This blog was co-authored by Candidate Attorney, Felix Le Roux.

In a previous blog, we pointed out that the ambit and limitations of PAJA review proceedings are frequently misconstrued, and that PAJA reviews are limited to the review grounds available and raised by the applicant in terms of PAJA. In a September 2023 judgment, the Johannesburg High Court confirmed that a review court is not at liberty to substitute its opinion for that of the administrator in question.

The matter arose from the JSE’s finding that a director had breached the JSE Listing Requirements by failing to exercise his fiduciary duties. The JSE imposed a R2 million fine and the publication of a censure announcement. The director applied to the Financial Services Tribunal for the suspension of these sanctions pending the reconsideration of the JSE’s finding by the Tribunal. The Tribunal decided to suspend the fine but declined to suspend the publication of the censure.   

The director applied to the High Court for an order setting aside the Tribunal’s decision not to suspend the publication of the censure. His grounds of review were that the Tribunal attached too much weight to his slim prospects of success in the main reconsideration application and too little weight to the potential harm the public censure would cause to his reputation.   

The court stated that if it were in the shoes of the Tribunal, it might have concluded that it is inappropriate to deal with the suspension of the JSE’s sanctions in a piecemeal fashion and that either both or none of the sanctions should be suspended. However, the court emphasised that administrative decisions are not reviewed based on whether they align with what the reviewing court would have done in the shoes of the decision-maker. Rather, they are reviewed based on whether the decision was rational, reasonable, lawful and procedurally fair with reference to the review grounds raised by the applicant. These objective factors are assessed in the context of:

• the nature and purpose of the power being exercised by the decision-maker;
• the facts on which the decision was based; and
• the reasons for the decision.  

On application of these factors, the court held that the weight attached by the Tribunal to the considerations in question did not deprive the decision of a rational basis. Accordingly, the Tribunal did not commit a reviewable error. The review application was dismissed and the director was ordered to pay the JSE’s costs.