ADMINISTRATIVE LAW is that body of laws that must be observed by the State and the agents of the State.
You have been hearing quite a lot about criminal law because frequently the newspapers inform the public of cases that have been decided by the Magistrate Courts and the High Court. When the Court of Appeal meets, depending on the interest to the public, cases are highlighted in the newspapers.
Not many cases from the civil court are highlighted, because these are matters between private individuals. Only in rare instances would a matter be discussed. In addition to matters involving property, matrimonial issues and breach of contract, the civil courts deal with matters pertaining to administrative law. The state and state agencies must observe administrative law of the land. Administrative law is that body of laws which governs the action of the State and State agencies. An aggrieved person could apply by way of an originating motion for relief under the constitution, or for a declaration against a public officer or any public body, or for judicial review.
Judicial Review is that instrument which may be used by any person in a court of law to seek a certiorari, which is the quashing of an unlawful act of government or governmental agents or a mandamus to compel the government to perform a duty that it had refused to perform or to prohibit an unlawful act. The law provides for an administrative order to be granted if a party is successful. It also provides for a person to obtain an injunction, restitution or damages or the return of property as the case might be.
Leave to start judicial review
A person who intends to make an application for judicial review must first obtain leave of the Court. A judge could give leave without a court hearing. If leave is granted it would indicate that the applicant has “an arguable case and a realistic chance of success and the matter will proceed. The cases for judicial review before the court have been varied. Applications have been made for wrongful dismissals and wrongful transfers among others. There are many precedents in this area, but the court has always relied on the grounds set down in the classical case of Council of Civil Service Union v Minister for the Civil Service. In that case Lord Diplock set out three grounds on which judicial review must be based, namely illegality, irrationality and procedural impropriety.
The judge would weigh the affidavit evidence of the parties against these and decide if there were any illegality, irrationality and procedural impropriety to determine whether judicial review could be granted.
Lord Diplock’s Grounds
Lord Diplock explains what is meant by “illegality”. For this he thought that the judge must look to the law to determine whether the decision maker had made a decision that was not in accordance with the law. For “irrationality” he describes this as “unreasonableness” as given in the case of Associated Provincial v Wednesbury Corp (1947) another celebrated case. For him the decision must be “so outrageous in its defiance of logic or of accepted moral standards that no person who had applied his mind to the question to be decided could arrive at it.” Procedural impropriety does not always have to be about natural justice but about whether the decision maker followed certain procedure. Most important is the test that the applicant must have an arguable case and a realistic chance of success. Whether there is a delay or alternative remedy could also be considered.
Ada Johnson is a solicitor and barrister-at-law. E-mail address is: [email protected]