Abstract

Despite the practical importance of facts and evidence to judicial review, scant attention has been given to these themes in South African administrative law. This accords with a tendency to neglect factual questions in public-law scholarship more generally. With reference to the two main pathways to judicial review, the Promotion of Administrative Justice Act 3 of 2000 and the constitutional principle of legality, this article explores the South African courts’ treatment of facts in administrative-law review and offers suggestions as to how some factual questions might best be approached in future. First, the article considers two grounds of review that relate to facts in an explicit way and that illustrate the courts’ supervision of facts relied upon by administrators in the course of their decision-making. Secondly, courts sometimes scrutinise the expected impact of an administrative act or the administrator’s consideration of its benefits and costs, especially when the review challenge is based on the substantive grounds of rationality or reasonableness. Thirdly, in relation to remedy the article examines the relevance of facts and information when a court is deciding whether to set aside administrative action and whether an order of substitution is justified.