How should courts balance a tailored statutory appeal with the broader scope of judicial review in administrative decisions? In Commissioner for the South African Revenue Service and Another v Richards Bay Coal Terminal (Pty) Ltd, the courts examined whether the specific appeal remedy under the Customs and Excise Act excludes the right to judicial review. With lower courts providing differing interpretations, the Constitutional Court's analysis clarifies that while both remedies are available, the appropriate choice depends on the circumstances and the need for transparency and accountability in administrative processes.
Application was instituted in the high court for an order that several decisions taken by SARS be declared unconstitutional and unlawful, alternatively, that the decisions be reviewed and set aside. The applicants relied on their internal right of appeal in terms of the Customs and Excise Act ("CEA"); right of judicial review through the Promotion of Administrative Justice Act and alternatively, the right to review on the grounds of legality.
The High Court had to consider whether the internal appeal remedy provided in section 47(9)(e) of the CEA excluded the applicants from relying on judicial review. Section 47(9)(e) of the CEA provided for an appeal in the wide sense, namely a complete rehearing of the matter, as opposed to a review or appeal in the strict sense.
The high court held that the applicants were not outside from relying on judicial review, considering that there was no explicit clause in the CEA excluding other remedies. The court confirmed the principle that a party is only is restricted to a particular remedy, if it is clear from the language of the statute that such party is confined to a particular remedy (Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718). The court held that the exclusion of its review jurisdiction would have to be express or at least necessarily implied, which was not the present in the impugned statute and ordered SARS to comply with rule 53.
Supreme Court of Appeal
The SCA sought to express a view on the issue in order to resolve the discordant high court judgments on the issue and the public interest in the SCA expressing a view to assist future litigants. The court framed the question as simply as "does the fact that the CEA creates a tailor-made remedy, necessarily exclude a taxpayer's right of review?".
The SCA answered the question in the negative; and held that statutory appeal does not preclude people from instituting a review against that decision. It explained that PAJA was not ordinary legislation, and that consideration must first be given to whether the provisions of an Act that authorise administrative action can be read in a manner that is consistent with the Constitution. The SCA emphasised the importance of discovery through the rule 53 record as a means of uncovering the truth and emphasised that disclosure is important to transparency and accountability.
The Constitutional Court
The court dealt with the issue of ousting judicial review and reaffirmed the presumption in our law against the ouster of a court's jurisdiction. The court confirmed the rationale in Metcash Trading Ltd v Commissioner for the South African Revenue Service [2000] ZACC 21, namely that although a statute can create a tailor-made mechanism for challenging decisions, other remedies, including judicial review remains intact unless it is expressly excluded by the Act.
The court highlighted the distinction between review and appeal as explained in AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency [2013] ZACC 42; and explained that the lawfulness of the decision making process itself holds inherent value, regardless of whether the decision arrived at was right or wrong on its merits, and that this necessitates the right to judicial review.
However, the Constitutional court explained that the answer to the question framed in this case is more nuanced than a simple yes or no and requires further consideration of two issues.
First, the distinction between a court's assumption of jurisdiction and its exercise of that jurisdiction: Courts are entitled to refuse to exercise their jurisdiction of judicial review on the basis that a more specific remedy is available to the litigant, unless that specific remedy will not provide recourse in the particular circumstances. This is linked to the principle of subsidiarity and separation of powers. Second, how our law deals with instances where a party has two distinct remedies available to it.
The court concluded that an aggrieved taxpayer does not have an unlimited and unhindered choice of remedy to challenge a tariff determination and that the existence of wide appeal alongside judicial review is exactly the circumstances that would justify a court deciding whether to exercise their jurisdiction notwithstanding that they do indeed have jurisdiction.
The court concluded that both remedies co-exist, but that a court can refuse to exercise its review jurisdiction if the wide appeal is the more appropriate mechanism in the circumstances. In relation to the production of the rule 53 record, the court held that the high court must first determine whether to exercise its review jurisdiction considering that where review jurisdiction is not exercised, the right to a rule 53 record falls away. Therefore, the court remitted that matter to the High court to deal with principles regarding whether the exercise of their jurisdiction.
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