1.

Brief history of the Wednesbury review and its objective

- judicial review at common law is to review the decision-making process by
the public authority
- x to review the merit of the decision
Merdeka Universitys case:-the

dicta

by

Abdoolcader

sums

up

all

the

grounds

on

which

discretionarydecision can be challenged

- judicial review laid down in UK case of Wednesbury
-provided 2 limbs of unreasonableness:- a) Super-Wednesbury, b) SubWednesbury
Super-wednesbury unreasonableness
- the decision is so unreasonable that no reasonable official could have
arrived to such a decision
-the high threshold of proof is required on the part of the claimant for
pursuing the ground of Super-Wed unreasonableness
- govt policy involved, only bad faith of an extreme kind will satisfy the
threshold of Super-Wed unreasonableness
- Nottinghamshire
Sub- wed unreasonableness
- abuse of discretionary power
- a decision that is tainted by mala-fide (Partap Singh)
- influenced by an improper purpose (Sri Lempah case, Sydney Municipal)
- setting aside relevant consideration (Tan Tek Seng)
- taking into relevant account irrelevant consideration (Padfield)

CCSU case came about

- recategorised the 2 limbs of Wednesbury unreasonabless into 3 categories
- illegality, irrationality, procedural impropriety
- proportionality-possible 4th ground of review
- super is re-labeled as irrationality in CCSU
- In Ex p Fielder, the court held that failure to act with procedural fairness
amounts to irrationality

Regime Shift to constitutional and fundamental right perspective

- in SA, s 33(1) of the SAC provides that just admin action must be lawful,
reasonble, proceduraly fair
-part of the Bill of Rights
- s 7 - s39
-just admin action is a FR of the citizen
-the more vulnerable the affected victim is, the more onerous is the duty of
justification on the defendant govt body
-s 33(1)- 3 grounds of judicial review
S. 33(1) of South African Constitution: 3 grounds of judicial review stipulated in the

Constitution. They are:

1st ground
Lawfulness

Wednesbury

2nd ground
Reasonableness

3rd ground
Procedural fairness

unreasonableness is still part of this new regime: What is the

authority? Phamaceutical Manufacturers Association case.

Lawfulness: Includes All the aspects of sub-Wesnesbury unreasonableness.

-Waks v Jacobs- here was a desire of the administrators to prevent the coloured ppl from
using municipal facilities
Reasonableness: Includes Super-Wesnesbury unreasonable ness; irrationality;
rationality; proportionality.
- Sidumo- dismissal of a workman fr a platinum mine for failure to body search of the
mine workers. The employer x prove the loss suffered, it was held that the dismissal x
comply with the test of reasonableness
Procedural fairness: Rules of natural justice; express mandatory procedure laid
down by law not followed. More liberally construed than the common law position.
More is required than the common law position.
- Cape Killarney Property Investments
- the eviction of over 500 ppl fr the land they had been occupying
- the written notice should have been supplemented by loud-hailer broadcast in Xhosa
language as the affected ppl were illiterate
PAJA
- enacted under s 33(3) SAC
-used to facilitate applications for judicial review in SA
Conclusion:
Proportionality, rationality, irrationality are subsumed under the main ground of
reasonableness.
- x operate independently
- PIL is inherent part
-locus standi are liberalised and constitutionalised