 
  WORLD TRADE  
ORGANIZATION  G/ADP/AHG/W/165 
18 October 2004 
 (04-4363) 
Committee on Anti-Dumping Practices 
Working Group on Implementation Original:   English 
 
 
 
ARTICLE 13 – JUDICIAL, ARBITRAL OR ADMINISTRATIVE REVIEW 
 
Paper by South Africa  
 
 
 The following communication, dated 11 October 2004, is being circulated at the request of the Delegation of South Africa.  
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Legislative framework in South Africa 
 
 Prior to 1994 (first democratic election) the Supreme Court in South Africa had an inherent 
power to review administrative action on various  common-law grounds.  However, while the courts 
could review the lawfulness of an administrative act ion, Parliament was free to decide what counted 
as lawful and what did not, and no court of law c ould enquire into or pronounce upon the validity of 
an Act of Parliament in relation to its content.  The doctrine of parliamentary supremacy was therefore 
a deep-seated constraint on the common-law review powers of the Supreme Court.    
 South Africa entered a new era of administrativ e law with the enactment of the Constitution. 
The right to just administrative action is guaranteed in Section 33 of the Constitution of the Republic 
of South Africa, 1996.  Since the implementati on of the Constitution, public power has been 
controlled by the said Constitution, which is the supreme law of South Africa.     The Promotion of Administrative Justice Act, Ac t 3 of 2000, (PAJA) gives effect to the right 
to administrative action that is lawful, reasonable and procedurally fair and to the right to written 
reasons for administrative action as contemplated in Section 33 of the Constitution.  This law constitutes important checks and balances on the operation of the administration.  
  The International Trade Administration Act,  Act 71 of 2002, (ITA Act) is the enabling 
legislation for the International Trade Administ ration Commission of South Africa (ITAC) to conduct 
trade remedies investigations.  Section 46(1) of the ITA Act provides that a person affected by a 
determination, recommendation or decision of ITAC, may apply to a High Court for a review of that 
determination, recommendation or decision.  Sectio n 46(2) of the ITA Act further provides that the 
High Court may, in a review, make an order for the payment of costs against any party or against any 
person who represents a party in the proceedings , according to the requirements of the law and 
fairness.   In terms of Section 47(1) of the ITA Act the Supreme Court of Appeal or the Constitutional Court has jurisdiction to hear an appeal against a decision of a High Court in respect of a review 
application. 
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  PAJA contains the provisions for the Courts to review an administrative action in South 
Africa.  An action will qualify as administrativ e action under PAJA if it is a decision of an 
administrative nature that is made in terms of an  empowering provision, not specifically excluded by 
the list of exclusions in the Act, made by an organ of State or by a private person exercising a public 
power that adversely affects the rights of an indivi dual or the public.  A decision taken in terms of the 
ITA Act is a decision capable of review under PAJA. 
 
Grounds on which Judicial Review Action can be taken 
 
 Section 6 of PAJA clearly sets out the grounds on which administrative action can be 
reviewed.  In judicial reviews the courts focus more on the way a decision was made and not 
necessarily the merits of that decision.  The courts will only do a qualitative assessment of the 
administrative action under review, on any ground, if the administrative action is irrational or so 
unreasonable that no reasonable person could have reach ed that decision.  The courts can intervene 
when a decision is unlawful, unreasonable or procedurally unfair. 
 
1. Unlawful
 
  A number of grounds of review flow from the requirement that administrative action must be lawful, such as:  
• The administrator who took the decision is not authorized by an empowering provision to 
make the decision. 
 
• The administrator who took the decision acted in  terms of an unlawful delegation of power. 
 
• A mandatory and material procedure or cond ition prescribed by an empowering provision 
was not complied with.  
 
• The administrative action was materially  influenced by an error of law. 
 
• The administrator had an ulterior purpose or motive in taking the decision. 
 
• The decision by administrator was taken in bad faith. 
 
• The administrator failed to consider an a pplication or refused to make a decision. 
 
• The administrator failed to make a decision within the prescribed time limit or within a 
reasonable time when no time limit was prescribed. 
 
• The administrator failed to take relevant c onsiderations into account when he made his 
decision or the administrator took in to account irrelevant considerations. 
 
• The administrator made a decision that was arbitr ary, that is a decision that is irrational or 
senseless or without foundation. 
 
• The administrator made a decision because of the unauthorized or unwarranted dictates of 
another person or body. 
 
• The administrator was biased or is reasonably suspected of bias.  
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 2. Unreasonable  
  The following grounds of review flow from the requirement that the administrative action 
must be reasonable:   
• The decision of the administrator is not rati onally connected to the purpose for which it was 
taken. 
 
• The decision of the administrator is not ra tionally connected to the purpose of the 
empowering provision. 
 
• The decision of the administrator is not rationa lly connected to the information before the 
administrator. 
 
• The decision of the administrator is not rationally connected to the reason given for the 
decision by the administrator. 
 
• The exercise of the administrative function authorized by the empowering provision in terms 
of which the administrative action was taken,  is so unreasonable that no reasonable person 
could have so exercised his or her power or perform the administrative function. 
 
3. Procedural Fairness
 
  An administrative action which materially and adversely affects the right of any person, must be procedurally fair.  Section 3(2)(a) of PAJA st ates that a fair administrative procedure depends on 
the circumstances of each case.  The grounds of review can be, inter alia : 
 
• The administrator did not give a person that may be adversely affected by an administration 
action an adequate notice of the nature and purpose of the proposed administrative action. 
 
• The administrator did not give a person that ma y be adversely affected by an administrative 
action reasonable opportunity to make representations. 
 
Procedures in Judicial Review 
 
 Section 7 of PAJA requires review proceedings  to be instituted without unreasonable delay 
and no later than 180 days from the date on whic h the applicant was informed of the decision and 
reasons or became aware of the decision and reasons or might reasonably have been expected to have 
become aware of the decision and reasons.  If an inte rnal remedy is provided for in any other law the 
applicant must first exhaust that internal remedy pr ocess before the courts will entertain an application 
for review.  After the applicant has exhausted th e internal remedy process, the applicant has to 
institute the review proceedings within 180 days.  The administrator and a party affected by a decision 
of the administrator may agree on an extension of the 180 days and the courts may also grant 
condonation for the late institution of review proceedings. 
  An application of review is made to the High Court by way of a notice of motion.  The notice of motion must set out the decision or proceedings s ought to be reviewed and must be supported by an 
affidavit setting out the grounds on which the applic ant seeks relief, the facts and circumstances on 
which the applicant bases the claim for relie f and the relief sought by the applicant. 
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  The notice of motion must call on the administrator whose decision is being reviewed, and all 
other parties affected, to show cause why the decision should not be  reviewed and corrected or set 
aside.   The administrator must submit a record of the proceedings wherein the decision to be 
reviewed was taken, together with any reasons th e administrator wishes to give, or which the law 
requires him to give, to the High Court within 15 days of receiving the notice of motion.  The 
administrator must then notify the applicant that he  has done so.  The registrar of the High Court will 
make the record available to the applicant.  The appl icant has the right to waiv e the right to the record 
of the proceedings.  After the registrar has made th e record available to the applicant, the applicant 
has 10 days to amend the notice of motion and supplem ent the founding affidavit.  If the administrator 
wishes to oppose the application for review, he or she must deliver a notice to the applicant and the 
High Court within 15 days of receiving the notice of motion or any amendment thereof.  The administrator must submit an answering affidavit within 30 days after the expiry of the 10-day period that the applicant had to amend his notice of mo tion.  The applicant can then submit a replying 
affidavit and apply for a date for the review appli cation to be heard by a judge of the High Court. 
 
Remedies 
 
 The remedies in proceedings for judicial review are set out in clause 8 of PAJA.  The courts 
are given wide powers as to the remedies that may be  granted in review applications.  In terms of 
Section 8(1) of PAJA, the courts have a residual power to make an order that is just and equitable.  In 
cases where relief is granted, a judge may:  1. Set aside the decision that was reviewed and remit the matter back to the administrator for 
consideration, with or without specific directions. 
 
2. Set aside the decision that was reviewed a nd substituting or varying the administrative action 
or correcting a defect resulting from the administrative action.  This can only be done in exceptional cases, for example where the end resu lt is a foregone conclusion and it would be a 
waste of time to remit the decision to the administrator. 
 
3. Set aside the decision that was reviewed and direct the administrator or any other party to the 
proceedings to pay compensation.  This can only be done in exceptional cases. 
 4. Make an order declaring the rights of par ties in respect of any matter to which the 
administrative action relates.  
 
5. Direct the administrator to act in a specifi c manner or to give reasons for the decision. 
 6. Prohibit the administrator from acting in a specific manner.  7. Grant a temporary interdict. 
 
8. Direct an administrator to take a decision and declare the rights of parties in relation to taking 
of the decision.  
 9. Make an order towards cost. 
 
Compliance with Anti-Dumping Agreement 
 
 Judicial review is the only avenue by whic h an anti-dumping decision can be reviewed in 
South Africa.  The judicial review of administrativ e proceedings is under the jurisdiction of the courts  G/ADP/AHG/W/165 
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 in South Africa.  Therefore the administrative re view process in South Africa meets the requirements 
of Article 13 of the Anti-Dumping Agreement in that  the review procedure of anti-dumping actions is 
independent from the authority responsib le for the anti-dumping determination. 
  
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