One of the most crucial decisions that legal practitioners (and indeed their clients) have to make is whether, in instituting a judicial review, they rely directly on the provisions of the Promotion of Administrative Justice Act, 2000 (PAJA), the constitutional principle of legality or both. This choice is particularly important in circumstances where there may have been a delay in instituting review proceedings and legal practitioners are alive to the 180-day rule expounded in s7(1) of PAJA. A short survey of the body of case law suggests that most practitioners are likely to rely on both, in the alternative.
Unlike under the legality review, where an application for review must be initiated without undue delay, s7(1) of PAJA requires a judicial review to be instituted without unreasonable delay and not later than 180 days. In addition, the court may, on application, grant an extension of the 180-day period under s9(1)(b) of PAJA.
Under a legality review, the courts have the power, as part of their inherent jurisdiction to regulate their own proceedings, to refuse a review application in the face of an undue delay. However, there are no express, legislated time periods in which the review must be launched nor any requirement that a formal application for condonation be brought if there is undue delay in launching a review.
The logical question that follows is that, if PAJA applies, does a litigant have a choice to initiate a review under its provisions or bypass it, and formulate its cause of action as a legality challenge? The majority judgment of State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA) held that where PAJA applies, litigants and the courts are not entitled to bypass its provisions and rely directly on the constitutional principle of legality. The majority was of the view that the proper place for the principle of legality in our law is to act as a safety net or a measure of last resort when the law allows no other avenues to challenge the unlawful exercise of public power. It cannot be the first port of call or an alternative path to review, when PAJA applies. This question was left open in City of Cape Town v Aurecon South Africa (Pty) Ltd 2017 (4) SA 223 (CC).
The appeal in the Gijima case was recently argued in the Constitutional Court, so it is hoped that the court will provide the much-needed clarity. In the interim, legal practitioners still have hard decisions to make when instituting a review in cases where PAJA applies.