Deference in South African Administrative Law

Guest Blogger

For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law

Geo Quinot

In post-apartheid, democratic South Africa, a notion of judicial deference towards administrative decision-making has become something of a mantra for review courts. However, there has been very little coherence in the courts’ invocation of deference either in the way it has been applied or justified. Deference continues to have a notable impact on review outcomes, but with considerable contestation regarding its basis, supposed effect and doctrinal role.

The notion of deference was authoritatively established in South African administrative law in the 2004 Constitutional Court judgment of Justice O’Regan in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs. Deference had entered South African administrative law four years earlier via a highly influential journal article by leading South African administrative-law scholar, Cora Hoexter. In it, she called for the development of “an appropriate theory of deference” in light of the fundamental shifts in South African administrative law and judicial review following the adoption of the democratic South African Constitution in 1996. Pre-democratic administrative law was premised purely on common law within a system of parliamentary supremacy. In stark contrast, the democratic Constitution replaced Parliamentary supremacy with constitutional supremacy, introduced a justiciable right to administrative justice and a right to judicial review in the Bill of Rights and granted courts wide-ranging powers to review all law and conduct, whether private or public, against the Constitution and declare it invalid if found to be inconsistent with the Constitution.  The new administrative law that emerged from this new constitutional dispensation differed in important respects from the preceding common-law paradigm. Administrative law (and judicial review) was now squarely rights based. As the Constitutional Court recognized in its important Pharmaceutical Manufacturers judgment, “Courts no longer have to claim space and push boundaries to find means of controlling public power. That control is vested in them under the Constitution which defines the role of the courts, their powers in relation to other arms of government, and the constraints subject to which public power has to be exercised.” Administrative law now functioned within the broader legality doctrine, which, according to the Constitutional Court in Fedsure, essentially holds that “the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.” Administrative law also became largely codified, by means of the Promotion of Administrative Justice Act (PAJA). In addition to the familiar common-law rules of procedural fairness applicable to agency adjudications in individual cases, PAJA also introduced prescripts for the procedures followed when taking administrative decisions impacting on the rights of the public, implying that agency rule-making was also subject to judicial review under the Act.

As Hoexter pointed out, this was a very different context for judicial review than before. The democratic legitimacy of the new administration and the constitutional framework in which it functioned, cautioned against “unbridled judicial activism”, which was vigorously advocated by anti-apartheid lawyers prior to constitutionalization. The new dispensation called for “a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; to accord their interpretations of fact and law due respect; and to be sensitive, in general, to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate.” As framed by Hoexter, deference in this conception captured both deference to agency exercise of discretion and deference to interpretative questions.

This conception of deference was enthusiastically and wholescale adopted by South African courts, primarily in the context of review of agency adjudications in individual cases, but not exclusively since South African administrative law does not draw a bright line between agency adjudication and rule-making, recognizing both as “administrative action” under PAJA. However, contrary to Hoexter’s call for a debate that could lead to the development of a theory or doctrine of deference to guide judicial “intervention and non-intervention”, the courts have simply cut and pasted her description as expressing the principle of deference. The work that this “principle” has done in particular cases has varied significantly as has the justification offered by courts for invoking it. In Logbro Properties CC v Bedderson NO, for example, the court employed deference to determine the appropriate standard for review under the banner of fairness in the context of “polycentric decision-making” when it had to determine which factual considerations were relevant for the agency to take into consideration. In Associated Institutions Pension Fund v Van Zyl, the court pointed to “the training, skills, experience and intricacies involved in the application of actuarial science” in the impugned decision as justifying deference when reviewing substantive choices. In Minister of Defence and Military Veterans v Motau, the court referred to deference as part of its determination of the justiciability of the impugned decision under administrative law and placed particular emphasis on the policy dimension of the decision at hand as a key factor in such determination. And returning to the foundational judgment in Bato Star Fishing, the court noted that the wide discretion granted to the agency in the empowering legislation necessitated judicial deference when reviewing the exercise of that discretion, particularly on the grounds of reasonableness. That is, the court held that where the legislature granted wide discretion to the agency, such as to “have regard to” stated factors in taking a decision, a court should go no further than ensuring that the agency, in fact, has taken account of the stated factors and “struck a reasonable equilibrium between them”. If this is so, the court should show deference to the agency’s (policy) choice of how exactly to strike the balance. In essence, it is up to the agency to fill the statutory gap left by the broad terms in which the agency mandate is formulated. In Bato Star Fishing, the court furthermore explicitly aligned deference to the “constitutional principle of the separation of powers”. It reasoned that deference simply amounts to a recognition of the distinctive roles of the courts and executive respectively within the Constitution. In accepting this justification for deference, the court was in this regard ostensibly influenced by the British House of Lords judgment in R (on the application of ProLife Alliance) v British Broadcasting Corporation. There, Lord Hoffmann questioned the appropriateness of the term deference in describing the relationship between the courts and other branches of state within the separation of powers. Canadian conceptions of deference have also been quite influential in South Africa. Both Hoexter in her article and subsequently Justice O’Regan in Bato Star relied on Dyzenhaus’s work relating to “deference as respect” in the context of Canadian courts’ treatment of administrative determinations of law. However, the South African courts have not been particularly clear in respect of deference to interpretative questions. In Marshall v Commissioner, SARS, the Constitutional Court held that “a unilateral practice of one part of the executive arm of government” cannot “play a role in the determination of the reasonable meaning to be given to a statutory provision”. The court thus rejected reliance on an interpretative note by the Revenue Service regarding a provision of its statutory mandate. This statement does not necessarily deny deference to agency interpretations as it seemingly focused on the first step in the Chevron test, viz whether there is ambiguity in the legislative text with regard to the issue at hand. However, South African courts have not intentionally followed the two-step approach of Chevron and it is accordingly not always clear whether remarks such as these speak only to the initial determination of the statute’s meaning or to the entire interpretative question.  

From the South African judgments, it seems that deference is used a variety of ways, including deference to agency findings of fact, deference to agency interpretation of its statutory mandate, and deference to policy decisions, with very little coherence between the different uses. All of them are simply subsumed under the label, ‘deference’. As for the basis for deference, expertise and constitutional roles (particularly with reference to the separation of powers) are the main justifications offered.

Across most case law, the transformative intent of the South African Constitution seems to play an important role. This is especially true of decisions dealing with deference (whether explicitly or not) to agencies’ statutory interpretation leading to particular decisions under review in individual cases. It seems that courts are generally inclined to adopt an interpretative approach to statutory mandates that aligns with the Constitution’s transformative agenda, typically under the rubric of purposive interpretation. Courts thus impute a transformative intent to empowering provisions, whether explicitly stated in the statute or not, as part of its interpretative exercise. Based on such interpretation, the review court will typically allow an agency a wide margin of appreciation with respect to the agency’s interpretation, as long as it is broadly aligned with the imputed transformative intent. This is achieved by either finding that the statute has a clear transformative intent and that the agency adhered to this clear meaning of its mandate (i.e., no interpretative deference is called for), or that the statute is not precise and that the agency’s transformative interpretation is a reasonable one. Unlike the Chevron test, these two steps are not always clearly differentiated in South African case law. Rather than relying on open-ended, neutral interpretative deference, the courts thus seem to use constitutional transformation as the parameters within which to show deference to agencies. Bato Star may itself be viewed as an example. The case turned on the meaning of the phrase “have regard to” in the objects clause of the statute when exercising regulatory power under that statute.  In assessing the agency’s approach to issuing fishing quotas under the statute, the court adopted a particularly deferential approach towards the agency’s interpretation of what “have regard to” requires. In particular, the court readily accepted the agency’s interpretation of and thus approach to what the statute demands in respect of addressing historical inequalities in the fishing industry as one of ten objectives. Reading the two majority judgments handed down in the case, one is left in no doubt that the pursuit of constitutional transformation played a key role in the court’s light-touch approach to the agency’s choices.  Along this route, deference is not simply a methodological tool, but in fact a mechanism that imports substantive normative requirements, sourced in the Constitution, into administrative decision-making.

The relationship between deference in this guise and other constructs in administrative law is, however, not clear. Many of these other constructs may be seen to do the same work as deference. For example, the constitutional requirement that all administrative action be lawful, as part of the fundamental right to administrative justice in section 33 of the Bill of Rights, has been interpreted to require agencies to not only adhere to their statutory mandates (in a classic ultra vires sense), but also to the broader constitutional framework within which all administrative action is taken. This mechanism allows courts to intervene in cases where agencies do not advance constitutional transformation, while protecting those that do from intervention. Various grounds of review listed in the Promotion of Administrative Justice Act can achieve the same purpose. For example, under the Act an agency’s decision may be reviewed if it was taken for an ulterior purpose or motive (section 6(2)(e)(ii)), which is a distinct ground of review from taking a decision for a reason not authorized by the empowering provision (section 6(2)(e)(i)). Under this review ground, courts can frame what purpose or motive would be ‘ulterior’ outside of the strict confines of the empowering provision, including with reference to the broader constitutional framework. Similarly, an administrative action may be reviewed under the Act if the agency did not take all relevant considerations into account (section 6(2)(e)(iii)). This allows review courts to frame what is relevant in any case, creating space for inserting constitutional imperatives as relevant considerations.

In framing the relationship between courts and administrators in South Africa, the concept of deference has brought expertise and institutional roles within the constitutional design explicitly to the surface in judicial review proceedings. The latter arguably goes beyond traditional separation of powers concerns to include attention to all state organs’ role in constitutional transformation. However, unlike deference in the context of the United States, there is no differentiation between different forms of deference in South Africa. The result is a lack of attention to the justification for distinct forms of deference, such as to agency findings of fact, to agency statutory interpretation or to policy decisions. It is also not clear when deference can (or should) be relied upon as a free-standing doctrine in review proceedings as opposed to an underlying principle informing established doctrinal rules. Judicial reliance on deference in South African administrative law thus remains a fairly ad hoc affair. 

Geo Quinot is Professor in the Department of Public Law at Stellenbosch University, South Africa. Email: gquinot@sun.ac.za.