An assessment of the delay rule in judicial reviews by organs of state seeking to review their own administrative acts

Abstract

This dissertation argues that applying a flexible delay rule to self-reviews of administrative acts under the principle of legality facilitates enhanced state accountability and contributes to upholding the rule of law. This flexibility is particularly important amidst allegations of widespread corruption and maladministration in South Africa that necessitate strong accountability mechanisms. Public functionaries are granted express power to participate in commercial transactions in the public interest. When this power is exercised unlawfully, the state has an opportunity to remedy its unlawful administrative acts through the court process of judicial review. The delay rule requires judicial reviews to be instituted without unreasonable delay. Courts must pronounce on the issue of delay prior to considering the unlawfulness of a public act. After defining the delay rule in the context of self-reviews, this study compares the delay rule set out in the Promotion of Administrative Justice Act (PAJA) with the delay rule under the principle of legality. Through case law, this research establishes that the PAJA delay rule is applied rigidly by courts. This rigidity has led to courts dismissing self-reviews after finding that a public functionary's review application was instituted unreasonably late and the delay could not be overlooked in terms of PAJA. The dismissal has meant that the impugned public act was neither declared unlawful nor set aside, undermining accountability and the rule of law. This study finds that the application of a less strict delay rule under legality in self-reviews enables courts to declare public acts in contravention with the Constitution unlawful notwithstanding an unreasonable delay in pursuit of accountability and the rule of law.