Judicial Procedure and Review.docx - Judicial review...

Judicial review
Standing
-Right of an aggrieved person to approach a court of law for relief
-it is the entitlement to be heard, if one has a sufficient interest in the matter
-WHY?
 To protect scarce state resources and make sure judiciary is not overburdened
 Concrete disputes presented instead of mere abstract cases
 Person with sufficient interest will have the most access to relevant information for
the case
 Protects legitimacy of the courts by making sure that not every (political) matter can
be heard
-In the common law, one had to show sufficient, direct and personal interest. “personal”
meant that it had to affect the litigant in his own right; “sufficient” meant it needed to be
proprietary, pecuniary or personal liberty interest; and “direct” meant there had to be a
personal nexus between the act and the person
-The Constitution has a more generous and expanded than the common law, as contained in s
38. It increases the ambit of standing to include those who act in the public interest
- s 38 states that the persons who may approach a court are—
(a) anyone acting in their own interest: this reflects the common law but is broader because
the individual only has to show he was directly affected (no requirement of sufficiency
anymore)
(b) anyone acting on behalf of another person who cannot act in their own name: eg Ngxuza:
court held that many other grant-holders wouldn’t be able to act in their own name, so the
applicants in this case were acting on behalf of these individuals too
(c) anyone acting as a member of, or in the interest of, a group or class of persons: nothing
yet under PAJA, but would be similar to Ngxuza
(d) anyone acting in the public interest: broadest ground of standing. Lawyers for Human
Rights: to see if acting in public interest, see: whether there is another reasonable and
effective manner to bring the challenge, nature of relief sought and whether it is general and
prospective, range of persons who may be affected by court order and if they had opportunity
to present evidence, degree of vulnerability of those affected, nature of right said to be
infringed, consequences of infringement of the right
(e) an association acting in the interest of its members: must have capacity to sue and
sufficient interest to sue.
Standing in PAJA
-No explicit provision on standing. S 6 just says “any person”
- Giant concerts: s 38 of the Constitution applies to PAJA, Questions of standing and merits
should be kept separate (so maybe an action is unlawful but won’t be struck down because
you had no standing. Quinot states it is thus probably safest to rely on public interest standing
where possible)
Procedure for Judicial Review
-first, must have standing and must establish a ground of review in s 6 of PAJA
-further s 7(2) of PAJA states that one must exhaust internal remedies before one can
approach the courts, and s7 (1) says that judicial review must be instituted without reasonable
delay and within 180 days.