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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.

Justified in dissenting?

Background

In a previous article we commented on whether a Judge is justified in dissenting if she or he believes the majority is wrong or whether they are not being team players.

The reason for the article was the questions asked of Owen Rogers at the Judicial Services Commission when he applied for a position on the Supreme Court of Appeal bench.

His response was that he believed that senior Courts should be cautious and where a Judge believes the majority are erring, they should be free to disagree.

De Klerk v Minister of Safety and Security

De Klerk had been arrested, wrongfully, and taken to court, where the magistrate mechanically postponed the matter without considering bail. He was detained without bail and then released when the charges were withdrawn.

In the Supreme Court of Appeal, the majority held that the period of detention after he appeared in court could not be considered unlawful and awarded him damages for period up to when he appeared in court for the first time. Rogers AJA (with Leach JA concurring) disagreed and indicated that he would have awarded damages for the entire period of detention, regardless of the actions of the magistrate when he postponed the matter.

Constitutional Court

De Klerk then approached the Constitutional Court.

Theron J, writing for the majority (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring, with Cameron J writing his own concurring judgement), essentially agreed with Rogers AJA and Leach JA.

The majority found that the subsequent detention after the first appearance in court was causally linked to the wrongful arrest and nothing in the mechanical approach taken by the magistrate in postponing the case was reason to render the subsequent detention too remote from the initial arrest.

Interestingly Froneman J, Goliath J, Mhlantla J and Mogoeng CJ all dissented.

Dissenter becoming the team player

So, far from the criticism levelled at him at the Judicial Services Commission, it would seem that Judge Owen Rogers was justified in his disagreement and the ultimately the rest of the team (or the majority of it) agreed with him.

This case should put to rest the view that Judges are ‘team players’. They are meant to be independent and apply the law to the best of their ability, even if that means upsetting others, including fellow Judges.