A critical analysis of self-review through the lens of transformative adjudication

Abstract

This dissertation seeks to answer the question whether a critical analysis of the Constitutional Court’s judgment in State Information Technology Agency SOC Limited v Gijima Holdings (Gijima CC), with reference to a method of judicial reasoning known as transformative adjudication and the related concepts of judicial deference and variability, reveals that the Promotion of Administrative Justice Act 3 of 2000 (PAJA) ought to be the basis of review in cases where the state applies for the review of its own administrative action. Section 33(3)(a) of the Constitution stipulates that national legislation must be enacted to provide for the judicial review of a particular type of public power called administrative action. The legislation thus enacted is PAJA. Therefore, one would expect that PAJA is the appropriate basis of review in cases where the state applies for the review of its own administrative action. However, in Gijima CC the Constitutional Court held that the state is not a bearer of administrative justice rights in terms of section 33 of the Constitution. Consequently, the state may not apply for the review of its own administrative action under PAJA, the statute giving effect to section 33 of the Constitution. The principle of legality, which imposes less rigorous standards of scrutiny than PAJA, is now the only basis of review available in so-called “self-review” cases. This dissertation critiques the reasoning of the Constitutional Court and considers the broader impact of its decision in Gijima CC through the lens of transformative adjudication. Furthermore, this dissertation argues that PAJA ought to be applied in cases where the state reviews its own administrative action and that the concepts of judicial deference and variability allow for ample flexibility in the application of PAJA during judicial review, including self-reviews.