Browsing by Author "Tabata, Nandile Ndiviwe"

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Looking back at Gijima: The evolution of self-review in South African administrative law
(University of the Witwatersrand, Johannesburg, 2023-02-27) Tabata, Nandile Ndiviwe; Hoexter, Cora
In State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC), the Constitutional Court held that the Promotion of Administrative Justice Act 3 of 2000 could not be relied on by organs of state who seek to review their own decisions and affirmed the principle of legality as the appropriate pathway for state self-reviews. The court suggested that the applicability of the principle of legality in self-reviews does not necessarily extend to cases concerning the judicial review of a decision of an organ of state by another organ of state or when self-reviews are instituted in the public interest in terms of s 38(d) of the Constitution. Gijima is a controversial judgment that has attracted considerable criticism from practitioners and scholars. The widespread criticism relates to the proliferation of PAJA-avoidance, the bifurcation between PAJA and the principle of legality and the judgment’s dilution of the delay rule. This Research Report reflects on the development of self-review in South African administrative law before Gijima; how self-review has evolved since the ground- breaking judgment; and how the courts have in subsequent judgments dealt with the murkiness caused by Gijima. The Research Report concludes that, on the face of it, Compcare Wellness Medical Scheme v Registrar of Medical Schemes 2021 (1) SA 15 (SCA) is a promising solution for the reform of self-review in South African administrative law. The Research Reportalso concludes that legislative intervention may be necessary to make the PAJA more widely applicable in self-review cases