Procedures and Remedies

Question 1

What does PAJA s 7(2)(a) require before approaching court?

Answer 1

That any internal remedy provided for in another law must first be exhausted.

Question 2

When can a court exempt a person from exhausting internal remedies under PAJA?

Answer 2

In exceptional circumstances and in the interests of justice (s 7(2)(c)).

Question 3

What are the three key criteria for evaluating internal remedies?

Answer 3

Availability, effectiveness, and adequacy.

Question 4

Which case emphasised the need for internal remedies to be effective and accessible?

Answer 4

Koyabe v Minister of Home Affairs.

Question 5

According to Koyabe, what makes an internal remedy ineffective?

Answer 5

Obstruction, administrative failures, or systemic issues that hinder its use.

Question 6

What are exceptions to exhausting internal remedies as noted in Koyabe?

Answer 6

(a) Prejudice to future court action, (b) Ineffectiveness, (c) Bias or predetermined outcome.

Question 7

What did the court decide in Basson v Hugo (2018)?

Answer 7

That actual or perceived bias of committee members justified immediate judicial intervention.

Question 8

What qualifies as exceptional circumstances under s 7(2)(c)?

Answer 8

Circumstances like bias, mala fides, or when internal remedies cannot provide effective relief.

Question 9

What was the issue in Nichol v Registrar of Pension Funds?

Answer 9

Whether there were exceptional circumstances requiring bypassing internal remedies.

Question 10

Does a student found guilty by a university Proctor have the right to appeal?

Answer 10

Yes, through a ‘wide appeal’ process involving both review and appeal grounds.

Question 11

What is the clemency route for plagiarism sanctions at university?

Answer 11

An appeal to the Vice-Chancellor after Senate Review Panel rejection.

Question 12

What does the South African Schools Act provide for expelled learners?

Answer 12

They may appeal to the MEC within 14 days of receiving notice of expulsion.

Question 13

Who hears appeals for expelled school learners under the Schools Act?

Answer 13

The Member of the Executive Council (MEC).

Question 14

What appeal rights do school governing body members have?

Answer 14

They may appeal suspension/termination to the MEC.

Question 15

Why might pursuing an internal remedy be futile?

Answer 15

If the internal process is tainted by bias, lacks jurisdiction, or cannot redress the harm.

Question 16

What section of the Constitution supports access to courts if rights are infringed?

Answer 16

Section 38 and Section 34 of the Constitution.

Question 17

In Basson v Hugo, why was internal appeal deemed invalid?

Answer 17

Because the bias affected the entire committee process, making appeal futile.

Question 18

Under PAJA, what must courts ensure before hearing a judicial review application?

Answer 18

That internal remedies have been exhausted, unless exceptional circumstances exist.

Question 19

What does ‘exceptional circumstances’ depend on?

Answer 19

The nature of the complaint and whether internal remedies can adequately address it.

Question 20

What section of the Social Assistance Act governs appeals against Agency decisions?

Answer 20

Section 18.

Question 21

What does PAJA s 7(1) require for review proceedings?

Answer 21

That review must be brought without unreasonable delay and within 180 days.

Question 22

When does the 180-day period begin if there is an internal remedy?

Answer 22

After all internal remedy proceedings have been concluded.

Question 23

When does the 180-day period begin if there is no internal remedy?

Answer 23

When the person became aware or should reasonably have become aware of the decision and reasons.

Question 24

Is the 180-day period under PAJA the only time limit?

Answer 24

No. Reviews must also be brought without unreasonable delay, which could be shorter than 180 days.

Question 25

What does PAJA s 9 allow for?

Answer 25

Extension (or reduction) of the 180-day or 90-day periods if the interests of justice require it.

Question 26

What must an applicant show for a s 9 extension?

Answer 26

(a) Full explanation for delay; (b) Coverage of the entire delay; (c) Reasonableness of the explanation.

Question 27

What section of the Constitution is relevant to time limits and access to courts?

Answer 27

Section 34 – right to a fair public hearing.

Question 28

What was held in Associated Institutions Pension Fund v Van Zyl about delay?

Answer 28

Delay may prejudice the respondent and violates public interest in finality of administrative decisions.

Question 29

What is the twofold rationale for the delay rule?

Answer 29

(1) Prejudice to the respondent, and (2) the need for finality in administrative actions.

Question 30

What did SANRAL v City of Cape Town add to condonation criteria?

Answer 30

That the merits of the review are also a critical factor when deciding condonation.

Question 31

What two questions must the court ask when reviewing a delay?

Answer 31

(1) Was there unreasonable delay? (2) Should it be condoned in the interest of justice?

Question 32

What factors may justify condonation of delay?

Answer 32

Prejudice to others, explanation for delay, nature of decision, complexity, and merits.

Question 33

Can time limits under PAJA be extended by agreement?

Answer 33

Yes, under s 9(1), but it's rare. More commonly, courts decide based on interests of justice.

Question 34

What case confirmed that internal remedies delay the start of the 180 days?

Answer 34

Koyabe v Minister of Home Affairs.

Question 35

According to Koyabe, what makes an internal remedy valid?

Answer 35

It must be available, effective, and adequate.

Question 36

What is the maximum period to bring a judicial review under PAJA?

Answer 36

180 days, unless extended by court under s 9.

Question 37

Is “unreasonable delay” the same as exceeding 180 days?

Answer 37

No. A delay can be unreasonable even within 180 days, depending on the case.

Question 38

What does “reasonable delay” depend on?

Answer 38

The circumstances of the case and a value judgment by the court.

Question 39

Why is it important to act promptly, even within 180 days?

Answer 39

Because the delay might still be found unreasonable and not in the interests of justice.

Question 40

What documents are important for the procedure of review?

Answer 40

The court designation and the Administrative Review Rules under PAJA section 7.

Question 41

What does PAJA s 8(1) provide for?

Answer 41

That courts may grant any order that is just and equitable in judicial review proceedings under s 6(1).

Question 42

Name at least 3 specific remedies listed in s 8(1).

Answer 42

(i) Setting aside, (ii) Remitting for reconsideration, (iii) Substitution, (iv) Compensation, (v) Temporary relief, (vi) Costs.

Question 43

What does PAJA s 8(2) apply to?

Answer 43

Judicial review under s 6(3), where an administrator fails to take a decision.

Question 44

What is the default remedy for unlawful administrative action?

Answer 44

Setting aside the action and remitting the matter to the administrator.

Question 45

What is meant by “setting aside” an administrative action?

Answer 45

The decision is declared invalid and has no legal force or effect.

Question 46

What does "remittal" mean under s 8(1)(c)(i)?

Answer 46

Sending the matter back to the administrator to reconsider the decision.

Question 47

Under what section can a court substitute its own decision?

Answer 47

Section 8(1)(c)(ii)(aa) – in exceptional cases.

Question 48

Is substitution the norm in judicial review?

Answer 48

No. It is exceptional and courts usually remit decisions.

Question 49

What case outlined the court’s limits in substituting decisions?

Answer 49

Gauteng Gambling Board v Silverstar Development Ltd.

Question 50

Why do courts usually defer to administrators rather than substitute?

Answer 50

Administrators have expertise, access to evidence, and institutional competence.

Question 51

What are the 4 guiding factors for substitution from common law?

Answer 51

(1) Court as competent as the administrator, (2) Foregone conclusion, (3) Delay causes prejudice, (4) Bias/incompetence of administrator.

Question 52

What case formally articulated the 4 substitution factors?

Answer 52

Johannesburg City Council v Administrator Transvaal.

Question 53

What did Trencon v IDC say about substitution?

Answer 53

That institutional competence and foregone conclusion must be assessed first, followed by fairness.

Question 54

What is the first step in the substitution enquiry per Trencon?

Answer 54

Determine whether the court is as well positioned as the administrator.

Question 55

What is the second step in the substitution enquiry per Trencon?

Answer 55

Assess whether the outcome is a foregone conclusion.

Question 56

When may a court grant compensation under s 8(1)(c)(ii)(bb)?

Answer 56

In exceptional cases, if just and equitable.

Question 57

What did Intertrade Two v MEC say about substitution?

Answer 57

The court must have proper information and be institutionally competent—minimum rule of law requirement.

Question 58

What was the key issue in Silverstar regarding substitution?

Answer 58

The court was as competent as the Board and the outcome was inevitable.

Question 59

What equitable consideration justified substitution in Silverstar?

Answer 59

Delay, objectivity lost, and public interest in finalising the matter.

Question 60

Why did the Constitutional Court substitute in Trencon despite a 2-year delay?

Answer 60

Because the delay had no factual basis in the appeal record and the merits clearly favoured substitution.

Question 61

What must courts avoid when considering substitution on appeal?

Answer 61

Introducing new facts not part of the record from the lower court.

Question 62

What public interest consideration was relevant in Trencon?

Answer 62

The cost of further delay to the public purse and need for finality in procurement.