By Tanya Sylvia Mugwagwa
On 03 October 2023, Rhodes University hosted Professor Clive Plasket for his final public lecture as a Visiting Professor in the Faculty of Law.
In her welcome address, Professor Helena van Coller, the Deputy Dean of the Faculty of Law, emphasised the honour of having Judge Plasket speak to the students and staff about Administrative Law. She also acknowledged the presence of special guests, including the Chancellor of Rhodes University, Honourable Justice Lex Mpati, and colleagues of Judge Plasket, namely retired Justice Johan Froneman and Judge Jeremy Pickering.
Before assuming the role of Visiting Professor in July 2003, Judge Clive Plasket briefly lectured at the Rhodes University East London campus in the 1980s. He later embarked on a career in practice, joining the firm Cheadle Thompson & Haysom and, subsequently, the Legal Resources Centre. Judge Plasket returned to academia in 1998, where he lectured and earned his PhD in Administrative Law. In 2003, he was appointed as a judge in the Eastern Cape Division and joined the bench of the Supreme Court of Appeal in 2019.
"I haven't focused too much on his work as a judge or as the 'North Star of Administrative Law' tonight, simply because you can read all about that in his excellent judgments and articles," Associate Professor Kruuse remarked. "I wanted to focus on him as a mentor, friend, and guide in his unpretentious and pragmatic way. He gives generously of his time and knowledge and gives constructive criticism. He should be proud of the work he has done and the difference he has made."
Judge Plasket has authored more than 50 pieces in peer-reviewed journals and books, predominantly on Administrative Law, and has rendered over 100 reported judgments on various matters. It is fitting that for his final public lecture, Judge Plasket addressed the issue of judicial review in Administrative Law and the need for the harmonisation of the pathways to review.
He commenced his lecture by outlining the Constitutional history behind judicial review of administrative action, primarily focusing on the inclusion of the right to just administrative action in section 24 of the Interim Constitution and its subsequent enshrinement in section 33 of the final Constitution. He then explained how, as a result of the Promotion of Administrative Justice Act of 2000 (PAJA), a bifurcated system of review had emerged, where judicial review of administrative decisions occurred at times under the Act and at times under the principle of legality founded in the rule of law
"What I will be doing is examining these two pathways of review to analyse the extent to which they are similar and the extent to which they differ," Judge Plasket stated. "I argue that as a matter of legal principle and policy, these two pathways of review should be harmonised."
The judge shared his profound legal insights and analysis on the disparity between the PAJA grounds of review and the grounds of review under the principle of legality, with a particular focus on procedural fairness, reasonableness, and procedural issues like the rule against delay and exhaustion of internal remedies. He posited that while significant progress had been made in harmonising some contentious areas, such as the rule against delay, certain areas still required alignment, notably the issue of procedural fairness, where the Constitutional Court had excluded it as a ground of review for executive action.
The Judge expressed that the disharmony between the grounds of review under PAJA and the principle of legality could only be rectified through judicial interpretation and intervention by the Constitutional Court when the right case presented itself under the appropriate circumstances.
"What we can say is that a great deal of impressive work has been done over the years to develop a harmonious set of principles to govern the review of administrative action out of this bifurcated system. We just need to make some adjustments here and there, and everything will be in order," the Judge concluded his lecture.
Following the lecture, Judge Plasket fielded questions from students and staff in attendance. When addressing the question of what would happen to Administrative Law if complete harmonisation were achieved, the Judge explained that harmonisation would make the judicial review of administrative action much more manageable.
"A lot of time and effort is currently spent determining the justification for review, whether under PAJA or under the principle of legality. I know that in several judgments, I've stated 'the ground of review that applies here applies either way, so it doesn't really matter,' I've been criticised for impurity in my legal thinking. However, I believe that this is one of the advantages of a properly harmonised system. We won't have to worry too much about these distinctions because the answer should be the same in either case," Judge Plasket reiterated.
Paying tribute to Judge Plasket, SCA Judge Nambitha Dambuza said in a letter that his contribution to law had been laudable:
“The hundreds of young lawyers you have produced and mentored, the numerous written articles, and judgments from which we will continue to benefit-- I attest to your integrity, aversion to injustice and commitment to speaking truth to power, in court and in your other daily interactions. You should be proud of the work you have done and the difference you have made.”
The evening concluded with a vote of thanks from the LLB Final Year Class Representative, Bokang Mphuthi, and was followed by a reception and dinner with staff members and friends of the Faculty.