“It is critical for potential litigants to understand the prospects of successfully obtaining an order of substitution, given that the relief it presents may very well be the strongest incentive for bringing the review in the first instance.”
INTRODUCTION
You are in a dispute with an administrative body. You are unhappy with a decision that has been made (or lack thereof), and you have exhausted all of your internal remedies within the administration. You are informed of your rights in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), and decide to enforce your rights and challenge the decision by way of judicial court review.
This piece will seek to shed light on what a court’s options are when reviewing the decision, and the likelihood of a court overturning and/or substituting the decision with a new decision in your favour.
Everyone has the right to just and fair administrative action. This right is most often exercised through judicial review, in instances where the decision made (or lack thereof) by a public body, lower court or tribunal is brought into question.
A substitution order is considered an order made by a higher court, substituting or varying the administrative action or correcting a defect in the decision made by the lower body.
Whilst most individuals are likely to be aware of their right to take a decision on judicial review, the concept of what defines a “successful outcome” or “successful review application” being granted in your favour, is often misunderstood. Moreover, the extent of the powers at the disposal of the court hearing the review application to overturn / substitute the decision made by the lower body is often over-relied upon.
It is critical for potential litigants to better understand the prospects of successful substitution, given that the relief it presents may very well be the strongest incentive for launching the review in the first instance.
REMEDIES AVAILABLE ON REVIEW
PAJA sets out several remedies available in proceedings for judicial review, and highlights the options available to a court or tribunal when hearing the review. Most commonly, their powers include:
- Referring the action back to the decision maker (with or without instructions) to reconsider its decision;
- Issuing an interdict (which is an order preventing the administration from acting or continuing to act);
- Issuing a mandamus (which is an order compelling the administration to do something);
- Replacing/substituting the decision with its own decision.
But when can a court substitute a decision?
PAJA seeks to give effect to the constitutional right of just administrative action, and empowers courts in judicial review proceedings to make a just and equitable order, substituting or varying the administrative action or correcting a defect resulting from the administrative action only in exceptional circumstances.
THE TEST FOR EXCEPTIONAL CIRCUMSTANCES
PAJA, however, fails to provide guidance on what “exceptional circumstances” would allow for this exceptional remedy. [1] This begs the question, what are the prospects of having a court overturn the decision of the original decision-making body? We accordingly turn our attention to common law, where, over time, the key factors considered in this “exceptional circumstances test” have developed.
It is a well-established principle of our common law that the courts will be reluctant to substitute their decision for that of the original decision maker. This reluctance to intervene and substitute flows directly from the well-known principle of the separation of powers, which requires courts to recognise their limitations and respect the competence of administrative bodies specifically designed to fulfill a particular purpose.[2]
This is fueled by the thought that a court typically has none of the industry specific advantages of a specified body, and is required to recognise its own limitations, unless “exceptional circumstances” are present, in which case a court can legitimately assume an administrative decision-making function.[3]
The recent judgment of the Constitutional Court in Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd 2015 (10) BCLR 1199 (CC) clarified the test for exceptional circumstances where a substitution order is sought, and addressed the related degree of deference required of our courts. Whilst Trencon confirmed the court’s authority to review administrative decisions, it asserted the need for caution in substituting administrative decisions with judicial ones.
In doing so, Trencon developed the following open list of considerations that the higher court should take into account when seeking the appropriate remedy:
- Is the court in as good a position and accordingly as well qualified as the original authority to make the decision;
- Is the result a foregone conclusion, and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter;
- Will the additional delay (of sending back to the original decision maker) cause unjustifiable prejudice;
- Has the functionary or tribunal exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again.[4]
Trencon asserted the need for caution when applying the considerations to conclude substitution, and found the application thereof to be strict and “exceptional”. This was later reiterated in The City of Johannesburg Metropolitan Municipality and Others v San Ridge Heights Rental Property (Pty) Ltd (517/2022) [2023] ZASCA 109, where the Supreme Court of Appeal confirmed the relevant consideration for exceptional circumstances and re-emphasised the need for caution in substituting administrative decisions. A relevant extract from the judgment stated as follows:
“It suffices to state that remittal is almost always the prudent and proper course. Appropriate deference ought to be afforded to the administrator. Whether a court was in as good a position as the administrator to make the decision and whether the decision was a foregone conclusion are two factors that had to be considered cumulatively. Other relevant factors include delay, bias or incompetence on the part of the administrator.” [5]
What does this mean? Simply, in most administrative reviews, even if you are successful, the prudent course of action is for the court to remit the matter back to the administrative body for reconsideration. Whilst a substitution order is possible, it is unlikley, given the common law position. Only when exceptional circumstances are met, which circumstances should be considered in light of the Trencon and San Ridge Heights judgments, will a court substitute the decision with one of its own.
CONCLUSION
While the court possesses the authority to review and, in exceptional cases, substitute administrative decisions, it does so cautiously and with due regard for the expertise of other authorities. Against the backdrop of the separation of powers, the ultimate emphasis is to safeguard the principles of transparency, accountability, and justice in administrative actions. This should be borne in mind when considering whether to incur the time, effort and cost of reviewing a decision in terms of PAJA.
Written by James Gallow
Please feel free to contact the writer should you have been impacted by a decision, and should you wish to consider your options in light of the above.
[1] The Test for ‘Exceptional Circumstances’ Where an Order of Substitution is Sought: An Analysis of Trencon Against the Backdrop of the Separation of Powers, Lauren Kohn
[2] The Test for ‘Exceptional Circumstances’ Where an Order of Substitution is Sought: An Analysis of Trencon Against the Backdrop of the Separation of Powers, Lauren Kohn
[3] Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape, and Another [2007] ZAECHC 149, 2007 (6) SA 442 (Ck), [2008] 1 All SA 142 (Ck)(‘Intertrade’) at para 43 (emphasis added).
[4] Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd 2015 (10) BCLR 1199 (CC)
[5] The City of Johannesburg Metropolitan Municipality and Others v San Ridge Heights Rental Property (Pty) Ltd (517/2022) [2023] ZASCA 109