The ManicaPost
Trust Maanda
Legal Position
VARIOUS statutes have certain administrative mechanisms by which a litigant may seek a remedy.
The administrative remedies provided for in the relevant statutes must be followed to the end, and one then, either appeals or files a review to an appropriate court after pursuing the internal remedies in the statute.
That is what is commonly known as exhausting domestic remedies.
Courts are slow to intervene in matters where the legal remedies in a statute available to a party to a dispute have not been exhausted.
For example, the Labour Act has procedures and remedies that are provided for resolution of labour disputes before approaching the Labour Court.
The Income Tax Act provides for issues to do with taxes and how one has to use the procedures in the Act to pursue their remedies.
The Mines and Minerals Act (Chapter 21:05) and many different statutes have ways in which redress to complainants can be sought and granted.
Another example is a company code of conduct which may provide for how grievances or disciplinary actions should be resolved up to the last stage within a company establishment before the dispute spills into court.
A litigant should exhaust the domestic remedies provided for in the internal mechanisms before approaching a court unless there are good reasons for not exhausting the domestic remedies available.
If the domestic remedies are capable of providing effective redress of the complaint and the unlawfulness alleged has not been caused by the domestic remedies themselves, a litigant should exhaust domestic remedies before approaching the courts, unless there are good reasons for not doing so.
The duty to exhaust domestic remedies has exceptions.
There must be good reason why a litigant cannot exhaust the domestic remedies available to him.
A litigant is not expected or required to pursue domestic remedies where the domestic remedies available are incapable of affording effective redress, are unfair, or cause undue delay.
The duty to exhaust domestic remedies applies equally to tax cases.
Where a dispute is capable of resolution by way of an objection and appeal, the taxpayer is required to exhaust the domestic remedies prescribed in the Act.
Where a court is not satisfied that a litigant has exhausted internal remedies available to him, it may decline to adjudicate the matter.
Some of the factors to be considered in determining whether the court can decline its jurisdiction until domestic remedies are exhausted were considered in Lawson v Cape Town Municipality 1982 (4) SA 1 at 6H to 7A (S).
COMRIE J said: “Among these are: the subject matter of the statute (transport, trading licences, town planning and so on); the body or person who makes the initial decision and the bases on which it is to be made; the body or person who exercises appellate jurisdiction the manner in which that jurisdiction is to be exercised, including the ambit of any re-hearing on appeal, the powers of the appellate tribunal, including its power to redress or cure wrongs of a reviewable character; and whether the tribunal, its procedures and powers are suited to redress the particular wrong of which an applicant complains.”
In the absence of any reasons for not exhausting domestic remedies, the courts are slow to exercise discretion in favour of hearing the matter.
They decline to exercise their jurisdiction.
The reasons for the need to utilise domestic remedies are many.
Domestic mechanisms are specialised and they deal with specialised issues.
They can deal with these matters much more expeditiously.
The courts do not want to create unnecessary backlogs by dealing with matters that specialised courts or tribunals and forums deal with.
The reviewing courts do not want to exercise jurisdiction where their jurisdiction is concurrent with a lower tribunal’s jurisdiction.
If they make a mistake as a court of first instance there will be no body to review their decisions whereas if a mistake is made by a lower tribunal the court can correct the mistake.
Because the reviewing courts usually do not deal with matters on their merits, they remit the matters back to the domestic tribunals.
In a review, the court will normally focus on procedural irregularities and not the substance or merits of the case.
Where administrative bodies that are tasked with administering a statute make a decision, the courts called upon to review their actions normally defer to those bodies’ decisions in accordance with the principle of judicial deference.
Judicial deference to other administrative bodies or mechanisms for redress is appropriate particularly where the subject-matter of an administrative action is very technical or of a kind in which a court has no particular expertise or proficiency.
The court cannot pretend to have the skills and knowledge that is available to the officers tasked with the functions provided for in particular statute.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or [email protected]
