Challenge to regulations and other regulatory action

Patrick Bracher from Norton Rose Fulbright.

We have been reminded again that regulations that are unreasonable and irrational can be challenged under the Promotion of Administrative Justice Act (PAJA). Regulations are made under empowering provisions in the governing law, have a direct external legal effect on the parties they apply to, and adversely affect the rights of persons in the industry concerned.

This was reaffirmed in SA Dental Association v Minister of Health 2015 ZASCA 163. The court also reminded us that if subordinate legislation is to be challenged it must be done in terms of PAJA which usually requires action to be taken within 180 days of the regulation or other regulatory requirement being brought into force.

These principles apply equally to all subordinate legislation such as board notices, directives and standards. It does not apply to guidance notes. Those set out how the regulator will interpret legislation but those views can only be challenged when they are applied in a specific matter. The fact that subordinate legislation is subject to challenge under PAJA is recognised in the new Insurance Bill.

(The South African Dental Association PLC v The Minister of Health (20556/2014) [2015] ZASCA 163 (24 November 2015).

First published by Financial Institutions Legal Snapshot.