MEC for Health, Province of Eastern Cape NO and Another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute (473/12) [2013] ZASCA 58; 2014 (3) SA 219 (SCA) (16 May 2013)

Key Facts

Issues

• The court's jurisdiction to set aside administrative approvals granted by an acting official when the applicant did not seek their revocation, and the requirement for proper proceedings.
• The validity of decisions made by the acting superintendent-general to approve private hospital applications while the permanent superintendent was on leave, and whether those decisions can be revoked.
• Determining if the superintendent-general was functus officio when he attempted to revoke the acting official's approvals, thereby lacking the authority to do so.
• The regularity of the MEC's decision to uphold the revocation of approvals, which was based on a legal error regarding the functus officio principle.
• The validity of the superintendent-general's decisions to refuse applications for private hospitals, which were not communicated to the applicant and remained unsigned in the department.

Holdings

• The appeal is dismissed with costs because the superintendent-general was functus officio when revoking the acting superintendent-general's approvals, which could not be ignored as invalid administrative actions require judicial review to be set aside.
• The cross-appeal is upheld with costs as the court had no jurisdiction to set aside the acting superintendent-general's approvals since no proper application for their review was made by the appellants.

Remedies

• The cross-appeal is upheld with costs, including the costs of two counsel.
• The appeal is dismissed with costs, including the costs of two counsel.
• The order of the court below is amended by the deletion of paragraphs 1 and 4.

Legal Principles

• The functus officio rule applies to final administrative decisions, preventing officials from revoking them without statutory authority.
• Administrative action may only be set aside in proceedings properly brought for judicial review.

Precedent Name

• Hira & another v Booyse & another
• Queenstown Girls High School v MEC, Department of Education, Eastern Cape & others
• Beweging vir Christelik-Volkseie Onderwys & others v Minister of Education & others
• CUSA v Tao Ying Metal Industries & others
• Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
• Municipal Manager: Qaukeni Local Municipality & another v FV General Trading CC
• Oudekraal Estates (Pty) Ltd v City of Cape Town & others
• National Director of Public Prosecutions v Zuma

Cited Statute

• Interpretation Act 33 of 1957
• Health Act 66 of 1977
• Promotion of Administrative Justice Act 3 of 2000

Judge Name

• Meyer AJA
• Mthiyane DP
• Maya JA
• Plasket AJA
• Saldulker AJA

Passage Text

• I therefore conclude that Boya could not validly take the view that because the decisions taken by Diliza were invalid, he could treat them as nullities and formally revoke them. For as long as the decisions taken by Diliza had not been set aside on review they existed in fact and had legal consequences. As Boya had no authority arising from the empowering legislation to revoke final decisions already taken – much less in the absence of a hearing being granted to Kirland Investments – he was, in relation to the decisions taken by Diliza in her capacity as acting superintendent-general, functus officio.
• It is clear from the above that the Superintendent-General did not withdraw his own decision. He withdrew the decision of the Acting Superintendent-General which could and should not have been taken under the above circumstances. With respect, your contention that the Superintendent-General was functus officio is based on a wrong premise. In my view, the Superintendent-General was within his right to withdraw the Acting Superintendent-General's decision.
• Indeed, effective daily administration is inconceivable without the continuous exercise and re-exercise of statutory powers and the reversal of decisions previously made. On the other hand, where the interests of private individuals are affected we are entitled to rely upon decisions of public authorities and intolerable uncertainty would result if these could be reversed at any moment. Thus when an administrative official has made a decision which bears directly upon an individual's interests, it is said that the decision-maker has discharged his office or is functus officio.