n South African Law Journal - The status and force of defective administrative decisions pending judicial pronouncement
|Article Title||The status and force of defective administrative decisions pending judicial pronouncement|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Author||Daniel Malan Pretorius|
|Publication Date||Jan 2009|
|Pages||537 - 565|
The decision in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) has been construed as authority for the proposition that apparently invalid administrative decisions stand, and must be regarded as operative, until set aside on judicial review. However, Oudekraal was concerned with a narrower question, namely the effect of an invalid prior administrative act upon a subsequent administrative act performed pursuant to the initial act. In this regard, the Supreme Court of Appeal held that where a 'second actor', assuming the initial act to be valid, performed a subsequent act, and where the factual existence rather than the substantive validity of the initial act was a precondition for the validity of the subsequent act, the latter act could be regarded as valid until the initial act was set aside.
To the limited extent that Oudekraal was concerned with the broader question whether administrative action must be treated as valid until set aside on review, it confirms a different principle (for which there is ample authority) : where an administrative body requires a person to do, or to refrain from doing, something, and that person doubts the lawfulness of that requirement, he may ignore it, await events and, if enforcement proceedings are instituted against him by the administrative body, he may raise a collateral challenge to the validity of the relevant administrative act. The courts accept that administrative action characterized by flagrant invalidity (for example, where the relevant act was manifestly beyond the decision-maker's jurisdiction, or where there was a complete failure of natural justice) may be ignored with impunity and without having the impugned act set aside. However, it would often be prudent to seek judicial intervention and to obtain a definitive pronouncement on the validity or otherwise of the impugned act.
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