1constitutional court of south africa

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United Kingdom

  1. Although not directly in point on the issue of constitutionally protected property, certain recent judgments in the Court of Appeal are instructive. The outer limit for substantive judicial review of an administrative authority on the ground of unreasonableness is encapsulated in the so-called “Wednesbury rule”, namely where the authority’s decision is one which no reasonable tribunal could have reached.142 It is unnecessary to enter into the question whether, in English administrative law, lack of proportionality has been expressly recognised as part of the Wednesbury rule or whether it is a separate ground for review.143

  1. More recently courts have referred expressly to proportionality when reviewing executive action.144 Suffice it to refer to the decision in ex parte Smith in which the Court of Appeal per Sir Thomas Bingham endorsed the following approach with regard to the review of administrative discretion as an accurate distillation of the principles laid down by the House of Lords:

“The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to the reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above”,145 (emphasis supplied)

a formulation that has subsequently been expressly approved by the Court of Appeal in Lord Saville’s case.146

  1. In adopting this test, the Court of Appeal in Smith did so with full appreciation of the need to respect the separation of powers between the judiciary and the executive, as the following passage from the judgment illustrates:

“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue, even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations.147 (Emphasis supplied)

In Lord Saville’s case it was also well appreciated that this test went beyond questions of “mere rationality”, as the following passage shows:
“In such cases it is said that the decision is irrational or perverse. But this description does not do justice to the decision maker who can be the most rational of persons. In many of these cases, the true explanation for the decision being flawed is that although this cannot be established the decision-making body has in fact misdirected itself in law. What justification is needed to avoid a decision being categorised as irrational by the courts differs depending on what can be the consequences of the decision. If a decision could affect an individual’s safety then obviously there needs to be a greater justification for taking that decision than if it does not have such grave consequences.”148

  1. The formulation of property rights and their institutional framework differ, often widely, from legal system to system. Comparative law cannot, by simplistic transference, determine the proper approach to our property clause that has its own context, formulation and history. Yet the comparative perspective does demonstrate at least two important principles. The first is that there are appropriate circumstances where it is permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation.

  1. The second is that for the validity of such deprivation, there must be an appropriate relationship between means and ends, between the sacrifice the individual is asked to make and the public purpose this is intended to serve. It is one that is not limited to an enquiry into mere rationality, but is less strict than a full and exacting proportionality examination. Moreover the requirement of such an appropriate relationship between means and ends is viewed as methodologically sound, respectful of the separation of powers between judiciary and legislature (in the case of the United Kingdom between judiciary and executive) and suitably flexible to cover all situations. It matters not whether one labels such an approach an “extended rationality” test or a “restricted proportionality” test. Nor does it matter that the relationship between means and ends is labelled “a reasonably proportional” consequence, or “roughly proportional”, or “appropriate and adapted” or whether the consequence is called “reasonable” or “a fair balance between the public interest served and the property interest affected”.

  1. That the word “arbitrary” can grammatically have such a substantive content is reflected in the Oxford English Dictionary definition of “in an arbitrary manner” which includes “without sufficient reason”. The standard set in section 25(1) is “arbitrary” and not, as in section 36(1) of the Constitution, “reasonable and justifiable”.

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