Lawyers for Human Rights v Rules Board for Courts of Law and Minister of Justice and Constitutional Development

The Rules Board for Courts of Law (First Respondent) was required by section 7(3) of the Promotion of Administrative Justice Act, 2000 (PAJA) to make rules of procedure for judicial review before 25 February 2009. New rules were published in Government Gazette No. 32622 of that date. The new rules replaced the long-standing procedures under Rule 53 of the Uniform Rules of the High Court and Rule 7A of the Labour Court Rules. Under the old Rule 53/7A procedure, an applicant could call upon an administrator to dispatch the full "record of proceedings" relating to the decision under review within 15 days of the notice of motion, and then amend grounds of review after inspecting the record. The new rules introduced a different pre-litigation procedure requiring applicants to first request reasons (Rule 3) and then request a list of "relevant documents" (Rule 4) - defined as documents that "relate directly" to grounds of review already identified by the applicant. The administrator had discretion to refuse requests on "valid grounds" and could classify documents into Part 1 (accessible) and Part 2 (not accessible) categories. Lawyers for Human Rights (Applicant) challenged the constitutionality of the new rules.

• Whether the decisions of the Rules Board and Minister to make and approve the new rules constitute reviewable administrative action
• Whether the new rules are inconsistent with section 32 of the Constitution (right of access to information)
• Whether the new rules are inconsistent with section 33 of the Constitution (right to just administrative action)
• Whether the new rules are inconsistent with section 34 of the Constitution (right of access to courts)
• Whether the new rules are inconsistent with section 23 of the Constitution (fair labour practices)
• Whether specific provisions of the new rules (Rules 3(5)(e), 4(4), 4(7), 7(3)(e) and (f)) are impermissibly vague and unconstitutional
• Whether the new rules adequately provide for private respondents to access the record

1. Declared that Rule 4, read with the definition of "relevant document" in Rule 2 of the new rules, is inconsistent with the Constitution, unlawful and invalid as it deprives persons intending to institute judicial review from access to all documents before the administrator when the decision was taken. 2. Declared the inconsistency to be remedied by substituting the definition of "relevant document" to mean "every document that was before or available to the administrator when the administrator took the decision sought to be reviewed." 3. Declared Rules 3(5)(e), 4(4), 4(7) and 7(3)(e) and (f) inconsistent with the Constitution and therefore unconstitutional, unlawful and invalid. 4. Declared the new rules inconsistent with the Constitution, unlawful and invalid to the extent they fail to provide a mechanism for private respondents to obtain access to the record and reasons. 5. First and Second Respondents ordered to pay costs jointly and severally, including costs of two counsel.

The binding legal principles established are: (1) An applicant for judicial review has a constitutional right under sections 32, 33 and 34 to access the full record of documents and information that were before or available to the administrator when the decision under review was taken, not merely documents the administrator considers "relevant" to grounds of review identified by the applicant before seeing the record. (2) Limiting access to only pre-identified "relevant documents" infringes the constitutional rights to access to information, fair administrative action, and access to courts, as applicants in administrative matters often cannot know all grounds of review without first seeing what was before the decision-maker since administrative action frequently occurs "behind closed doors." (3) Such limitation cannot be justified under section 36 of the Constitution on grounds of administrative efficiency, cost-saving, or convenience, as these do not constitute sufficient justification for limiting fundamental rights. (4) Rules of procedure must not place impossible or impractical burdens on litigants, such as requiring them to demonstrate prima facie grounds of review or the necessity of documents without having first seen those documents. (5) Private respondents in judicial review proceedings have a procedural right to access the record of administrative proceedings being reviewed. (6) Procedural rules must provide sufficient certainty and cannot grant discretionary powers based on impermissibly vague standards such as "any other valid ground" without guidance on what constitutes such grounds.

The court made several non-binding observations: (1) The reference to magistrates' courts in Rule 1(1) of the new rules is problematic as it is difficult to foresee how jurisdiction for judicial review would be conferred on magistrates' courts, and this would likely require amendment to both PAJA and magistrates' court rules. It would be advisable to omit this reference and define "court" to mean only High Court or Labour Court. (2) The expression "court" in the new rules should not be read to include the Constitutional Court despite the PAJA definition. (3) Rule 3, which re-enacts provisions of sections 5 and 9 of PAJA regarding reasons for administrative action, is largely unnecessary and potentially creates ambiguity, as the PAJA provisions already adequately address this. Some provisions of Rule 3 may constitute unauthorized amendments to PAJA (such as the 10-day response period in Rule 3(2)) and have no legal effect. Rule 3(5) grounds for refusal are mostly unnecessary repetitions of existing PAJA provisions. (4) Rule 4 may conflict with the Promotion of Access to Information Act, 2000, and it is uncertain whether such a rule is necessary given existing PAJA and PAIA provisions. The court cited with approval Industrial Development Corporation v PFE International indicating PAIA was not intended to supplement court rules for litigation purposes. (5) The new rules create an impractical multi-stage process that would make it virtually impossible to bring urgent review applications efficiently. (6) The new rules problematically create a differentiation between PAJA reviews and legality reviews, which will create practical difficulties as applicants commonly plead both in the alternative. (7) Earlier drafts of the rules from 2006-2007 had preserved essential elements of Rule 53, and it is difficult to understand why the Respondents persisted with the more restrictive final version despite opposition from practitioners, academics, and judges. (8) The court expressed doubt about its power to grant a "reading in" remedy to fix the rules, noting this is primarily a legislative function, but ultimately granted declaratory relief as the appropriate remedy within its constitutional mandate. (9) The delay in making the rules beyond the February 2009 deadline could be remedied by appropriate amendment to section 7(3) of PAJA.

This case is significant for administrative law in South Africa as it struck down substantial portions of the PAJA Rules of Procedure for Judicial Review, protecting the established Rule 53 procedure that had been in place for decades. The judgment affirmed the fundamental importance of access to the full administrative record in judicial review proceedings, recognizing that applicants often cannot know all grounds of review without first seeing what information was before the decision-maker. It reinforced that administrative transparency and access to information are constitutional imperatives that cannot be limited merely for administrative convenience or efficiency. The case established that the right to access the full record is essential to realize the constitutional rights to access to information (section 32), just administrative action (section 33), and access to courts (section 34). The judgment also clarified that while rule-making by the Rules Board is a legislative rather than administrative function not subject to PAJA review, the rules themselves as delegated legislation can be challenged for constitutional invalidity. The decision is frequently cited in administrative law for the proposition that applicants are entitled to the full record of proceedings in judicial review applications, not merely documents the administrator deems "relevant" to applicant-identified grounds. It represents an important check on attempts to limit access to information in the review of administrative action.