LHR challenge to rules of judicial review in court

Lawyers for Human Rights (LHR), with the financial support of Legal Aid South Africa, has brought a challenge to the new rules of judicial review, which application will be heard in the North Gauteng High Court on Monday 6 February 2012. 

The application has been brought against the Rules Board for Courts of Law, who drafted the rules, and the Minister of Justice and Constitutional Development who approved and promulgated the rules. The Rules Board has elected to abide by the decision of the court while the Minister of Justice has agreed to suspend implementation of the new rules until the matter has been decided. 

Under the current rules for judicial review, an applicant who wishes to review an administrative decision in court has the right to a full copy of the record of decision which includes every document which was before the administrator when the decision was made. Under the new rules, the administrator who took the decision, including government officials or private persons exercising public power, will be responsible for determining which parts of the record will be made available to the applicant based on their stated grounds of review. In other words, the decision-maker will determine which documents will be made available to the applicant and which will not.        

“Having sight of the full record of decision is necessary in order to determine all the grounds upon which an applicant may challenge administrative decisions,” explains David Cote of Lawyers for Human Rights. “It also fosters a culture of transparency in government to ensure that all decisions are lawful and compliant with the constitutional right to just administrative action. This is particularly necessary in government’s - and the public’s - fight against corruption.”

The new rules’ reliance on the rules of discovery to gain access to additional documents will further lead to undue litigation and expense for applicants. This is particularly true of indigent applicants who are reliant on legal aid and civil society organisations which enforce constitutional rights in courts. 

While LHR is mindful of the heavy burdens placed on government officials, we will argue that expense and administrative inconvenience cannot be used as reasons to limit the right to judicial review, a key tool in enforcing administrative justice. 

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