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.