INTRODUCTION TO LAW AND LEGAL METHODS

Judicial Review

ADMINISTRATIVE LAW JUDICIAL REVIEW THE BASIC PRINCIPLES

PUBLIC LAW
Public Law is a theory of law governing the relationship between the state and private
individuals (citizens, companies, etc).
It regulates the relation between one or more government /state entity and another person or
entity; relation between parastatal bodies; relation between different state entities.
Specific enactments ensure than such conflicts are solved outside the realm of private law ex.
POPA, State Proceedings Act (Constitutional, Administrative, Criminal Law)
PRIVATE LAW
Private Law is the area of law in a society that affects the relationships between individuals or
groups without the intervention of the state or government.
Law of contract typical illustration (Law of contract, Company Law)

MIXED BRANCH This is neither fully private nor fully public law
In many cases the public/private law distinction is confounded by laws that regulate private
relations while having been passed by legislative enactment. In some cases these public
statutes are known as laws of public order, as private individuals do not have the right to break
them and any attempt to circumvent such laws is void as against public policy.
Under this category, one can find namely branches of the law referred to as Employment Law,
Procedural Law, etc.
What is Administrative law?
Administrative law is the body of law that governs the activities of administrative agencies of
government. Government agency action can include rulemaking, adjudication or the
enforcement of a specific regulatory agenda.
Administrative law is considered a branch of public law. As a body of law, administrative law
deals with the decision-making of administrative units of government (for example, tribunals,
boards or commissions) that are part of a national regulatory scheme in such areas
as international trade, manufacturing, the environment, taxation, broadcasting, immigration and
transport.
Administrative law is that body of law which applies for hearings before quasijudicial or administrative tribunals. This would include, as a minimum, the principles of natural
justice as embodied in audi alteram parte mand nemo judex in sua causa. Many quasiS. Ellayah

judicial organizations or administrative tribunals supplement the rules of natural justice with their
own detailed rules of procedure.
Audi alteram partem: literally, hear the other side.
It is most often used to refer to the principle that no person should be judged without a fair
hearing in which each party is given the opportunity to respond to the evidence against them
Nemo judex in sua causa: literally, no-one should be a judge in their own cause.
It is a principle of natural justice that no person can judge a case in which they have an interest.
The rule is very strictly applied to any appearance of a possible bias, even if there is actually
none: "Justice must not only be done, but must be seen to be done"
DEFINITIONS OF JUDICIAL REVIEW
Judicial review:
Judicial review refers to the law relating to the control of statutory powers by courts.
Other definitions:

Review by a court of law of actions of a government official or entity or of some other legally
appointed person or body or the review by an appellate court of the decision of a trial court

The power of the judiciary to review the actions of other branches of the government and to
determine the legality of those action

Judicial review is the exercise of a law court's inherent power to determine whether action is
lawful or not and to award suitable relief.

The ordinary court possesses a power of review over the legality of administrative acts.
The legality of acts and decisions of public bodies may be challenged by recourse to the
supervisory jurisdiction of the Supreme Court by showing that a decision is wrong for
being ultra vires.
NATURE AND SCOPE OF JUDICIAL REVIEW
The principle underlying judicial review:
The remedy of judicial review is concerned with:
Not reviewing the merits of the decision in respect of which the application for judicial review is
made but the decision making process

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Cases to illustrate the above principle:

1.
Chief Constable of NW Police v Evans 1982
Lord Hailsham stated that the remedy of Judicial Review is to ensure that individuals are given
fair treatments by the authority and it is not its purpose to substitute the opinion of the judiciary
or of the individual judges for that of the authority.
2.

Lutchman v MSTC 1990

Courts do not consider merits but procedure followed i.e. it is now what decision has been taken
or that the judge would have taken but how the decision was taken.
3.
Jaunbaccus v NTA 1993
One must not confuse between appeal and judicial review. The courts in judicial review do not
have the flexibility as in appeals.

AGAINST WHOM DOES JUDICIAL REVIEW LIE?

Examples:
-

Decisions of Ministers
Government departments
Statutory bodies / bodies created by statute
Local authorities

There are certain decisions of statutory bodies, e.g. PSSA, Medical Council, the NTA, the MES,
the Mauritius Bulk Sugar Terminal, where in the exercise conferred by statute, are not
necessarily subject to Judicial Review.
Question: the mere fact that they are created by statute, does it automatically make their
decisions amenable to Judicial Review? The answer is no.
To the extent that the PSSA is discharging its duties by virtue of powers conferred to it by the act
/ regulations these decisions are subject to Judicial Review but you need to check that
decision taken by virtue of an act.
Various attempts have been made to bring public bodies / statutory bodies before the court in
cases of appointment and promotion e.g. Augustave, Lutchman and Islam cases.

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The ratio in these cases at the end of the day is as follows:

Although statutes give powers to the bodies concerned to recruit and promote; the
procedures involved in the recruitment / appointment / promotion exercise are not
subject to Judicial Review because the law does not regulate how the PSSA, Medical
Council, MES etc should recruit / promote. They are procedures which these bodies
draw up for self-regulation.
The relationship between the aggrieved employee and the body is contractual and thus
better to go by ordinary course of action.
Thus, not all decisions of statutory bodies are subject to Judicial Review.
JR PROCESS
Judicial review (JR) is a two-stage process.
A distinction has to be made between the 2 stages of judicial review ;
(I)
the leave stage
(II)
the merits stage.
LEAVE STAGE
The first stage is the leave stage the stage at which the court will decide whether it will allow
the application to proceed to the merits stage, i.e. only if leave is granted that the Court will
proceed to hear the substantive application for judicial review.
The purpose of the leave stage is:
(a) to eliminate at an early stage any applications which are either frivolous, vexatious or
hopeless; and
(b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the
Court is satisfied that there is a case fit for consideration.
It is a filter stage.
Questions to be addressed at leave stage:
In relation to the leave stage, the following questions need to be addressed:

Is the decision one of a public body?

The Courts have not attempted to define the term public body.
Generally, JR is available against decisions of Ministers or bodies exercising statutory
powers which affect the rights of individuals.
Examples include departments of central government, local authorities, bodies created
by statute.
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 Decisions of bodies other than Courts but exercising judicial functions can be the object
of judicial review (Berenger v Goburdhun decision of a particular commission
investigating fraud can be the object of judicial review)

Does the decision involve a public law element?

Judicial review is not available unless the right involved is a public law right. An action
relating to private law rights can be commenced by ordinary procedure even against a
public body.
Even if we are concerned with a public body, its decision will only be amenable to JR if
the right involved is a public law right.
If the decision relates to private rights (e.g. arising under a contract of employment
Augustave v. MSTC), it cannot be the object of judicial review in the absence of a public
element such as an alleged violation of the Constitution.
JR does not lie in respect of a domestic tribunal adjudicating on a private matter arising
out of a contractual relationship (Sham v MTC).

Marchand v SIDF
Held that even statutory bodies, if the dispute concerns side activities e.g. construction of a
building like a contract - there is no action in judicial review.
If we are questioning the decision of the statutory body, are we bound to go by judicial review or
can we proceed by way of an ordinary action?
Can we invoke tortuous liability (plaint with summons) faute/breach of contract?
The general rule
To the extent that we are questioning the legality of the decision of the statutory body, we have
to proceed by way of judicial review, and not by ordinary action.

In other words, if the action is one to question the vires (intra/ultra)/ reasonableness/ extent to
which rules of natural justice applied, we have to go by way of judicial review.

Does the applicant have sufficient interest (locus standi) to make the application?

THE RULE: The one who applies for judicial review must have sufficient interest in the subject
matter of the application.
The question is whether anybody can enter an action against a public body.
The applicant should have sufficient interest in the matter to which the application
relates.

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 In deciding whether the applicant has sufficient, the Courts will consider the powers or
duties in law of those against whom relief is asked, the relation of the applicant in
relation to those powers, and the breach of those duties said to have been committed.
A person would therefore have sufficient interest if he is a person aggrieved by the
decision, i.e. if he is a person whose interests may be prejudicially affected by the
decision; if he has a genuine grievance because something has been done or may be
done which affects him. Includes anyone who has some special or peculiar interests in
the due discharge of the duty.
The test of standing is designed to exclude mere busybodies who are interfering in
things which do not concern them.

Has the applicant acted promptly?

Application for leave should be made promptly, i.e. as soon as practicable or as soon as
the circumstances of the case allow, and in any event, within 3 months from the date
when the grounds for the application first arose.
The delay must be counted from the date the decision is communicated to the applicant
(Monty v PSC).
Even if the application is made within 3 months, leave may be refused because on the
facts, the application has not been made promptly.
Similarly, the Court may extend the time for applying for leave if it considers there is
good reason to do so.
Before allowing the extension, the Court must be satisfied that:
o there are good reasons why the application was not made within 3 months; and;
o no substantial hardship or prejudice will be caused, not only to the parties, but to the
wider public; and
o it will not be detrimental to good and proper administration.
The key principle is therefore that the Court has a discretion in the matter.

Has the applicant exhausted all other remedies available?

If you have an application instituting proceedings by way of judicial review, you must
consider:
o whether another avenue is open before judicial review is contemplated Although
decisions of inferior courts are subject to review, rarely proceed by way of judicial
review as an appeal procedure. That is why with regard to the tax appeal tribunal,
special procedure is catered for by way of case stated - only if one has a very valid
reason will the court uphold application for leave for judicial review;
o whether you have exhausted all remedies available
Although non-exhaustion of all other available remedies does not completely shut the
door to JR, it is an important factor which may affect the exercise of the Courts
discretion.
Exhaustion of available remedies is not necessarily a condition precedent. The Court
has a discretion in the matter and, in exercising it, will take into account, inter alia, the
object and purpose of the application, the effectiveness of the other remedies available
and the conduct of the applicant Khedoo and ors v RTC.
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 Often, the court can be influenced by the fact that the decision is so wrong that although
you did not exhaust all other avenues, the court will grant leave.

Has the applicant not behaved in a way which would entitle the Court, in its
discretion, to refuse to grant remedy by JR, e.g. by acquiescence or lack of
uberruma fides (utter good faith)?
The applicant has a duty to make full and frank disclosure of all material facts.
The applicant must show utter good faith and if leave is obtained on false
representations or suppression of material facts in the affidavit, the Court may refuse an
order on this ground alone.
Leave may be refused if there is a material non-disclosure on the part of the applicant.
Acquiescence probably means that the applicant has agreed to or accepted the
decision of the body in question. This would then preclude him from seeking JR of that
decision.

Is the decision-making process being questioned or are findings of fact being

questioned as if a review were an appeal?
JR is not the same as an appeal. Findings of fact cannot normally be challenged and it
is the decision-making process which is the proper object of a review Coulon v TCSB.
The decision itself (and not the decision-making process) may be challenged if the
decision is so unreasonable that no reasonable body could have reached such a
decision the Wednesbury principle.

Has an arguable case been made out?

Leave will be granted if, on the material available (i.e. the affidavit evidence), the Court
thinks, without going into the matter in depth, that there is an arguable case for granting
the relief claimed by the applicant.
The test is whether there is a case fit for further investigation at full inter partes hearing
(i.e. a hearing in court, with witnesses being called and everything) of a substantive
application for JR.
In an application for leave, specific averments are necessary to disclose an arguable
case that the decision-making process was flawed.
No arguable case is shown when the applicant merely avers that the decision reached is
unwarranted, unfair and in breach of the rules of natural justice without averring
specific facts constituting the alleged breach (Ramdenee v Registrar General and Tax
Appeal Tribunal).
Similarly, it is not enough to aver that a decision is capricious, arbitrary or unjustified,
without specifying why the decision deserves those qualifications (Coulon v TCSB).

GROUNDS ON WHICH JR MAY BE SOUGHT

The grounds on which JR may be sought are as follows:

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The decision is in excess of jurisdiction (ultra vires)

This is a question of looking at the law and deciding whether the body has acted intra or ultra
vires
The questions to be asked: What powers does this body have? Does it have jurisdiction or not?
There are 3 types of ultra vires, namely
o

Substantive Ultra Vires the body concerned has attempted to deal with a matter
outside the range of the power conferred upon it.
E.g. The Tax Appeal Tribunal can be given specific jurisdiction for cases not
exceeding Rs 50,000. For cases above Rs 50,000, the Tax Appeal Tribunal would
not have jurisdiction.
The act of the body/ authority must be within the 4 walls of the powers conferred to it
by legislature.
The court must examine the nature, object and scheme of the legislation and in the
light of that examination it must consider the exact powers under which the
competent authority purports to act.

Procedural Ultra Vires the body concerned has failed, in reaching its decision, to
follow a prescribed procedure / a procedure imposed by law.
E.g. procedure for recruitment as set out in the law is not followed by PSC (Public
Service Commission)
Where a statute creates a body to perform some task on behalf of the executive, it is
more likely to lay down a procedure that the body should follow in performing its
functions.
Procedural requirements are classified in two types:
1. Mandatory requirements failure to comply with such requirements will
render any subsequent action void / will result in invalidity
2. Directory requirements failure to observe will not normally render any
subsequent action void / will not result in invalidity
The more important the requirement, the more likely it is to be held as being
mandatory.

Ultra vires on the merits - Wrong interpretation of the law

Every wrong interpretation of a word by a tribunal or a statutory body will give rise to
ground of appeal by way of judicial review.
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E.g. Income Tax Act allows deduction of interest on loans. Is an overdraft a loan and
thus interest on an overdraft is deductible?
Commissioner of Income Taxes says no and loan does not include overdraft.
Counsel could go to court and ask for judicial review on the ground that the Tax
Tribunal has acted ultra vires as the definition of loan does include overdraft.
Delegated legislation may be void on the ground of Ultra Vires.
If a decision is founded upon an erroneous proposition of law, it follows that the body
must have asked itself the wrong question and no such body has jurisdiction to base its
decision on a wrong question therefore decision ultra vires

There has been a breach of the principles of natural justice

There are 2 limbs to natural justice, namely:
o

BIAS there must be no bias, no conflict of interest

Whoever takes a decision should be impartial, having no personal interest in the
outcome of the case.

A man cannot be a judge in his own cause.

Bias is, for example, whilst deciding a case, if in your mind all those being
prosecuted are guilty, you would be predetermining the case that is bias.
No need to show that the person was actually influenced by the interest he had in
the matter.
Acquaintance with one of the parties to litigation, preconceived notions on the
merits of the dispute, or strongly held beliefs may constitute disqualifying bias.
A financial interest is sufficient to disqualify a judge on the ground of bias. In
other cases, a judge is only disqualified if there is a real likelihood of bias or a
reasonable suspicion of bias.
No need to show that the judge was in fact biased.
Principle that justice must not only be done but must be seen to be done R v
Sussex Justices ex parte Mc Carthy
Rule against bias has an ambit restricted to judicial and disciplinary decisions
Betsy v Bank of Mauritius

Fair hearing: give the party/person a fair hearing

Defence - Give opportunity to prepare defence.
A decision should not be taken until the person affected by it has had an
opportunity to state his case.
Each party must have reasonable notice of the case he has to meet.
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Natural justice requires adequate warning of a hearing.

The party must be informed of the charge preferred and given opportunity to
prepare defence. Details of the charges to be met have to be communicated to
allow the party to prepare his case properly.
He must be given an opportunity of stating his case.
He must be given an opportunity to answer any arguments put forward against
him.
This does not necessarily mean that there will be a hearing / that the person is
entitled to be heard orally; it would depend on the seriousness and gravity of the
charges, on that basis the type of hearing will be decided, if any

Sanction
Linked to that, is the sanction to be applied. The more serious the charge, the
heavier/harsher the sanction
Legal representation

Legal representation is not necessarily essential. Will depend on the seriousness

and gravity of the charges/sanctions or the consequences of an adverse
decision. The more serious they are, the more the opportunity to be represented
by a legal person

A decision may also be quashed if there is a breach of a legitimate expectation.

Legitimate expectation can arise from past conduct, e.g. regularly granting a hearing
before issuing terms. Whether a legitimate expectation exists is a question for the Court
to determine.
Failure to give reasons for a decision may amount to a flaw that affects the decisionmaking process. For such failure to actually affect the decision-making process, it must
have caused substantial prejudice, and where the applicant fails to refer to the precise
findings of the respondent, and to show, indicate and particularise such prejudice, no
arguable case is shown. (Coulon v TCSB)

There is an error on the face of the record

Principle laid out in the Northumberland case.
The Court has the power to quash a determination which, on the face of the record,
offends the law.
The record includes documents which initiates the proceedings, the pleadings, the
adjudication.
It does not include the evidence, nor the reasons for the determination, unless the body
in question chooses to incorporate them.
Affidavit evidence not admissible, because the error must appear on the record itself.

The decision is so unreasonable that no reasonable body could have reached such a
decision (referred to as the Wednesbury Principle)

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 The Rule: Where the body has reached a decision which no reasonable body would
have reached.
It is easy to state but a tricky principle to apply, e.g. it is not because you have reached a
different conclusion that your decision should be unreasonable.
It is not because the body in question has reached a different conclusion but rather:
Is it so unreasonable that no reasonable person could have come to that decision or that
conclusion?
By-laws (regulations i.e.) may be unreasonable if they are found to be partial, unequal in
their operation between classes or if they are manifestly unjust, disclose bad faith or
involve such oppression as to find no justification in minds of reasonable men.
Over-rigid adherence to a policy
o

Decisions should be taken, and powers should be exercised in light of the

circumstances and merits of each individual case.

Does not mean that a public body may not formulate policies in advance to guide the
determination of particular types of applications. But the exercise of discretion, by the
purely mechanical application of the predetermined policy without any attention being
paid to special circumstances of the individual case that may warrant departure from
usual policy, is unreasonable.

Where powers are conferred on a body, that body should retain freedom to exercise
those powers as and when it may judge it to be in the public interest. Such bodies
therefore cannot limit/restrict the exercise of those powers either contractually or
otherwise.
If the law has granted a power on a body, and the body decides not to use that power,
this is unreasonable. The discretion given has to be exercised. Otherwise it would be
unreasonable. The final decision can be positive or negative, as long as the discretion
has been exercised.
E.g. the law has conferred on the Minister of Tourism the power to grant hotel permits.
That is the law. The Minister cannot just decide not to grant permits - that would be
unreasonable. The Minister must consider the application whether it decides
thereupon not to grant, thats another matter. Not considering the application for 5/10
yrs would be unreasonable
So from a purely legal point of view, there is a need to exercise that discretion.
A statutory power conferred on a particular body cannot be delegated, unless the statute
specifically provides for such delegation of powers.
A statutory power should not be exercised under dictation (i.e. under the orders of
another body; no longer exercising discretion).
E.g. Likewise if a body has been granted a particular discretion, it cannot let itself be
dictated by someone else such as a Minister cannot say that it cannot give permit X
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because the Commissioner of Police has objected and dictated otherwise. The Minister
has to reach its decision by assessing all considerations/circumstances. It can say that
it consulted & rejected but cannot be dictate.
There will be an abuse of power if the power conferred by a statute is exercised for a
purpose other than the purpose for which the power was conferred.
There will also be an abuse of power if the body upon which the power has been
conferred takes improper considerations into account or fails to take into account proper
considerations. If one has been motivated by extraneous matters, there could be
unreasonableness in the sense that you have been given a discretion and you let
yourself be guided by extraneous circumstances.
E.g. not because of your appurtenance to a political party should your licence not be
granted / bus licence be refused.
MERITS STAGE
The court is not concerned with the merits of the case as such but the merits of the
application this is what is meant by merits as the 2 nd stage of the procedure for judicial
review.
What is meant by merits?
With respect to the decision of a public body whether the PSC appointed X instead of Y so
long as X has the necessary qualifications, the court will not intervene to substitute the views of
the PSC with its own.
The judge may have his own opinion and think that Y should indeed have been appointed but
that is not the point. The fact that the PSC has followed the rules of appointment, the fact that X
holds the necessary qualifications, the fact that there has been no error in law, the courts will not
intervene.
The court will only be satisfied with the fact that the process is right, that the rules by which the
body has reached its decision are right, not the merits.
The substantive judicial review application
The second stage is a renewed application. Lodge motion and affidavit.
Having obtained leave to move for judicial review, the next stage is for the applicant to institute a
substantive application for judicial review. To institute such a substantive application, the
applicant must within 14 days
(a) serve on all parties directly affected a notice of motion and affidavit;
(b) lodge the motion with the Court.

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The question of interest can be raised again. Although leave has been granted, the court may
rule that the applicant does not have sufficient interest. The court will decide how meritorious
the claim of the applicant is.

REMEDIES UNDER JUDICIAL REVIEW please refer to Part G of Discussion

Paper this will be discussed during the class

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