New rules for judicial review declared unconstitutional

The North Gauteng High Court today delivered judgment in the case of Lawyers for Human Rights v Rules Board for Courts of Law and Another, case no 78163/2009.

This was an application challenging the constitutionality of new rules for judicial review passed by the Rules Board and approved by the Minister of Justice.  All parties agreed that the rules would not be implemented until the matter had been finally decided in court.

In terms of the present rules of judicial review, once an applicant has launched an application to review the decision of a state administrator, the applicant has the right to access a full copy of the record of proceedings.  This includes all documents which were before the administrator when he or she made his or her decision.  The applicant, upon perusal of the documents, can then amend the application and modify the grounds of review for the court to consider.

Under the new rules, the prospective applicant would have to provide his or her grounds of review to the administrator before litigation had begun and the administrator would then decide which documents were relevant to the specified grounds of review and given to the applicant.  In addition, the administrator was given a wide discretion to decide whether certain documents could be shared and which were to be kept confidential.  The applicant would then have to launch proceedings with an incomplete view of how the decision had taken place.   

The Court found the new rules unlawful and unconstitutional on a number of grounds, including:

The definition of relevant documents was too restrictive and a violation of an applicant’s right to access information and right to just administrative action under the Constitution;

The provision which allows an administrator to refuse to provide a copy of documents “on any valid ground” was too vague; and

The grounds upon which allowed an administrator to declare documents confidential was also vague and provided no guidance to the administrator.

Although the respondents relied on arguments that such wide provisions for access to all documents before the administrator was too expensive and onerous on the state, the Court reiterated previous judgments of the Constitutional Court that administrative inconvenience cannot be used as an excuse to limit fundamental rights.  The right to review decisions of state administrators and have access to information held by those administrators are among such fundamental rights.

“LHR is very pleased with the outcome of the application,” said Jacob van Garderen, national director of Lawyers for Human Rights.  “We believe that access to information and judicial review remain two of the most important tools available to those whose constitutional rights are under threat. This decision reaffirms the need for government administrators and those affected by their decisions, particularly vulnerable groups and marginalised communities to be placed on a more equal footing when defending rights in court”

At present, the current Uniform Rule 53 still applies to judicial review proceedings including the right to a full copy of the record of proceedings.

LHR would like to thank Legal Aid South Africa for their continued financial support of this case and LHR’s public interest litigation.