Oudekraal after fifteen years: the second act (or, a reassessment of the status and force of defective administrative decisions pending judicial review)

Author DM Pretorius

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD PGCE, Partner: Bowmans, Johannesburg; Director: St Augustine College of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 1, 2020, p. 3 – 36


This article revisits the decision of the Supreme Court of Appeal (“SCA”) in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 6 SA 222 (SCA) (“Oudekraal”) with reference to subsequent case law in an endeavour to clarify the ramifications of the Oudekraal decision. In particular, this article assesses the status and effect of ostensibly defective administrative action pending the outcome of judicial review proceedings aimed at ascertaining the validity or otherwise of such action. The article explores whether the impact of Oudekraal is that a person affected by administrative action which is prima facie unlawful is nevertheless bound by it unless and until it is declared invalid and set aside on judicial review. It also explores whether organs of state are bound by apparently flawed administrative action and must give effect to it as though it were lawful and valid, unless and until it is formally declared invalid and set aside by a court of law. The conclusion is that Oudekraal confirms that a person may disregard prima facie unlawful administrative action and, if it were to be enforced against him, challenge its validity reactively. However, absent statutory indications to the contrary, the author of seemingly unlawful administrative action may not disregard it despite its apparent legal infirmities. Likewise other organs of state are, unless otherwise authorised by law, generally bound by that defective administrative action unless and until it is set aside on review. The SCA enunciated several discrete principles in Oudekraal but subsequent case law has tended to conflate these principles, with resultant confusion about the import of Oudekraal. This article recommends that the questions posed above should not be answered with reference to elusive general principles sought to be inferred from Oudekraal, but rather with reference to the specific provisions of the relevant legislation.