A decision of a valuation appeal board is functus officio, meaning that a decision taken by a board is valid until it is reviewed by a higher authority.
“The Functus Officio doctrine is one of the mechanisms through which the law gives expression to the principle of finality. According to this doctrine, a person, who may include an administrator or a quasi-judicial tribunal, such as a VAB, who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter (Practical Guide on Municipal Property Rates p178 & 179).
A review application to the High Court in South Africa is a legal process where a party seeks to challenge the decisions or actions of a lower court, tribunal, or administrative body on the grounds that the decision was incorrect, unfair, or unlawful. This process is distinct from an appeal, as it focuses on the procedural and substantive fairness of the decision-making process rather than the merits of the decision itself.
Grounds for Review
Under South African law, the grounds for review are typically based on the principles established in the Promotion of Administrative Justice Act (PAJA) and common law. These include:
- Procedural fairness: Whether the procedure followed in making the decision was fair.
- Lawfulness: Whether the decision was made within the legal framework and authority.
- Reasonableness: Whether the decision was rational and justifiable.
Grounds for review applications include:
- Bias or conflict of interest: The decision-maker had a personal interest in the outcome.
- Error of law: The decision was based on an incorrect interpretation of the law.
- Failure to follow procedures: The decision-maker did not follow prescribed procedures.
- Irrationality or unreasonableness: The decision was not rationally connected to the information before the decision-maker.
Process of review application
- Reasons for the decision: The applicant should request the written reasons for the decision.
- Notice of motion and founding affidavit: The applicant must file a notice of motion and a founding affidavit detailing the grounds for review and the relief sought. The affidavit should contain all relevant facts and evidence.
- Service of documents: The notice of motion and founding affidavit must be served on all relevant parties, including the decision-maker and any other parties affected by the decision.
- Record of proceedings: The decision-maker is required to provide the record of the proceedings that led to the decision being reviewed. This includes all documents, evidence, and reasons for the decision.
- Answering affidavit: The respondents (including the decision-maker) have the opportunity to file an answering affidavit to oppose the review application.
- Replying affidavit: The applicant may file a replying affidavit to address issues raised in the answering affidavit.
- Heads of argument: Both parties will submit heads of argument outlining their legal submissions and the basis of their case.
- Hearing: The matter is set down for a hearing before a judge in the High Court, where both parties will present their arguments.
- Judgment: The judge will deliver a judgment, which may confirm, set aside, or vary the decision under review. The court will usually refer the matter back to the VAB for reconsideration.
Timeframes
Review applications must be brought within a reasonable time. Under PAJA, the application must be filed within 180 days of the date on which the applicant became aware of the decision. If the application is filed outside this period, the applicant must seek condonation from the court, explaining the delay and why it should be excused.
Remedies
The High Court has wide discretion in granting relief in review applications. Possible outcomes include:
- Setting aside the decision: The court may nullify the decision.
- Remitting the matter: The court may send the matter back to the decision-maker for reconsideration, often with specific instructions.
- Substituting its decision: In rare cases, the court may substitute its decision for that of the decision-maker.
Legal representation
Given the complexity of review applications, parties should seek legal representation to navigate the procedural and substantive aspects of the process.
Section 3 of PAJA provides that:
- Administrative action which materially and adversely affects the rights or legitimate expectations of any person, must be procedurally fair;
- A fair administrative procedure depends on the circumstances of each case;
- …
- (a) if it is reasonable and justifiable in the circumstances, an administrator may depart from any of the requirements referred to in subsection 2.
(b) In determining whether a departure as contemplated in paragraph (a) above is reasonable and justifiable, an administrator must take into account all relevant actors, including-- the objects of the empowering provision (in this instance section 52)
- the nature and purpose of, and the need to take the administrative action;
- the likely effect of the administrative act
- …
- the need to promote an efficient administration and good governance.
- Where the administrator is empowered by any empowering provision to follow a procedure which is fair but different from the provision of subsection (2), the administrator may act in accordance with that different procedure.”
This article was written by Ben Espach from Rates Watch.
Ben Espach
Past president, South African Institute of Valuers, Ex Deputy Director Valuations Tshwane, Fellow and Life Member of the South African Institute of Valuers. Part of the task team responsible for the drafting of the Municipal Property Rates Act of 2004.
