Judicial review of administrative and executive decisions: Overreach, activism or pragmatism? – pg. 201.
The right to administrative action that is lawful, reasonable and procedurally fair is guaranteed under the South African Constitution (section 33). The Promotion of Administrative Justice Act (PAJA) was promulgated to give effect to this constitutional right. Its provisions, however, do not apply to executive decisions. Rather, executive decisions are subjected to a constitutional review in terms of the rule of law and its related principle of legality, which is traditionally accepted as a much less exacting standard than that imposed by PAJA. The rationale for this exclusion of executive decisions from administrative review, it is surmised, is to give effect to the doctrine of separation of powers which is implicit in the Constitution. This doctrine recognises that the State must be afforded sufficient power to govern effectively while at the same time a system of checks and balances ensures that abuse of power by any one organ of government is avoided. It is argued in this article, through an analysis of relevant case law, that the application of two standards of judicial review for administrative action on the one hand and executive decisions on the other, is inappropriate within the South African constitutional dispensation. Without derogating from the importance of maintaining and respecting the doctrine of separation of powers it appears that the courts apply a greater number of PAJA review principles to the review of executive decisions, thus diluting the distinction between the two standards of review. Although the judiciary has been frequently criticised for allegedly overreaching its powers and stepping into the terrain of the executive, it is argued that the reasoning of the courts is indicative of the respect that the judiciary is able to maintain for the doctrine of separation of powers without losing sight of the oversight role they it is meant to play.