In the recent Constitutional Court case of Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO and Others [2019] ZACC 36 the Court dealt with the issue of what to do with invalid administrative action.
The main judgement dealt with the Oudekraal rule, which states that an unlawful administrative act exists in fact until such time as it is set aside, in the context where the administrative act purported to override an existing lawful right. Clearly, it could not do so and the Court held in favour of the existing right holder.
However, there was a difference of opinion between the main judgement and the concurring judgement, in that the concurring judgement favoured qualifying the Oudekraal rule to provide for a rebuttable presumption which could be rebutted without any court process. The main judgement did not favour this, finding that a court should set aside invalid action.
There is an obvious theoretical basis for this, in that it discourages self-help and brings certainty. However, there are practical problems with the approach adopted by the main judgement. Firstly, there is the substantial cost to engaging in litigation, which the vast majority of private citizens cannot afford. The reality is that insisting that the courts be approached before obviously unlawful administrative action can be set aside means that many will have to live with the consequences of that unlawful action because they cannot afford the legal costs.
The second issue is that the court rolls are already overloaded and the legal system is becoming suffocated to the extent that relatively simple disputes can take years to resolve. While an unopposed application to set aside an administrative act can take a matter of a few weeks, as soon as it opposed it will take months. It doesn’t take a lot for one of the parties to be able to postpone the matter for months or years. In the meantime the unlawful action remains in force.
This is one of several situations where the legal theory is not in tune with what happens in practice. For the average citizen, this can have serious repercussions which make the rights contained in the Constitution illusory for many.