Order 33 sets out the procedure for bringing a decision of an administrative authority. This is by way of court application directed at the chairperson of the administrative body or the administrative officer and all other parties affected. The notice of motion must state shortly and clearly the grounds on which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. The applicant must establish his or her cause of action in his or her founding affidavit. The applicant must also be careful to establish his or her locus standi in the affidavit. See Stevenson v Minister of Local Government and National Housing & Ors 2001 (1) ZLR 321 (H).
If the administrative action was ultra vires the enabling Act, the court will declare the action to be null and void and can set it aside. See cases cited by Baxter pp 678-681.
Where natural justice has been violated by the administrative authority the High Court will normally refer the matter back and order that the administrative authority first comply with natural justice before deciding upon what action it will take.
If no hearing has taken place in violation of the audi alteram partem principle, the court will order the administrative authority to consider the matter after holding a hearing. If a hearing has taken place but the procedures used violated principles of natural justice, the court will set aside the decision and refer the matter back for a rehearing, usually with directions as to how the administrative authority must conduct the rehearing so as to comply with the principles of natural justice.
In exceptional circumstances the High Court may substitute its own decision for the decision that should have been taken by the administrative authority. The factors that the High Court will take into account in deciding whether to substitute its own decision are–
- the end result is a foregone conclusion and a referral back to the administrative authoritywould be a waste of time;
- the court is in as good a position as the tribunal or official to make the decision itself;
- further delay would cause unjustifiable prejudice to the applicant;
- the tribunal or official has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again.
Where an administrative authority has failed to take administrative action within the period specified by law, the High Court can direct the administrative authority to take administrative action within the relevant period specified by law.
If there is no period specified by law for taking the administrative action, the administrative authority must take the action within a reasonable period of time and if it fails to do so, the court can order it to take the action within a period fixed by the court.
If the administrative authority fails to supply reasons for its action within the period specified by law, the High Court can direct the administrative authority to supply reasons within the period specified by law.
If the law does not specify the period within which reasons are to be supplied, but an unreasonable period of time has elapsed without reasons being given, the court can direct the administrative authority to supply reasons within a period fixed by the Court.
The High Court is given the power to make such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with its obligation to render administrative justice.
Directions may include directions not only directions as to the manner or procedure that the administrative authority should adopt in arriving at its decision, but also directions to ensure compliance by the administrative authority with the relevant law or empowering provision.
This can be used to prevent the threatened commission or continued commission of an unlawful act such as an unlawful arrest, see Bull v Minister of State (Security) & Ors 1987 (1) SA 422 (ZH) at 426-427; Gosschalk v Roussow 1966 (2) SA 466 (C) and Wood & Ors v Ondangwa Tribal Authority 1975 (2) SA 294 (A).
A final interdict will only be granted if–
- the applicant has a clear legal interest;
- the right has been infringed or there is a reasonable possibility that the rights may be infringed;
- there is no other appropriate legal remedy available; and
- the applicant will suffer irreparable harm if the interdict is refused.
This remedy can be used to require an administrative authority to perform a mandatory statutory duty imposed upon it that it is wrongly refusing to perform, or to require the authority to correct the effects of its unlawful administrative action.
A court will only order an administrative authority to take action where it has a clear statutory duty to take that action and has no discretion in this regard. If the authority has a discretion whether or not to take action, the court may not grant a mandamus ordering it to take action. However, the court may order the authority to exercise its discretion where it is failing to do so. See Baxter Administrative Law p 691 and Tsvangirai & Anor v Registrar-GeneralHH-36-02 at pp. 2-3.
The essential requirements for a mandamus are–
- a clear and definite right;
- an injury actually inflicted or reasonably apprehended; and
- the absence of a similar protection by any other ordinary remedies.
See Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 315 (S.)
See also Minister of Home Affairs v York & Anor 1982 (2) ZLR 48 (S); 1982 (4) SA 496 (ZS); Crow v Detained Mental Patients Special Board 1985 (1) ZLR 202 (H); 1985 (4) SA 175 (ZH); Bull v Minister of State (Security) & Ors 1987 (1) SA 422 (ZH)
This private law action can also be used in the field of public law to obtain restoration of some item, such as a passport, where there has been unlawful dispossession of the item by the public authority, see Donges NO v Dadoo 1950 (2) SA 321 (A).
Habeas Corpus(Interdict de libero homine exhibendo)
The main purpose of this action is to bring under review the lawfulness of the detention of a person.
Section 50(7) of the Draft Constitution provides as follows:
If there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order—
(a) of habeas corpus, that is to say an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiring the whereabouts of the detained person to be disclosed; or
(b) declaring the detention to be illegal and ordering the detained person’s prompt release;
and the High Court may make whatever order is appropriate in the circumstances.
Various Supreme Court cases have laid down that this remedy is only applicable in respect of situations of detention without trial where a pre-requisite of a valid order of detention ab initio has not been observed. If the initial detention was valid but some mandatory procedure following detention has not been observed, such as that the detention order must be reviewed within a specified period of time, then the correct remedy is a mandamus to oblige the authority to carry out the mandatory procedure
See Mandirwhe v Minister of State 1981 (1) SA 759 (ZS) and Minister of Home Affairs & Anor v Dabengwa 1984 (2) SA 345 (ZS) This remedy will only be granted in cases of detention if a pre-requisite for a valid detention is not observed from outset: Bull v Attorney-General 1986 (1) ZLR 117 (S) and Van Wyk v Chief Intelligence Officer, Matabeleland North & Ors S-101-86.
See also In re Willem Kok & Anor (1879) 9 Buch 45; Ganyile v Minister of Justice 1962 (1) SA 647 (E).
There can be an appeal against a decision by High Court not to grant this remedy See Minister of Home Affairs & Anor v Dabengwa 1984 (2) SA 345 (ZS).
The court can be approached in advance of potential action by an administrative authority in order for the court to rule on the legality of that action. The declaratory order can be used in order for the court to determine the scope of a statutory duty or the rights of a person in relation to a public authority. The public authority itself can bring this action.
The court will simply declare whether the right or duty exists and/or what the scope is of the duty.
Before the courts will grant such an order there must be a clear legal dispute or legal uncertainty about validity or effect of administrative action.
In MDC v President Republic of Zimbabwe & Ors 2007 (1) ZLR 257 (H) the court stated that The power of the High Court to issue declaratory orders is one of the inherent powers that this court has as a Superior Court and which inherent power has been put beyond doubt by provisions of section 14 of the High Court Act [Chapter 7:06].
For a declaratory order the applicant must show that–
- it is an interested person;
- there is a right or obligation which becomes the object of the inquiry;
- it is not approaching the court for what amounts to a legal opinion upon an abstract or academic matter;
- there must be interested parties upon which the declaration will be binding; and
- considerations of public policy favour the issuance of the declarator.
The court reiterated that a person seeking a declaration of rights must set forth his contention as to what the alleged right is. The contention must refer to a legal right and not the factual basis upon which a right is based.
See also Bulawayo Municipality v Bulawayo Indian Sports Ground Committee 1956 (1) SA 34 (SR); Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) Ltd 1969 (2) RLR 120; 1969 (3) SA 142 (R); Ex parte Farquhar 1938 TPD 213; Ex p Nell 1963 (1) SA 754 (A)
Baxter pp 702-704 points to the strategic importance of this remedy. He says this remedy has become increasingly popular and that it is particularly useful for the following reasons–
- It is a less confrontational remedy as it “does not require the parties to do or refrain from doing any specific act, and because it does not directly upset action already undertaken”. It is a more gentle remedy as it enables the parties to adjust their respective positions with less appearance of compulsion. Where a court authority “wishes to avoid inflicting upon the public authority indignity of an interdict, it may simply declare the unlawfulness of the action in question and leave it to the authority to correct the act in whatever manner is necessary to correct the situation.
- It is particularly useful where the scope of the authority of the public authority is unclear and requires judicial interpretation. A declaratory order will settle the matter and avoid a potential dispute in the future. It can be settled in a more amicable or less authoritative way. This is especially important where the conduct of an individual could be construed as criminal and the person wants to ascertain his or her potential liability in advance.
- The courts may be prepared to assume jurisdiction to grant this remedy when they would not have jurisdiction to issue a coercive order.
- This order may be sometimes obtained more expeditiously than any other remedy.
Baxter further points out at p 701-702 that in South Africa, although the courts still refuse to permit declarations concerning purely abstract or hypothetical cases, the courts have shown a tendency to expand the scope of declaratory orders with some judges saying that the scope of this remedy must be liberally construed.
In Zimbabwe the courts have adopted a narrow approach to locus standi and the courts are likely to adopt a similarly restrictive approach to the scope of the declaratory order.
Where a person has suffered financial loss as a result of unlawful action by a public authority the person affected will obviously wish to claim damages for his loss.
Where there has been a breach of a statutory duty by a public authority the primary question is whether the statute was intended to create a civil right of action. The breach of statutory duty allows a person affected thereby to sue if–
- he has suffered damage as a result of such breach;
- he is one of the persons for whose benefit the duty was imposed;
- the harm caused was within the mischief contemplated by the statute;
- the statute has not expressly or impliedly excluded the ordinary civil remedy; and
- the breach of the statute was the proximate cause of the loss.
See Salisbury Bottling Ltd v Central African Bottling Ltd 1958 (1) SA 750 (FS).
Where the defendant is a public authority carrying out a function authorised by statute it will not be liable for harm caused by carrying out this function provided that it acts without negligence. There may, however, be immunities contained in the empowering legislation for harm negligently inflicted. For the principles that will be applied to decide such a claim, see Knop v Johannesburg City Council 1995 (2) SA 1 (A).