Abstract

 This article reviews the interpretation of section 6(2)(a)ii of the Promotion of Administrative Justice Act which makes an administrator “biased or reasonably suspected of bias” a ground of judicial review. In this regard, the paper reviews the determination of administrative bias in South Africa especially highlighting the concept of institutional bias. The paper notes that inspite of the formulation of the bias ground of review the test for administrative bias is the reasonable apprehension test laid down in the case of President of South Africa v South African Rugby Football Union(2) which on close examination is not the same thing. Accordingly the paper urges an alternative interpretation that is based on the reasonable suspicion test enunciated in BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers Union and R v Roberts. Within this context, the paper constructs a model for interpreting the bias ground of review that combines the reasonable suspicion test as interpreted in BTR Industries and R v Roberts, the possibility of the waiver of administrative bias, the curative mechanism of administrative appeal as well as some level of judicial review exemplified by the jurisprudence of article 6(1) of the European Convention of Human Rights, especially in the light of the contemplation of the South African Magistrate Court as a jurisdictional route of judicial review.
 
Highlights
E S Nwauche∗In South Africa, section 6(2)(a)ii of the Promotion of Administrative Justice Act provides that it is a ground for judicial review if in taking an administrative action, an administrator “was biased or reasonably suspected of bias”
It is hoped that the South African Constitutional Court will at the earliest opportunity interpret the provisions of section 6(2)a(ii) of PAJA in a manner that reinforces the BTR Industries and Roberts test
Industries and Roberts test reduces the threshold for the finding of bias and ensures the strengthening of public confidence in the administrative structures of the State
Summary
In South Africa, section 6(2)(a)ii of the Promotion of Administrative Justice Act provides that it is a ground for judicial review if in taking an administrative action, an administrator “was biased or reasonably suspected of bias”. Respectively and reflects one of the rules of natural justice, the other being the right to a fair hearing It is because no direct judicial interpretation of the bias ground for review has been undertaken by South African courts that I argue in this paper that there is a need for this interpretation and that what is at present applied as the test for administrative bias, namely the reasonable apprehension test enunciated in the case of President of the Republic of South Africa v South African Rugby Football. I construct a model for determining administrative bias that combines the reasonable suspicion test and the curative mechanism of administrative appeal, as well as some level of judicial review This is exemplified by the jurisprudence of article 6(1) of the European Convention of.
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