By Lelo Macheke and Helen Kruuse
South African High Court Judge in the Eastern Cape division, and presently acting Judge of the SCA, Clive Plasket presented a public lecture on 11 October 2017 titled: ‘Judicial Review, Administrative Power and Deference: A view from the Bench’ at the Faculty of Law.
Judge Plasket is a visiting professor at the Faculty of Law with a human rights record going back to the fight against apartheid. He holds a Doctor of Philosophy degree from Rhodes University.
He began his lecture on the judiciary’s use of the term ‘deference’ by foregrounding his arguments with the growing number of clashes between the African National Congress members of the executive and the judiciary.
In the light of these clashes, he went on to examine the meaning of 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.
As a point of departure, Judge Plasket examined the history of South Africa’s administrative law - considering the common law power of the superior courts to review administrative action.
Derived from the coloniser, Britain, he identified that events in Britain (particularly around the struggle for power between Crown and Parliament in the 17th Century) moulded the courts’ review jurisdiction of administrative action in South Africa. Noting that the basis for judicial review changed from the common law to the Constitution after April 1994, Plasket pointed out that the fundamentals of judicial review have remained the same, but now with broader grounds of review.
He raised ‘deference’ and the complex dimension it added to the dispensation of administrative justice. Essentially he argued that deference as a concept is a much misused and misunderstood concept in administrative law. He considered that courts could not ‘defer’ in respect of review for unlawfulness, unreasonableness, or procedural unfairness. Essentially, he argued, all of these grounds are a reason for setting an administrative decision aside, no matter what amount of deference is argued.
In considering cases where deference has been referred to by a court, Judge Plasket noted that its application has never changed a result. He praised the courts and administrative bodies in recent democratic history for remaining objectively independent within their jurisdiction by making decisions based on the facts of the matters presented.
Amongst the cases referred to, he mentioned the successful review of Zuma’s decision to appoint Simelane, administrative action regarding fishing quotas, and the purchase of property by a provincial government.
In concluding, Plasket used these cases to demonstrate that the concept of ‘deference’ is little more than a short-hand way of saying to the parties to a dispute, the public at large and perhaps mostly directed at politicians that: the judge knows his or her role, understands the difference between review and appeal, and is alive to the doctrine of separation of powers. Apart from this role, Plasket closed by suggesting that the term was ‘essentially meaningless’.