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[2017] ZASCA 99
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Minister of Justice and Correctional Services v Walus (777/2016) [2017] ZASCA 99; [2017] 4 All SA 1 (SCA); 2017 (2) SACR 473 (SCA) (18 August 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 777/2016
In
the matter between:
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVICES
APPELLANT
and
JANUSZ
JAKUB WALUS
RESPONDENT
Neutral
citation
:
Minister
of Justice and Correctional Services v Walus
(777/2016)
[2017] ZASCA 99
(18 August 2017)
Coram:
Maya
P, Shongwe ADP, Mbha and Van Der Merwe JJA and Schippers AJA
Heard:
29
May 2017
Delivered:
18
August 2017
Summary:
Parole
– application therefor brought by respondent serving sentence
of life incarceration for murder in terms of
s 136(1)
of the
Correctional Services Act 111 of 1998
– appellant’s
omission to consider widow of deceased’s victim impact
statement and the failure to furnish the
respondent therewith
constituted material procedural irregularities in terms of
s
6(2)
of the
Promotion of Administrative Justice Act 3 of 2000
vitiating the refusal to place the respondent on parole –
decision remitted for the appellant’s reconsideration.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Janse Van Nieuwenhuizen J
sitting as court of first instance):
1 The appeal
is upheld with no order as to costs.
2 The matter
is remitted to the appellant for his reconsideration and decision
within 90 calendar days of this order.
JUDGMENT
Maya
P
(Shongwe
ADP, Mbha JA, Van Der Merwe JA, Schippers AJA concurring):
[1]
The crisp issue in
this appeal is whether the Gauteng Division of the High Court,
Pretoria (Janse Van Nieuwenhuizen J) erred in
reviewing and setting
aside the decision of the appellant, the Minister of Justice and
Correctional Services (the minister), not
to place the respondent on
parole, on the basis that it was irrational and unreasonable. The
appeal is with the leave of this Court.
[2] The
background facts are simple. On 15 October 1993 the respondent
,
Mr Janusz Jakub Walus,
was
convicted of the murder of the late Mr Thembisile ‘Chris’
Hani (the deceased) and the illegal possession of
a firearm. The
trial court (the Witwatersrand Local Division per Eloff JP) found it
especially aggravating that the respondent
and his co-accused,
[1]
‘
simply arrogated to themselves
the right to destroy the life of a person because of their own
political perceptions’. The
court concluded that the murder was
a calculated, cold-blooded assassination of a defenceless victim for
which the perpetrators
showed no remorse. It therefore sentenced the
respondent to death for the murder and five years’ imprisonment
for the illegal
possession of a firearm.
[2]
On appeal against the death
sentences, this Court, on 7 November 2000, held that the ‘atrocious
crime [of murder] demands
the severest punishment which the law
permits’. Accordingly, this Court commuted the death sentences
to life imprisonment,
antedated to the date of sentence and ordered
the sentence in respect of the other count to run concurrently with
the sentence
of life imprisonment.
[3]
[3] On
10 April 2015, following a hearing of the respondent’s
application for parole held in November 2013,
[4]
the minister decided not to
place him on parole at that stage (the decision). By then the
respondent had served 21 years and six
months of his sentence. The
decision was couched as follows:
‘
1. The
placement of the offender on parole is not recommended at this stage.
2. A further profile of
twelve (12) months is hereby approved.
3. In the interim, the
Department is to assist the offender in the following:-
3.1
Restorative
Justice Process:
It appears from the various
reports that the offender has indicated a willingness to be afforded
an opportunity to personally apologize
to the victim’s family.
In the light of this, I am of the view that it is crucial that he be
afforded this opportunity to
participate in this restorative justice
process. This process will, to an extent, restore the balance and the
harm caused to the
victim’s family hopefully, as well as the
community as a whole. Furthermore, I am certain that this process
will also assist
the offender [to] come to terms with the crime
committed as well as to accept responsibility for the crime and
thereby contribute
towards his own healing and rehabilitation
pathway. This can be achieved either through the VOD and/or VOM
process or whichever
process is deemed appropriate by the qualified
professionals.
3.2
Security:
The Department,
together with other relevant structures should advise on the security
threats, if any, that might exist should the
offender be released out
on parole.’
[4]
Aggrieved by the decision, the respondent launched application
proceedings in the court a quo on 4 June 2015. He sought the
review
and setting aside of the decision, an order in terms of s 8(2) of the
Promotion of Administrative Justice Act 3 of 2000
(PAJA) placing him
on parole with immediate effect on such conditions as the court
deemed appropriate under s 65 of the Correctional
Services Act 8 of
1959 (the 1959 Act) and ancillary relief. The respondent raised a
number of review grounds. He alleged, inter
alia, that the minister’s
recommendation of a further profile in 12 months’ time could
not be given effect because
the deceased’s family refused any
contact with him and the Department of Correctional Services (the
department) was unwilling
or unable to facilitate a victim and
offender dialogue. Moreover, it was ultra vires and showed bias and
mala fides as it rendered
his release dependent on the deceased’s
family.
[5] It
was also alleged that the minister failed to consider all the
relevant facts and circumstances including that the respondent
was
rehabilitated as he had complied with prison rules, showed remorse,
completed all programs offered by the department, was apolitical
and
accepted the new democratic dispensation. The minister also failed to
apply the 1959 Act and the policy and guidelines applicable
thereunder,which were in force when the murder was committed, as he
ignored the recommendations of the National Council for Correctional
Services and the Parole Board. And the respondent was discriminated
against because his case was treated as a political matter
whereas he
was an ordinary offender. Thus the decision was materially influenced
by errors of law and fact, irrelevant considerations
were taken into
account and relevant considerations were ignored and the decision was
not rationally connected to the purpose for
which it was taken, the
purpose of the empowering law, the information before the minister
and the reasons given for it.
[6]
Lastly, the respondent alleged that he was not furnished with the
representations made by the deceased’s wife (Mrs Hani)
in a
victim impact statement which was attached to his application
documents submitted to the minister. In his view, the representations
were deliberately removed from his profile either before the record
was served on his attorneys or before the record was referred
to the
minister for his decision. In either case the mala fide intention was
to deny him due process and indicated bias, so he
contended. He was
accordingly deprived of an opportunity to respond to the
representations, if so advised. Thus a mandatory and
material
procedure was not complied with. This amounted to a reviewable
procedural irregularity and thus vitiated the decision,
so it was
argued.
[7] The
minister denied the allegations of bias and incompetence as well as
the arguments that the result was a foregone conclusion
or that there
was a possibility of delay if the matter was remitted for his
reconsideration. He explained that he had followed
the proper
procedure in making the decision. He stated that he was not furnished
with the victim impact statement. In his view,
the respondent was not
prejudiced by the victim representations as he did not consider them
in making the decision. But he stated
that they would only have
bolstered his refusal to place the respondent on parole had they been
placed before him.
[8] On
10 March 2016, the court a quo decided the matter in the respondent’s
favour and granted the relief sought. Thus, the
decision was set
aside and orders were made placing the respondent on parole and
remitting the matter to the minister to impose
the necessary parole
conditions within 14 days of the date thereof. The court a quo’s
judgment was based on the finding that
the minister’s decision
was neither reasonable nor rational. In the court’s view, the
decision overemphasised the nature
of the crime committed by the
respondent and the remarks of the sentencing court (which harshly
criticised it) and failed to balance,
fairly and equally, all the
criteria for parole selection which it was satisfied the respondent
met.
[9] The
court a quo found that referring the matter back to the minister for
the reconsideration of the respondent’s application
would cause
unnecessary delay to the respondent’s prejudice whereas all the
relevant facts which informed the decision and
placed it in as good a
position to determine the matter as the minister were before it. The
court was convinced by the respondent’s
contentions that the
minister’s decision was, in any event, a foregone conclusion
because (a) of the refusal by the deceased’s
family to forgive
the respondent despite his repeated attempts to apologise to them and
their consistent opposition to his release
and (b) he had shown bias
by stating that representations made by the deceased’s family
opposing the respondent’s release,
which had not been placed
before him when he made the decision, would have only fortified his
decision not to grant parole. On
the strength of these findings, the
court a quo decided that a substitution order granting parole was
just and equitable relief.
[10] In
written submissions filed by the parties on appeal before us, the
essence of the dispute and the parties’ respective
contentions
remained unchanged. The respondent’s eligibility for placement
on parole under the transitional provisions of
136(1) of the
Correctional Services Act 111 of 1998 (the Act)
[5]
was common cause between them. It was
also not in dispute that that the guidelines contained in Chapter VI
of the Correctional Services
B-Order, commonly referred to as the
Parole Board Manual, particularly the ‘Criteria for Parole
Selection’ set out
in Chapter VI(1A)(19) thereof, are to be
applied in the consideration of the placement on parole of offenders
in the respondent’s
position. The essential issue was whether
the minister applied these criteria properly when he made the
decision.
[11] According
to the appellant, the court a quo misunderstood its role and failed
to distinguish between the appeal and review
processes. As a result,
the court impermissibly concerned itself with whether the minister
was right in concluding that the negative
factors militating against
the respondent’s placement on parole outweighed those favouring
his placement on parole. Instead,
the court should only have
determined whether the decision was one that a reasonable
decision-maker could reach by striking a reasonable
balance between
the competing factors in favour and against the respondent’s
placement on parole. Moreover, the court a quo
unlawfully replaced
the exercise of the minister’s discretion concerning the
respondent’s placement on parole with
its own value judgment
and usurped his functions as the decision-maker in violation of the
doctrine of separation of powers, so
it was contended. The
respondent, on the other hand, persisted that the decision was
rightly
reviewed
because it was not supported by the information placed before the
minister, as was the minister’s refusal of the
application to
accomodate restorative justice which was clearly impossible in the
circumstances.
[12] As
a result of an exchange with counsel just before the hearing of the
appeal, the parties were given leave to file further
written
arguments. This was to enable them to address questions which they
had not envisaged during the preparation for the appeal
(seemingly
because the relevant legal point was not pursued at the hearing a
quo) namely; (a) whether the minister’s
omission to
consider the victim impact statement gave rise to a procedural
irregularity in the decision-making process; (b) if
it did, whether
it constituted a reviewable procedural irregularity; and (c) if it
did, what a just and equitable order would be
under s 172(1) of the
Constitution
[6]
read with s 8 of PAJA.
[7]
[13]
At the subsequent hearing it was forcefully argued for the respondent
that the decision fell to be reviewed as an irregularity
under s 6(2)
of PAJA
[8]
because the minister
was biased and failed to comply with a mandatory and material
procedure when he made it. It was conceded on
the minister’s
behalf that factually a procedural irregularity had occurred albeit
that it did not constitute a material
deviation amounting to a ground
of review. The minister’s half-hearted concession was, in my
view, correct. And the procedural
irregularity began when the parole
board submitted the respondent’s profile for the minister’s
consideration on the
basis of information, which included the victim
impact statement submitted to it, without affording the respondent an
opportunity
to respond thereto. It was completed when the minister
made the decision without considering those representations because
they
were not placed before him as he alleged – a version I am
bound to accept on the basis of
Plascon-Evans
.
[9]
The only question is
whether the omissions constituted a reviewable procedural
irregularity under PAJA, having regard to the purpose
of the victim
representations.
[14]
The relevant test is trite
[10]
and was
recently reiterated in
AllPay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African Social Security Agency &
others
.
[11]
There the
court, dealing with questions of procedural fairness and lawfulness
in a procurement matter, said:
‘
To
the extent that the judgment of the Supreme Court of Appeal may be
interpreted as suggesting that the public interest in procurement
matters requires greater caution in finding that grounds for
judicial review exist in a given matter, that misapprehension
must be
dispelled. So too the notion that, even if proven irregularities
exist, the inevitability of a certain outcome is a factor
that should
be considered in determining the validity of administrative action.
This
approach to irregularities seems detrimental to important aspects of
the procurement process. First, it undermines the role
procedural
requirements play in ensuring even treatment of all bidders. Second,
it overlooks that the purpose of a fair process
is to ensure the best
outcome; the two cannot be severed. On the approach of the
Supreme Court of Appeal, procedural requirements
are not considered
on their own merits but instead through the lens of the final
outcome. This conflates the different and separate
questions of
unlawfulness and remedy. If the process leading to the bid’s
success was compromised, it cannot be known with
certainty what
course the process might have taken had procedural requirements been
properly observed.
Once
a ground of review under PAJA has been established there is no room
for shying away from it. Section 172(1)
(a)
of
the Constitution requires the decision to be declared unlawful. The
consequences of the declaration of unlawfulness must then
be dealt
with in a just and equitable order under s 172(1)
(b).
Section 8 of PAJA gives detailed legislative content to the
Constitution’s “just and equitable” remedy.’
[15]
Our courts have, under common law, also been under caution to guard
against the possible blurring of the distinction between
procedure
and merit for the same reason, articulated as follows:
‘
Procedural
objections are often raised by unmeritorious parties. Judges may then
be tempted to refuse relief on the ground that
a fair hearing could
have made no difference to the result. But in principle it is vital
that the procedure and the merits should
be kept strictly apart,
since otherwise the merits may be prejudged unfairly.’
[12]
[16]
Summed up, the principles are the following. The inevitability of a
certain outcome is not a factor to be considered in determining
the
validity of the decision. Therefore, neither party may argue that the
consideration of the victim impact statement by the minister
would
make no difference. The proper approach is rather to establish,
factually, and not through the lens of the final outcome,
whether an
irregularity occurred. Then the irregularity must be legally
evaluated to determine whether it amounts to a ground of
review under
PAJA. In this exercise the materiality of any deviance from the legal
requirements must be taken into account, where
appropriate, by
linking the question of compliance to the purpose of the provision
before concluding that a review ground under
PAJA has been
established. So, if the process leading to the decision was
compromised, it cannot be known with certainty what the
administrator
would have finally decided had the procedural requirements been
properly observed.
[17]
In terms of
s 299A
of the
Criminal
Procedure Act 51 of 1977
,
[13]
when a court sentences a person to
imprisonment for, inter alia, murder, it shall inform any immediate
relative of the deceased,
if he or she is present that he or she has
a right, subject to the directives issued by the Commissioner of
Correctional Services,
inter alia, to make representations when
placement of the prisoner on parole is considered. This right is
echoed in s 75(4) of
the Act which provides:
‘
Where a ...
relative is entitled in terms of the
Criminal Procedure Act, to
make
representations or wishes to attend a meeting of a [Parole] Board,
the National Commissioner must inform the Board in question
accordingly and that Board must inform the ... relative in writing
when and to whom he or she may make representations.’
And
where the Case Management Committee submits a report, together with
the relevant documents, to the Correctional Supervision
and Parole
Board (the parole board) regarding the possible placement of a
prisoner on parole in terms of
s 42(2)
(d)(
vii)
of the Act, that prisoner must be informed of the contents of the
report and be afforded the opportunity to submit written
representations to the parole board under s 42(3) of the Act. After
considering the report and, in the light of any other information
(which includes a relative’s victim impact statement),
[14]
the parole board may, in the case of
a prisoner serving life incarceration, make recommendations to the
minister on granting of
parole in terms of s 75(1)
(c)
of the Act.
[15]
It is clear from these provisions
that all relevant information ie the full record of the proceedings,
must be considered for a
proper decision on the placement of a
prisoner on parole. The victim impact statement and the
representations in response thereto
by the prisoner seeking parole
unquestionably form a substantive requirement in that process.
[18] In
the affidavit containing Mrs Hani’s victim representations, she
alleged that the information in the respondent’s
application
was incomplete because various essential documents ie portions of his
trial record, portions of his application to
reopen his trial, his
application for amnesty to the Truth and Reconciliation Commission
(the TRC) and his application to review
the TRC’s decision, had
not been furnished to the parole board. The respondent never
apologised or showed any genuine contrition
for the murder. He
continued to withhold the full truth about the murder, including the
identities of the other conspirators, which
he once threatened to
divulge to the media, had given contradictory accounts about who
exactly was involved in the crime and refused
to denounce his
political beliefs which he claimed motivated the murder.
[19] As
indicated, none of these profound allegations were considered by the
minister when the decision was made. Neither were they
brought to the
respondent’s attention for his consideration and one simply
does not know what answers, if any, he may have
given had he been
granted that opportunity. In that case
the
minister’s assertion that the victim impact statement ‘would
have further militated against the [respondent’s]
placement on
parole’ is obviously misguided. It overlooks that he would have
had to consider the respondent’s representations
as well and
that it is unknown what impact they would have had on the decision.
And by the same token, his decision if the matter
is remitted for his
reconsideration cannot be a foregone conclusion. That said,
the
omissions constitute a fatal procedural irregularity, due regard
being had to the governing statutory injunctions set out above.
They
constitute a breach of s
6(2(
b
)
of PAJA
as
a mandatory and material procedure or condition prescribed by an
empowering provision was clearly not complied with.
[20] Having
thus found, it is unnecessary to deal with the merits of the appeal.
The only question is what would be a just and equitable
remedy in the
circumstances. Both parties were adamant that the matter should not
be remitted; the minister’s argument being
that the decision
was sound whereas the respondent raised the same concerns expressed
by the court a quo ie bias and incompetence
on the minister’s
part, that his decision is a foregone conclusion and the court’s
ability to substitute the decision
on the information at its
disposal. I am not persuaded by any of the parties’ submissions
in this regard. In my view the
respondent’s fears are more
perceived than real as they have no basis on the papers. I have
already rejected the contention
that the minister’s decision is
a foregone conclusion in the absence of the respondent’s
representations. And for that
very reason, this Court is not in a
position to substitute its own decision. In the words of Megarry J in
John v Rees
[1970] Ch 345
;
[1969] 2 All ER 274
(CH) at 402:
‘
As everybody
who has anything to do with the law well knows, the path of the law
is strewn with examples of open and shut cases
which, somehow, were
not; of unanswerable charges which, in the event, were completely
answered; of inexplicable conduct which
was fully explained; of fixed
and unalterable determinations that, by discussion, suffered a
change.’
Regarding
delay, the minister made it clear that he would be in a position to
decide the matter within a short period were
it remitted for
his reconsideration. There is simply no evidence of bias on his part
or an inability to make a reasonable decision
other than a
miscomprehension of the relevant law which required him to consider
the respondent’s representations too.
[21] In
my view, the matter should be remitted to the minister for a fresh
decision regarding whether the respondent should be placed
on parole,
taking into account Mrs Hani’s victim impact statement dated 30
October 2013 and the respondent’s response,
if any, thereto.
Counsel for the minister indicated that he would be in a position to
finalise the matter within 90 calendar days
of the date of this order
in that eventuality. I consider this a reasonable period. I am
however not inclined to mulct the respondent
with the costs of the
appeal despite the minister’s success, because the procedural
irregularity was not of his doing. In
any event, the minister did not
insist on a costs order. I do not propose to deal with the
submissions on the respondent’s
so-called changed circumstances
which his counsel made from the Bar as they have no foundation in the
appeal record and bear no
relevance for present purposes.
[22] It
remains to determine whether it was open to this Court, in the first
place, mero motu to raise the legal point as neither
party relied
upon
i
t
and
it
was
also not addressed in the court a quo’s judgment. The direction
requiring further argument on the issue was based solely
on this
Court’s prima facie view that Mrs Hani’s victim impact
statement, which was part of the appeal record, contained
information
that was highly relevant to the decision and should have been
considered in the making thereof.
[23] The
duty of an appellate court is to ascertain whether the court a quo
came to a correct conclusion on the case before it.
[16]
Its role is generally limited to
deciding issues that are raised in the appeal proceedings and it may
not, on its own, raise issues
which were not raised by the appellant.
However, where a point of law is apparent on the papers (even where
it has been expressly
abandoned) but the common approach of the
parties proceeds on a wrong perception of the law, and its
consideration on appeal would
involve no unfairness to the party
against whom it is directed, the court is not only entitled,
but is also obliged,
mero motu, to raise the point of law and
require the parties to deal therewith.
[17]
Otherwise it would be bound to make a
decision that is premised on an incorrect application of the law,
despite the accepted facts,
merely because a party failed to raise
the legal point, as a result of an error of law on his part.
[18]
That would infringe the
principle of legality.
[19]
[24] As
appears above, the existence of the victim impact statement, its
relevance to the making of the decision and the legal contention
that
the respondent was not given an opportunity to consider its contents
and respond thereto, if he was so minded, were common
cause and were
pertinently raised in the affidavits. The
legal
point ie the procedural fairness of the manner in which the decision
was made,
raises no new
factual issues; there is, therefore, no possibility that its
consideration would
result in unfairness to any of the parties
.
[20]
Accordingly, this Court was entitled
mero motu to raise the legal point and to require argument thereon.
[25]
In the result the following order is made:
1 The appeal
is upheld with no order as to costs.
2 The
matter is remitted to the appellant for his reconsideration and
decision within 90 calendar days of the date of this order.
____________________
MML MAYA
PRESIDENT
APPEARANCES
For the
Appellant: Mr
MTK Moerane SC (with TWG Bester SC)
Instructed by: The State Attorney,
Bloemfontein
For the
Respondent: Mr R Du Plessis SC
(with L Kellermann)
Instructed by: Julian Knight &
Associates Inc, Pretoria
Rossouw Attorneys, Bloemfontein
[1]
Mr Clive Derby-Lewis, who is now
deceased.
[2]
Mr Derby-Lewis was also
sentenced to death for the murder and five years’ imprisonment
for the illegal possession of a firearm
and unlawful possession of
ammunition, which were taken together for purposes of sentence.
[3]
Following upon
S
v Makwanyane & another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) which outlawed capital punishment. This
decision declared the death sentence, in terms of s 277(1)(
a
),
(
c
),
(
d
),
(
e
)
and
(f)
of
the
Criminal Procedure Act 51 of 1977
and all corresponding
provisions of other legislation in any part of the national
territory in terms of s 229 of the Constitution
of the Republic of
South Africa Act 200 of 1993, which sanctioned capital punishment,
unconstitutional and accordingly
invalid.
[4]
The respondent had
previously been considered for placement on parole in June 2011.
That application was also unsuccessful.
[5]
Which apply to offenders whose
death sentences were commuted to life incarceration (
Van
Vuren v Minister of Correctional Services & others
2012
(1) SACR 103
(CC);
2010 (12) BCLR 1233
(CC)
)
and read: ‘[a]ny
person serving a sentence of incarceration immediately before the
commencement of Chapters IV, VI and VII
is subject to the
provisions of the Correctional Services Act, 1959 (Act 8 of 1959),
relating to his or her placement under community
corrections and is
to be considered for such release and placement by the Correctional
Supervision and Parole Board in terms
of the policy and guidelines
applied by the former Parole Boards prior to the commencement of
those Chapters.’
[6]
The provisions read:
‘
(1)
When deciding a constitutional matter within its power, a court –
(a)
must declare that any
law or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency;
and
(b)
may make any order
that is just and equitable, including –
(i)
an order limiting the
retrospective effect of the declaration of invalidity; and
(ii)
an order
suspending
the declaration of invalidity
for
any period and on any conditions, to allow the competent authority
to correct the defect.’
[7]
Which provides:
‘
(1)
The court or tribunal, in proceedings for judicial review in terms
of section 6(1), may grant any order that is just and equitable,
including orders–
(a)
directing the
administrator–
(i)
to give reasons; or
(ii)
to act in the manner the
court or tribunal requires;
(b)
prohibiting the
administrator from acting in a particular manner;
(c)
setting aside the
administrative action and–
(i)
remitting the matter for
reconsideration by the administrator, with or without directions; or
(ii)
in exceptional cases–
(aa)
substituting or varying the
administrative action or correcting a defect resulting from the
administrative action; or
(bb)
directing the administrator or
any other party to the proceedings to pay compensation;
(d)
declaring the rights
of the parties in respect of any matter to which the administrative
action relates;
(e)
granting a temporary
interdict or other temporary relief; or
(f)
as to costs.’
[8]
The section reads:
‘
(2)
A court or tribunal has the power to judicially review an
administrative action if –
(a)
the administrator who took it –
(i)
was not authorised to do so by the empowering provision;
(ii)
acted under a delegation of power which was not authorised by an
empowering provision; or
(iii)
was biased or reasonably suspected of bias;
(b)
a mandatory and material
procedure or condition prescribed by an empowering provision was not
complied with;
(c)
the action was procedurally
unfair;
(d)
the action was materially
influenced by an error of law;
(e)
the action was taken –
(i)
for a reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv)
because of the unauthorised or unwarranted dictates of another
person or body;
(v)
in bad faith; or
(vi)
arbitrarily or capriciously;
(f)
the action itself –
(i)
contravenes a law or is not authorised by the empowering provision;
or
(ii)
is not rationally connected to –
(aa)
the purpose for which it was taken –
(bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reason given for it by the administrator;
(g)
the action concerned consists of
a failure to take a decision;
(h)
the exercise of the power or the
performance of the function authorised by the empowering provision,
in pursuance of which the
administrative action was purportedly
taken, is so unreasonable that no reasonable person could have so
exercised the power or
performed the function; or
(i)
the action is otherwise unconstitutional or unlawful.’
[9]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-635.
[10]
See, for example,
Administrator,
Transvaal & Others v Zenzile & others
1991
(1) SA 21
(A) at 37C-F;
Logbro
Properties CC v Bedderson NO & others
2003
(2) SA 460
(SCA) paras 24-25.
[11]
AllPay Consolidated
Investment Holdings (Pty) Ltd & others v Chief Executive
Officer, South African Social Security Agency
& others
2014 (1) SA 604
(CC) paras
23-25.
[12]
Wade
Administrative
Law
6 ed (Oxford
University Press, New York 1988) at 533-4.
[13]
Inserted by
s 6
of the
Judicial
Matters Second Amendment Act 55 of 2003
.
[14]
Derby-Lewis v Minister
of Correctional Services & others
2009
(6) SA 205
(GNP) at 218A.
[15]
See also s 78 (1) and (4) of the
Act, incorporated on 31 July 2004, which expressly incorporate
restorative justice in the consideration
of parole.
[16]
Cole v Government of the
Union of SA
1910 AD
263
at 272.
[17]
CUSA v Tao Ying Metal
Industries
[2008] ZACC 15
;
2009 (2)
SA 204
(CC);
2009 (1) BCLR 1
(CC);
[2009] 1 BLLR 1
(CC) para 68.
[18]
Van Rensburg v Van Rensburg
en andere
1963 (1) SA
505
(A) at 510A;
Alexkor
Ltd & another v The Richtersveld
Community
& others
[2003] ZACC 18
;
2004 (5) SA 460
(CC) paras 43-44.
[19]
Paddock Motors
(Pty) Ltd v Igesund
1976
(3) SA 16
(A) at 23D-H;
Carmichele
v Minister of Safety and Security
(Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) paras 33-39.
[20]
Paddock Motors (Pty)
Ltd
ibid;
Alexkor
Ltd & another v The Richtersveld Community & others
[2003] ZACC 18
;
2004 (5) SA 460
(CC) paras 43-44.