On the Legal Effects of Unlawful Administrative Action
Authors Daniel Freund, Alistair Price
Affiliations: Candidate Attorney, Bowman Gilfillan Inc; Associate Professor in Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 184 – 208
The rule of law, a founding value of the South African Constitution, is a complex ideal. It comprises principles that, on occasion, pull in different directions. This conflict within the rule of law is laid bare in administrative law. The tension is most acute when a court is called upon to remedy unlawful administrative action. On one hand unlawful administrative action ought to have no legal effect. On the other hand, considerations of certainty and practicality may require courts to decline to set aside unlawful administrative action with retrospective effect. Sometimes unlawful administrative action may justifiably have legal effects. This article first demonstrates how this apparent paradox is visible at all stages of the application of administrative law. The article then turns its focus to the remedial stage: that is, when a court has to decide when it is just, equitable and in the public interest not to quash an unlawful administrative act. To this end we explain the proper relationship between the remedial provisions of the Constitution and the Promotion of Administrative Justice Act. We then propose a non-exhaustive set of considerations that ought to guide the courts’ exercise of remedial discretion which may assist the incremental development of a principled and predictable jurisprudence.