In South Africa, subject to certain exceptions, the Promotion of Administrative Justice Act governs administrative action taken by an organ of the state exercising a power in terms of the Constitution.

In the case of Chairman, PSC & Ors v ZIMTA & Ors 1996 (1) ZLR 91 (S), the majority of the court found that as the legislative authority had been given to the Public Service Commission by the Constitution and had not been delegated by Parliament, the court had no power and authority to enquire into the reasonableness of the legislation passed by this body. This approach has been heavily criticised. See The Reviewer “A retreat of judicial review” 1996 Vol. 8 No. 3 Legal Forum 11. The author of this article points out, amongst other things, that the approach of the majority of the Supreme Court has “opened the door for the executive to establish executive organs under the Constitution with a view to ruling by decree in complete disregard to reasonableness, justice and fairness.”

The constitution was later amended to remove the law making power of this body.

In the case of Movement for Democratic Change and Another v Chairperson of the Zimbabwe Electoral Commission and Others (E/P 24/08) [2008] ZWHHC 1 (14 April 2008) the MDC had sought an order compelling the Commission to announce the long delayed results of the presidential election. The Commission maintained that it had a legally valid reason for not releasing the results timeously. This was that it had become necessary to have a recount of some of the votes.

The Electoral Court decided that the Administrative Justice Act does not apply to decisions taken by the Electoral Commission. This Commission is established in terms of the Constitution is not an administrative body for the purposes of this Act. The actions of this independent constitutional body are only open to challenge on a very limited basis. The clear intention of the Legislature in Section 61 (5) of the Constitution was to ensure the Commission’s independence provided it was operating within the law.

The Commission’s decision to recount and the extent thereof is not subject to an appeal means that it was intended to act independently and that its decision would be final. The provision barring an appeal simply means the Commission has been given a very wide discretion as to whether or not to order a recount. The provision that Commission’s decision is not be subjected to an appeal also means this court cannot inquire into that decision. The Commission’s conduct is only open to the jurisdiction of this court when it strays from the law.

The reason proffered by the Commission for their failure to timeously announce the presidential results is legally valid. It can therefore justify the delay. The Commission had not strayed from the law. This court is therefore not entitled to intervene and order the respondents to announce the results on the basis of failure to comply with the law.