Member of the Executive Council for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute

Kirland Investments applied for permits to establish private hospitals in the Eastern Cape in 2006-2007. The Superintendent-General initially refused the applications on an Advisory Committee's recommendation. However, while the Superintendent-General was on sick leave following an accident, the Acting Superintendent-General approved Kirland's applications on 23 October 2007. According to uncontroverted evidence, this approval was granted under direct political pressure from the MEC for Health, who instructed the Acting Superintendent-General to approve the applications. Upon his return, the Superintendent-General withdrew the approval in June 2008. Kirland successfully challenged the withdrawal in the High Court, which set aside both the withdrawal and the approval itself. The Supreme Court of Appeal upheld the invalidity of the withdrawal but set aside the High Court's order invalidating the approval, finding the approval had not been properly subjected to review proceedings.

• Whether an administrative decision taken under unlawful political interference constitutes a valid administrative action
• Whether a court can declare an administrative decision invalid when it is not the subject of a formal counter-application or separate review application
• Whether the beneficiary of an administrative decision is entitled to procedural protections before that decision is set aside
• Whether the principle in Oudekraal Estates applies - that an unlawful administrative act remains effective until properly set aside
• Whether government is required to follow due process when seeking to have its own defective decision set aside

Leave to appeal granted. Appeal dismissed with costs, including costs of two counsel. The Supreme Court of Appeal's order was upheld, which had the effect that the Acting Superintendent-General's approval, though found to be invalid, remained in place because it had not been properly challenged through review proceedings. The decision of the Superintendent-General to withdraw the approval remained set aside.

An administrative decision, even if unlawful or tainted by improper political interference, remains effective and cannot simply be ignored or unilaterally withdrawn by government officials. Such a decision must be formally challenged and set aside through proper review proceedings. When government seeks to have its own decision set aside, it must generally bring a proper review application (or counter-application), giving the affected party notice and a fair opportunity to be heard. This protects the rights of those who have relied on administrative decisions in good faith and prevents administrative chaos that would result if officials could unilaterally declare prior decisions to be nullities. The Constitution's remedial powers under section 172(1)(b) and PAJA section 8(1) require courts to consider what is just and equitable, which includes considering prejudice to parties who have acted in reliance on administrative decisions. Government is held to a high standard of following proper legal processes and cannot exempt itself from the burdens of review on grounds of administrative convenience or the patent unlawfulness of its own conduct.

Cameron J's majority judgment contains strong statements about the obligations of government to follow the rule of law and proper processes: "Government should not be allowed to take shortcuts...there is a higher duty on the state to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights. Government is not an indigent or bewildered litigant...It is the Constitution's primary agent. It must do right, and it must do it properly." The judgment also condemns the political interference in this case as "a sorry tale of mishap, maladministration and at least two failures of moral courage" involving conduct that was "unacceptable and disgraceful." Jafta J's minority judgment contains equally strong language about corruption: "Corruption and maladministration do not only pose a serious threat to our democratic order, but are also inconsistent with the Constitution...Corrupt practices should not escape the reach of our courts solely on the basis that no application to have them set aside was made." The judgments debate but do not definitively resolve the extent to which PAJA applies when government seeks to review its own decisions.

This case establishes important principles about procedural fairness in administrative law and the limits on government's ability to unilaterally undo its own administrative decisions. It affirms the Oudekraal principle that even unlawful administrative actions remain effective until properly set aside by a court. The judgment emphasizes that government must follow proper legal processes, including review applications with proper notice and opportunity to respond, even when seeking to correct its own errors. It balances the need to remedy unlawful administrative action against the rights of persons who have relied on administrative decisions in good faith. The case also addresses the proper approach when corruption or political interference taints administrative decisions, emphasizing that such decisions must still be challenged through proper legal channels rather than through administrative self-help. The contrasting judgments reveal different views on formalism versus substantive justice in addressing clearly unlawful administrative conduct.