Judicial Review

Introduction

Judicial review in South Africa refers to the power of the courts to review the constitutionality and legality of legislative and executive action. The power is rooted in the supremacy clause (section 2) of the Constitution, which provides that any law or conduct inconsistent with the Constitution is invalid. Judicial review encompasses both constitutional review (review of legislation and conduct against constitutional requirements) and administrative review (review of administrative action under PAJA and the common law).

Constitutional Review

The Constitution confers on the courts, and particularly the Constitutional Court, the power of constitutional review. Section 172 provides that a court may declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency. The Constitutional Court has exclusive jurisdiction over the constitutionality of bills before Parliament and disputes between organs of state.

Standing

Section 38 of the Constitution adopts a generous approach to standing in constitutional matters. Anyone acting in their own interest, on behalf of others who cannot act, as a member of a class, in the public interest, or as an association acting in the interest of its members, may approach a court for relief.

Remedies

Courts have wide remedial powers under section 172. They may declare legislation invalid, suspend declarations of invalidity to allow legislative correction, read words into legislation to cure constitutional defects, and grant just and equitable relief including interdicts and structural interdicts.

Administrative Review

Administrative review is governed by the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which gives effect to the constitutional right to just administrative action (section 33). PAJA codifies the grounds for review of administrative action, including lack of authority, procedural unfairness, irrationality, and unreasonableness.

Review vs Appeal

A distinction is drawn between review (challenging the legality of a decision) and appeal (challenging the merits of a decision). Review examines the process by which a decision was reached and whether it was lawful, while appeal examines whether the decision itself was correct.

Conclusion

Judicial review is a central feature of South African constitutionalism, giving effect to the supremacy of the Constitution and the rule of law. The courts’ power to review legislation and executive action, combined with generous standing provisions and flexible remedial powers, ensures that constitutional rights are enforceable and that the exercise of public power is subject to legal constraint.