Judicial Review, Administrative Power and Deference: A View From the Bench
Authors Clive Plasket
Affiliations: Judge of the High Court of South Africa; Visiting Professor, Rhodes University
Source: South African Law Journal, Volume 135 Number 3, p. 502 – 523
This article examines what is meant by ‘deference’ in the context of administrative law, what the courts have said about deferring to administrators, and whether deference has made any difference to the outcome of any judicial-review cases. The central argument that is advanced is that far too much is made of the concept: respect for the decisions of properly empowered primary decision-makers is already embedded in the review function of courts, principally as part of the doctrine of the separation of powers, and in fact the concept of deference has no separate, stand-alone function since the concept has not ever made any difference to a court’s decision, the decision in fact having been based on established administrative-law principles. Much of the academic debate about deference is really a debate about administrative-law reform generally, and the place of judicial review in administrative law.