Ultra vires decisions

Clearly, if an administrative tribunal decides a matter upon which it has no power to decide or, having made its decision, makes an order which it does not have the power to make, it will be acting ultra vires and its decision or order, as the case may be, will be set aside on review.


In the case of Laurence v Verhoef & Ors NNO 1993 (2) SA 328 (W). Where a decision is taken by a judicial or quasi-judicial authority for reasons which are in part legitimate and in part illegitimate, the decision should be set aside on review where the authority was substantially influenced by the illegitimate reasons.


For a discussion of the ultra vires doctrine, see the later section on the ultra vires doctrine. Some relevant cases are these: Kaplan v Salisbury Liquor Licensing Court 1951 (4) SA 223 (SR); Clan Transport Co v Swift Transport Services (Pty) Ltd 1956 (3) SA 480 (FS); Troake v Salisbury Bookmaker’ Licensing Committee 1971 (2) RLR 118 (A) 121; Kambasha Bros & Anor v Thompson NO & Anor 1970 (2) RLR 97; 1971 (1) SA 155 (SR); Tabakian v DC, Salisbury 1973 (2) RLR 348; 1974 (1) SA 604 (R); Caterers & Entertainers (Pvt) Ltd v City of Salisbury 1974 (2) RLR 65 (G); 1974 (4) SA 515 (R); Quintas v Controller of Customs & Excise 1976 (1) RLR 208 (G); Mwayera Bazaars v Liquor Licensing Board 1979 RLR 9 (G); Golden Dragon Restaurant v Liquor Licensing Board GS-230-78; Hayes v Director of Security Manpower GS-102-79; Archipelago Ltd v Liquor Licensing Board 1986 (1) ZLR 146 (H); Dabengwa v Minister of Home Affairs HH-244-86; Mutambara & Ors v Minister of Home Affairs 1989 (3) ZLR 96 (H);  Minister of Home Affairs v Austin & Harper 1986 (1) ZLR 240 (S); 1986 (4) SA 281 (ZS); PF ZAPU v Minister of Justice, Legal and Parliamentary Affairs 1985 (2) ZLR 305 (S); Secretary of State v Management Board of Thameside [1977] AC 1014; CCSU v Ministry of Civil Service [1984] 3 All ER 935 (HL) at 951; Nyokong v Western Transvaal Bantu Administration & Anor 1975 (1) SA 212 (T) and Johannesburg Local Road Motor Transportation Board v David Morton Transport 1976 (1) SA 887 (A).



Sub-delegation of decision-making power


Where the legislature delegates the power to make a decision to an administrative official or body the question arises whether that official or body is entitled to sub-delegate this power to some other administrative official or body. In order to discover the answer to this question, the legislation in question will need to be examined in order to discover the intention of the legislature. The question will be: did or did not the Legislature intend that the power be sub-delegated? Usually, the intention in this regard will not be expressly stated and here the implied intention of the Legislature will have to be discovered. Various criteria will be taken into account in deciding whether sub-delegation is permissible. For instance, sub-delegation would not have been envisaged where the Legislature had delegated the power to make a decision requiring special expertise to an administrative official who had that expertise. If the decision that needs to be made is complex and will have far-reaching consequences, it will probably be implied that no sub-delegation was envisaged. On the other hand, if the decision was purely mechanical or was of a petty nature and many such decisions need to be made, it may well have been envisaged that, if the delegate is a high-ranking official like a Minister, he would be permitted to sub-delegate to civil servants in his Ministry the power to make such decisions.


In Cargo Carriers (Pvt) Ltd v Zambezi & Ors1996 (1) ZLR 613 (S) the court said that while it is normal for Ministers, to whom statutory powers and duties are given, to delegate the exercise of those powers and duties to responsible officials in their departments, this does not apply where the Minister is given responsibility of exercising a discretion which the nature of the subject matter and the language of the Act show can only be properly exercised in a judicial spirit.


Unreasonable decisions


   Traditional view


The traditional view of the function of the review court in administrative matters is that the review court should not to delve into the substantive correctness of administrative decisions, but only to ascertain whether there have been any procedural irregularities or action of an ultra vires nature. From this view would follow the proposition that the review court has no power to overturn a decision simply because it considers it to be unreasonable. If it did have this power, it would in effect be substituting its own decision in place of the decision of the body empowered to make this decision.


   Symptomatic unreasonableness


However, in the past the courts have been prepared to set aside decisions on the basis of what is known as symptomatic unreasonableness. In terms of this doctrine, the courts have the power to set aside a decision if it is so grossly unreasonable that it can only be explained on the grounds that the decision was made in bad faith or because of fraud, or that there was an ulterior motive or the decision-maker failed to apply his mind to the decision.




In Zimbabwe, the courts have in several cases adopted the Wednesbury test, namely, that the decision will be reviewable if the decision is so outrageous in its defiance of logic or accepted standards that no reasonable person who has applied his mind to the question to be decided would have arrived at that decision. See PF (ZAPU) v Minister of Justice 1985 (1) ZLR 305 (S); Rushwaya v Minister of Local Government S-6-87 and Affretair v MK Airlines 1996 (2) ZLR 15 (S).


In the case of Marawa v Minister of Transport2000 (2) ZLR 225 (S) the Board of the Civil Aviation Authority appointed to the post of General Manager a person who had no qualifications or experience in the field of aviation in preference to a person who had such qualifications and experience (the appellant). The advertisement for this job required applicants to have a professional qualification in civil aviation or a related field. This was entirely reasonable given the technical and specialist area involved. The court set aside the decision of the Board was on the basis that it was irrational. It was irrational to lay down qualifications and then choose a person for the job a person who does not meet these qualifications and to reject a person who had the required qualifications. It did not mean, however, that the appellant should now automatically be appointed. There were other applicants and it may be that one of these candidates might be more qualified and suitable than the appellant.


In the case of Dube v Chairman PSC (1990) it was observed that the power to review proceedings on the grounds of irrationality of the decision must not be confused with an appeal against the decision’s merits.


There are also many Zimbabwean decisions laying down that a decision can be set aside if it is grossly unreasonable. See, for instance, Zambezi Proteins (Pvt) Ltd & Ors v Minister of Environment & Tourism & Anor (1996) and Silver Trucks (Pvt) Ltd & Anor v Director of Customs and Excise (2) 1999 (2) ZLR 88 (H)



   Reasonable foundation


The courts in Zimbabwe have also ruled that they can investigate whether the facts relating to the exercise of a discretion were reasonably capable of supporting the action taken (this approach is sometimes referred to as the reasonable foundation or substantial evidence rule), see Minister of Home Affairs v Austin &Anor 1986 (1) ZLR 240 (S); 1986 (4) SA 281 (ZS). In this case, the validity of the Minister’s decision to detain two persons was under challenge. The test applied to decide this issue was whether there were sufficient facts upon which that sort of decision could reasonably be based. (This test applied, said the court, even though the official is allocated a subjective discretionary capacity.) In his judgment, the Chief Justice referred to the case of Secretary of State v Management Board of Thameside [1977] AC 1014 where this sort of approach was adopted. Under this approach, the court is able to exercise meaningful control over administrative power, without arrogating to itself the capacity to make a decision that it is the responsibility of an administrative official to make. Essentially, what the court will do is to check that there was a reasonable foundation for the decision i.e. were there proper facts upon which that sort of decision could have been arrived at?


   Simple unreasonableness


In recent times, there has been a movement towards allowing the courts to interfere with administrative decisions on the grounds that the decisions are unreasonable (rather than grossly unreasonable or so grossly unreasonable that they point to others things such as bad faith.) In South Africa, it is now provided in s 33(1) of the SA Constitution that all persons are entitled to decisions which are reasonable. This provision has been interpreted in the case of Roman v Williams NO (1998). The court decided that this constitutional protection is wider than the common law and that under this constitutional provision, the courts are no longer confined to examining only the way in which decisions are reached; they were now entitled to look into the substance and merits of administrative decisions. Decisions can now be examined objectively to determine whether the decisions are justifiable in relation to the reasons given and are proportional.


The Law Development Commission of Zimbabwe has made recommendations regarding the issue of unreasonableness in its final report entitled Administrative Decisions (August 1997). At pp 17-19 of this report, the Commission points out the various approaches towards unreasonableness in administrative decision-making. Having looked at these the Commission concludes that an administrative decision should be reviewable if it is so unreasonable that no reasonable person would have made that decision. Under this approach, the court would not interfere with a decision simply because the court might have arrived at a different decision. The court will only interfere if the decision was so unreasonable that no reasonable person would have arrived at that decision.

In African Tribune Newspapers (Pvt) Ltd & Ors v Media & Information Commission & Anor 2004 (2) ZLR 7 (H) the High Court said that unreasonableness has an extremely limited, even an insignificant, role as a ground of review in our law. Judicial review is concerned not with the correctness of the decision but with the decision-making process. A review court can only set aside a decision if it is satisfied that the decision was so grossly unreasonable that no reasonable person applying his mind to the facts before him would have come to that conclusion. This case obviously predates the coming into operation of the Administrative Justice Act. These observations should therefore not be treated as a correct statement of the position now that the Administrative Justice Act has come into operation. In that Act one of the grounds for review is the unreasonableness of the decision. As had been stated above, the decision can be set aside if the decision is so unreasonable that no reasonable person would have made that decision. Even before the coming into operation of the Administrative Justice Act at least gross unreasonableness was a recognised ground for setting aside a decision.



Unreasonable delays in making decisions


Members of the public can be severely inconvenienced or prejudiced by the failure by public authorities to make decisions affecting those persons within a reasonable period of time.


In order to overcome this problem, the Law Development Commission of Zimbabwe recommended in its final report entitled Administrative Decisions (August 1997). It recommended firstly that there should be a right to have public officials arrive at decisions within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to make the decision by the person concerned. These recommendations have been incorporated into the Administrative Justice Act. In terms of s 4(2)(c) of that Act any person who is aggrieved by an administrative authority’s undue delay in making a decision can apply to the High Court for relief and the court will have the power to direct that the administrative authority arrive at a decision within the relevant period specified by law or, if no such period is specified, within a period fixed by the court.