An enalysis of the rationale for obtaining leave in Judicial review matters in Zambia

Abstract

Owing to the mal-administration by public officers, there is need for the High Court to regulate the administrative actions of public officers by promoting access to justice to the victims of maladministration. From the point of view of the individual, access to justice refer to the right to seek a remedy before the court of law or a tribunal which is constituted by law and which can guarantee independence and impartiality in the application of the law. This dissertation focused on the analysis of the rationale for obtaining leave injudicial review matters in Zambia. It examined how the rationale for leave has been used by the court to protect the violated rights of individuals from administrative organs and how the violation can be effectively addressed through judicial review, which is a public law remedy. The objectives of the study include; understanding the scope of judicial review of administrative actions, the elements of leave in judicial review proceedings, why it is necessary to apply for leave injudicial review proceedings and what happens when leave is granted or when it is not granted. The study methodology was based on desk research, particularly collection of secondary data from both published and unpublished books as well as rulings arising from leave cases. The dissertation has established a number of shortcomings in the analysis of the rationale for obtaining leave in judicial review matters in Zambia. These include; the use of Order 53 as a foreign legislation makes the law somewhat uncertain in that the court may decline to strictly follow the procedure outlined under Order 53 and instead substitute its own procedure, the discretion given to judges when granting leave and judicial remedies, exparte applications,no universally accepted standard to determine frivolous, vexatious and unmeritorious matters and inadequacies of Order 53 in addressing the issue of what sufficient interest exactly is.The dissertation recommends that there is need to have a domestic legislation which will take into consideration the prevailing legal system in Zambia by clearly outlining the procedure for judicial review proceedings. It further recommends the introduction of the move away from ex parte to inter parte application at the leave stage. This will require the claimant to gather all the relevant materials and disclose their case in full to the defendant, while the defendant only has to give his defence in outline. Furthermore, it recommends the enactment of an Act of Parliament stating who may make a claim for judicial review and establishing criteria of what exactly constitutes sufficient interest.