
2008 (4) SA 367.
191
Ibid para 58.
192
2002 (2) SA 693 (CC).
193
The court in Fredericks, para 40, held that, ‘there is no general jurisdiction afforded to the Labour
Court in employment matters, [thus] the jurisdiction of the High Court is not ousted by s 157(1)
simply because a dispute is one that falls within the overall sphere of labour relations.’
‘whether Parliament conferred the jurisdiction to determine the applicant’s case

upon the Labour Court and the other mechanisms established by the LRA, in such
a manner that it … exclude[s] the jurisdiction of the High Court’194 and thereby,
in addition, excludes relief on administrative law grounds. The Court held this to
be the case, despite the fact that Ms Chirwa founded her cause of action solely in
administrative law. Essentially, the court reasoned that the LRA is the ‘pre-eminent
legislation in labour matters’195 and creates a ‘one-stop-shop’ for all labour-related
disputes through an integrated system of specialised dispute resolution mecha-
nisms, forums and remedies. Furthermore, by virtue of section 157(1), where exclu-
sive jurisdiction over a matter is conferred upon the Labour Court by the LRA, the
jurisdiction of the High Court is ousted.196 Ms Chirwa was therefore not allowed
to pursue her case on administrative law grounds, for to do so would ‘relegate the
finely-tuned dispute resolution structures created by the LRA’197 which would in
turn lead to the creation of a ‘dual system of law’.198 This would have the unde-
sirable knock-on effect of encouraging forum-shopping and giving public-sector
employees an unfair advantage over those in the private sector.199
‌This decision was met with strongly expressed criticism200 which continued
until the Constitutional Court put a gloss on Chirwa’s finding in Gcaba v Minister
for Safety and Security.201 In essence, the Court in Gcaba affirmed that the system of
special statutory review under the LRA applies to the exclusion of the PAJA, unless
the conduct in question has a broad public impact and can thus be said to amount
to administrative action. Put differently:
Section 33 does not regulate the relationship between the State as employer and its
workers. When a grievance is raised by an employee relating to the conduct of the State
as employer and it has few or no direct implications or consequences for other citizens,
it does not constitute administrative action.202
‌ he default position in South African law is thus that the existence of a system
T
of special statutory review operates to the exclusion of review under the PAJA,
save where the offending conduct clearly constitutes administrative action — as
in the Sidumo-type situation203 or where the labour-related conduct has a ‘public
impact’ — in which case the applicant can ground his or her cause of action in
either regime.204
194
Chirwa (n 190) para 20.
195
Ibid para 50.
196
Ibid para 59.
197
Ibid para 65.
198
Ibid.
199
Ibid para 66.
200
See for example, Cora Hoexter ‘Clearing the intersection? Administrative law and labour law
in the Constitutional Court’ (2008) 1 Constitutional Court Review 209 and Halton Cheadle
‘Deconstructing Chirwa v Transnet’ (2009) 30 Industrial Law Journal 741.
201
2010 (1) SA 238 (CC).
202
Ibid para 64.
203
In Sidumo (n 186) the court concluded that the CCMA was engaged in administrative action and
thus subject to judicial review.
204
(e) The common law

In Pharmaceutical Manufacturers, the Constitutional Court pronounced that, ‘[t]
here are not two systems of law … [but] only one … [which] is shaped by the
Constitution … and all law, including the common law, derives its force from the
Constitution and is subject to constitutional control’.205 Since the advent of democ-
racy and the enactment of our comprehensive Bill of Rights, especially section 33,
the common law is thus no longer the mainspring of administrative law: it does not
have to do quite so much work. However, it certainly lives on and in fact continues
to play a fairly extensive role in our system of administrative justice. This role is
essentially fivefold.206
The first role is that which was originally intended for it: an interpretive, inform-
ative and supplementary role to guide the interpretation of the PAJA and section 33.
In Manong,207 the High Court highlighted the importance of this role, stating that
many of the concepts used in the PAJA, ‘require recourse to common-law jurispru-
dence’ in order to give meaning to them.208 The case of Premier of Mpumalanga209
provides a useful example. The Constitutional Court interpreted the concept
of legitimate expectation as used in section 24 of the Interim Constitution, by
drawing on the rich common-law jurisprudence on the subject. Second, particu-
larly given the loopholes in section 6(2) of the PAJA, the common law plays a gap-
filling role in respect of certain well-established grounds of review that have been
omitted from the Act. Thus, for example, the grounds of vagueness, abdication and
the no-fettering rule (also known as ‘rigidity’) — all well-known at common law–
continue to find direct application through section 6(2)(i) (the ‘catch-all ground’),
which also serves to enable further developments of the common law that can be
fed into the PAJA.
Third, the common law mitigates the harshness of certain provisions of the
PAJA — such as the section 7 duties to institute judicial review proceedings within
180 days and to exhaust internal remedies, respectively — which are prima facie
out of step with constitutional values and the more nuanced common-law prin-
ciples. Fourth, the common law provides a contextual backdrop against which
new grounds of review (such as reasonableness) that were not directly available
at common law, can be interpreted and developed.210 Finally, the common law
205
Pharmaceutical Manufacturers (n 2) para 44.
206
Lauren Kohn ‘Our curious administrative law love triangle: The complex interplay between the
PAJA, the Constitution and the common law’ (2013) 28 SA Public Law 22 at 35.
207
Manong and Associates v Director-General: Department of Public Works 2005 (10) BCLR 1017 (C).
208
Ibid at 1026H–1027A.
209
Premier of Mpumalanga v Executive Committee of State-Aided Schools: Eastern Transvaal 1999 (2)
BCLR 151 (CC).
210
See for example Bato Star (n 22) para 44 where O’Regan J drew from the English common law in
giving meaning to s 6(2)(h) of PAJA. She referred to Lord Cooke’s insights on unreasonableness
in the case of R v Chief Constable of Sussex, Ex Parte International Trader’s Ferry Ltd [1999] 1 All ER
129 (HL) 157, and held that, ‘[s]ection 6(2)(h) should then be understood to require a simple test,
namely, that an administrative decision will be reviewable if, in Lord Cooke’s words, it is one
that a reasonable decision-maker could not reach.’
continues to play an independent review role in cases not covered by the PAJA or
by the Constitution more generally.211 For example, in relation to the reviewability
of private power (particularly in a disciplinary setting) exercised by private volun-
tary associations such as religious bodies and sporting clubs, the common law has
remained a pathway to judicial review to the extent that the PAJA’s formulation of
administrative action may exclude such conduct. Thus, the principles of natural
justice which emerged in this context in the string of Jockey-Club-type cases212
continue to find direct application in similar circumstances via the common law.
Note however, that the Ndoro case suggests that even in such cases of strictly private
bodies exercising formally private powers, these powers may nonetheless be subject
to full-blown PAJA-review where their exercise, as a matter of substance in the cir-
cumstances, strives after public objects.213
(f) Remedies
Section 8 of the PAJA provides specifically for ‘[r]emedies in proceedings for judi-
cial review’ and section 8(1) in turn empowers a court in review proceedings to
‘grant any order that is just and equitable’ which mirrors the wide constitutional
remedial discretion in section 172(1)(b) of the Constitution. Section 8 then lists
(non-exhaustively) different remedial orders that a review court may award within
the reach of so-called justice and equity, including the archetypal common-law
remedies: (i) setting aside214 (pursuant to which the decision in question is declared
invalid by the court and this finding operates retrospectively in accordance with
the doctrine of objective constitutional invalidity,215 save where the court directs
otherwise) and (ii) correcting216 (which operates as the exception rather than the
rule in accordance with the separation of powers). Setting aside is a fundamental
remedy that flows from the rule of law in terms of which unlawful administrative
action must be declared invalid.217 It may be the most straightforward remedy, but,
in accordance with the dictates of justice and equity, it still has a discretionary
component. As the Supreme Court of Appeal emphasised in Oudekraal:218
[A] court that is asked to set aside an invalid administrative act in proceedings for judi-
cial review has a discretion whether to grant or withhold the remedy. It is this discretion
211
212
See for example, Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) and Cronje v United Cricket
Board of South Africa 2001 (4) SA 1361 (T).
213
Ndoro (n 26) paras 28–30.
214
Section 8(1)(c) of the PAJA (n 18).
215
Ferreira v Levin NO 1996 (1) SA 984 (CC) para 27 where the court explained that where a decision
is set aside as being invalid, the invalidity operates with retrospective effect.
216
Ibid at s 8(1)(c)(ii)(aa) which allows the court to grant an order ‘in exceptional cases’ aimed at
‘substituting or varying the administrative action or correcting a defect result from the adminis-
trative action.’
217
This in turn flows from the supremacy of the Constitution (s 2,) read with s 172(1)(a) in terms
of which a reviewing court ‘must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency’. See also Bengwenyama Minerals (Pty)
Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) para 84.
218
Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA).
that accords to judicial review its essential and pivotal role in administrative law, for it
constitutes the indispensable moderating tool for avoiding or minimising injustice when
legality and certainty collide.219
This discretionary ‘moderating tool’ was innovatively applied220 by the Supreme
Court of Appeal in Millennium Waste,221 in which the court held a consortium’s
tender for medical waste removal services to be invalid on the basis that it was
‘ “materially influenced by an error of law” contemplated in s 6(2)(d) of PAJA’.222
Despite this finding, in exercising its discretionary power in granting just and equi-
table relief, the court did not set aside the impugned tender for to do so would
have adverse consequences for the public purse.223 Furthermore, the termination
of the tender contract would disrupt the delivery of the important public service of
ensuring safe and expeditious removal of medical waste from public hospitals.224
The Court solved this dilemma by granting a remedy aimed at striking the right
balance between the competing interests of the parties and the public at large: it
directed the tender board to re-evaluate both the consortium’s and Millennium
Waste’s tenders relative to one another by a particular date in order to determine
‘which tender ought properly to have been accepted’.225 If indeed it should have
been the latter’s, then further orders of the court would issue including, at that
stage, the setting aside of the original tender award.226
Other remedies provided for in section 8 include: directing the administrator
to give reasons or to act (or desist from acting) in a particular manner;227 a decla-
ration of the rights of the parties in respect of the matter to which the administra-
tive action relates;228 granting a temporary interdict or other temporary relief;229
and making any order as to costs.230 Section 8(1)(c)(ii)(bb) provides for a creative
remedy in the public law context: it enables a court in ‘exceptional circumstances’
to direct ‘the administrator or any other party to the proceedings to pay com-
pensation’. This innovative addition to the PAJA’s remedial framework is bolstered
by section 38 of the Constitution (‘enforcement of Rights’), read with section 172
(‘powers of courts in constitutional matters’), which empower a competent court
to grant ‘appropriate relief’ which may include an award of constitutional damages
219
Ibid para 36. On the Oudekraal principle pursuant to which administrative acts (and the exercise
of public power more generally) must be treated as valid until set aside by a court, see Corruption
Watch NPC v President of the Republic of South Africa 2018 (2) SACR 442 (CC) and Magnificent Mile
Trading 30 (Pty) Limited v Charmaine Celliers NO [2019] ZACC 36 (9 October 2019).
220
See also the seminal AllPay judgments: AllPay I (n 87) and AllPay Consolidated Investment Holdings
(Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency (No 2) 2014
(4) SA 179 (CC) (the ‘Remedy judgment’).
221
Millennium Waste Management v Chairman, Tender Board: Limpopo Province 2008 (2) SA 481 (SCA).
222
Ibid para 21 read with para 35(e)(i).
223
Ibid para 29–32.
224
Ibid para 28.
225
Ibid para 35(2)(b).
226
Ibid para 35(2)(c)- (e).
227
Section 8(1)(a) and (b) of the PAJA (n 18).
228
Ibid at s 8(1)(d).
229
Ibid at s 8(1)e).
230
Ibid at s 8(1)(f).
aimed at promoting respect for the right in question and deterring future viola-
tions. In the case of Steenkamp NO v Provincial Tender Board, Eastern Cape,231 Sachs
J in a typically eloquent dissent, highlighted that, ‘[j]ust compensation today can
be achieved where necessary by means of PAJA’ which renders it unnecessary to
‘stretch the common-law’ principles in question.232 O’Regan J and Langa CJ added
in their dissenting judgment that, ‘the power to direct the payment of compensa-
tion conferred by s 8(1)(c)(ii)(bb) will result in the development of administrative
law principles governing the payment of compensation to vindicate the constitu-
tional right to administrative justice’.233 Finally on the matter of remedies, it should
be noted that the Constitutional Court in Trencon Construction,234 clarified the test
for exceptional circumstances to substitute or vary the administrative action,235 in
a manner respectful of the separation of powers. This summary illustrates that the
PAJA certainly creates scope for the effective exercise of the judicial remedial dis-
cretion; however, the extent to which this will meaningfully be harnessed by the
courts really remains to be seen.
7. CONCLUSION
This Chapter presents a high-level analysis of administrative law of the past and
present: it summarises the salient aspects of the ‘new South African administra-
tive law’ as informed by its ‘old’ common-law roots. As the analysis, with its case
law focus, indicates, this ‘new’ system of administrative law is still in large part
a product of the continued dominance of judicial review which is now available
via seven ‘pathways’, if one counts the addition of state self-review under legality.
However, both the Constitution and the PAJA display a willingness to counte-
nance — and arguably, encourage — non-judicial ‘checks’ to address maladminis-
tration and the abuse of public power more generally. Herein lies the promise of a
more integrated future for the South African system of administrative justice.
‌Thus, for example, Chapter 9236 of the Constitution establishes various insti-
tutions237 to investigate and address instances of maladministration and corrup-
tion, and the Public Protector has, in particular, proven to be a key player in this
231
2007 (3) SA 121 (CC).
232
Ibid para 101.
233
Ibid para 97.
234
Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited
2015 (5) SA 245 (CC). For an elucidation and analysis of this test, see Lauren Kohn ‘The Test
for ‘Exceptional Circumstances’ where an Order of Substitution is sought: An Analysis of the
Constitutional Court judgment in Trencon against the backdrop of the Separation of Powers’
(2015) 7 Constitutional Court Review 91.
235
Section 8(1)(c)(i) of the PAJA (n 18).
236
‘State institutions supporting constitutional democracy’.
237
Sections 182–3 of the Constitution (n 8) provide for the establishment of a ‘Public Protector’,
charged with, inter alia, investigating ‘any conduct in state affairs, or in the public administra-
tion in any sphere of government, that is alleged or suspected to be improper or to result in
any impropriety or prejudice’ (at s 182(1)(a)). Sections 188–9 regulate the office of the Auditor-
General, tasked with the function of auditing and reporting on the financial affairs of, inter alia,
‘all national and provincial state departments and administrations [and] municipalities’.
regard238 — certainly during Advocate Thuli Madonsela’s incumbency. 239 The

Constitution also guarantees the right of access to information in section 32,
which right is given detailed legislative effect through the PAIA. These constitu-
tional safeguards indicate the overriding commitment to a version of democracy
that is representative, deliberative and participatory in nature.240 In relation to the
exercise of administrative action, this constitutional commitment to participatory
democracy is strengthened by the legislative measures included in the somewhat
creative section 4 of the PAJA which governs administrative action affecting the
public. Section 10 of the PAJA is also full of promise — it enables the Minister to
make Regulations on (amongst others) the ‘establishment, duties and powers of
an advisory council’ in the nature of an Administrative Justice Advisory Council,
which again holds potential for the development of an effective integrated system
of administrative justice in South Africa.
‌In sum, South Africa’s system of administrative law is characterised by a state
of fluid development in which judicial pronouncements from the highest courts
are eagerly anticipated, as lawyers and litigants seek a greater degree of certainty
and adherence to predictable principle. Indeed, some have argued that the judicial
regulation of the exercise of public power has become the battlefield for waging
‘lawfare’ once again;241 given the fact that administrative law reflects the theory
of state242 in which it functions and constitutional governance in South Africa has
changed radically since 1994. The chief challenge is to secure fidelity to constitu-
tional prescripts while widening the focus from judicial review of administrative
action to the broader future-fit demands of administrative justice.
238
See Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC) (the so-called
‘Nkandla judgment’).
239
While the powers of the Public Protector to combat maladministration and corruption became
a matter of political fact over the period 2012 to 2017, these powers have recently shown the
regrettable potential to be used for other, and perhaps ulterior, purposes.
240
See Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) paras
110–7.
241
See in this regard Michelle Le Roux & Dennis Davis Lawfare: Judging Politics in South Africa (2019),
and Hugh Corder & Cora Hoexter ‘ “Lawfare” in South Africa and Its Effects on the Judiciary’
African Journal of Legal Studies 10 (2017) 105–126 and cf Theunis Roux ‘The Constitutional Court’s
2018 Term: Lawfare or Window on the Struggle for Democratic Transformation’ Constitutional
Court Review X (forthcoming).
242
Carol Harlow & Richard Rawlings Law and Administration 3ed (2009).
Pursuing
Good
Governance
ADMINISTRATIVE JUSTICE
IN COMMON-LAW AFRICA
ABOUT T H E B OOK A BO U T THE EDI TO RS

In the age of democratic constitutional gov- Hugh Corder has been Professor of Public Law at
ernment, every citizen expects to be treated the University of Cape Town since 1987. He has
fairly by the public administration. Constitu- led the process of administrative justice reform in
tions adopted after 1990 have increasingly South Africa since 1992.
contained provisions that oblige the public Justice Mavedzenge is a Research Officer in the
administration to act lawfully, reasonably and Democratic Governance and Rights Unit in the
procedurally fairly, and frequently grant citizens Faculty of Law at the University of Cape Town,
the legal right to seek review of administrative and an expert on Zimbabwean constitutional law.
action affecting them. Southern African nations
have led the way in this movement, closely fol-
lowed by those in east Africa. This book brings
together critical accounts of the development
of the broad administrative justice landscape
in seven national jurisdictions located in these
regions. It does this by analysing trends in the
review authority and practice of the superior
courts, as well as significant developments in
PUR
non-judicial monitoring institutions, such as
ombuds offices, human rights commissions,
and mechanisms to access official information.
GOVER
9 781928 309307

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Pursuing

Good ADMINISTRATIVE JUSTICE

ISBN 978-1-928309-30-7 (print format)

This work is licensed under the Creative Commons

Typesetting and cover by G J du Toit

The Rule of Law Programme for Sub-Saharan Africa of the Konrad-Adenauer-

However, given the origins of the right to administrative justice in Namibia,

‘An Intervention to Secure a Greater Degree of Administrative Justice Reform

standards of review are confined to those recognized in common-law princi-

The State of Administrative Justice

2. CONSTITUTIONAL BASIS FOR ADMINISTRATIVE JUSTICE

administrative accountability, rule of law and strong constitutionalism.16 Instead,

(b) The scope of judicial review

(c) Grounds of judicial review

e) by interference with fundamental rights and other constitutionally guaranteed

(iii) Procedural impropriety

(v) Legitimate expectation

4. EXCLUSION OF JUDICIAL REVIEW (OUSTER CLAUSES)

6. ADMINISTRATIVE OVERSIGHT INSTITUTIONS

it is alleged that a person has suffered injustice in consequence of that action’.109 It

(b) Parliamentary oversight

charged through the question-and-answer mechanism and the committee system

The State of Administrative Justice

2. THE NATURE AND STATUS OF ADMINISTRATIVE LAW

3. JUDICIAL REVIEW IN ZAMBIA

(a) Legal authority for judicial review

(i) Constitutional provisions that support judicial review

to discontinue criminal proceedings in Milford Maambo and Other v the People.20 In

(ii) Law applicable

(b) Scope of judicial review

(c) Executive discretion and separation of powers

(d) Grounds for judicial review

also covers situations where the administrator exercises administrative authority

(iii) Procedural impropriety

(e) Remedies for judicial review

(f) Constitutional role of Parliament and norm setting

4. ALTERNATIVES TO JUDICIAL REVIEW

incremental mechanism of seeking redress.56 Comprehensive change over a major

(a) The Human Rights Commission

(b) Public inquiries

(d) The Public Protector

corruption and abuse of authority.89 The Commission, therefore, recommended

government accountable on behalf of the citizens.112 The people also found it

Initiation of investigations is governed by section 13(1) of the Public Protector

The Control of Administrative Power in

has generated a debate on whether this is a substantively new ground of review

(a) Non-judicial avenues for controlling administrative authority

istrative authority. For example, the Auditor-General checks against maladminis-

(b) Judicial review

as a ground of review, a review of the substantive fairness of conduct essentially

(a) Substantive fairness in the context of decisions which affect rights

Thus, one of the requirements is that any limitation of a constitutionally recog-

to rights that are non-constitutional in nature. It is on this premise that I suggest

(b) Substantive fairness in the context of decisions which affect legitimate

Substantive legitimate expectations cannot be enforced or protected by insisting

The State of Administrative Law in Malawi:

2. ISSUES WITHIN JUDICIAL REVIEW

In the case of Chioza v Board of Governors of Marymount Secondary School,12 the

(b) The enduring role of the (English) common law

(b) Substantive fairness in the context of decisions which affect legitimate

(b) The role of administrative justice in facilitating the realisation of socio-

primary grounds of review — lawfulness, reasonableness and procedural fairness —

regard238 — certainly during Advocate Thuli Madonsela’s incumbency. 239 The