Constitutional Court of South Africa does not seem to support this view wholesomely. According to the said
Court at paragraphs 49, 50 and 51:
“What section 35(3) and section 33(3) of the interim Constitution make clear is that the Constitution was not
intended to be an exhaustive code of all rights that exist under our law. The reference in section 33(3) of the
interim Constitution and section 39(3) of the 1996 Constitution is to “other rights”, and not to rights
enshrined in the respective Constitutions themselves. That there are rights beyond those expressly
mentioned in the Constitution does not mean that there are two systems of law. Nor would this follow from
the reference in section 35(3) of the interim Constitution and section 39(2) of the 1996 Constitution to the
development of the common law. The common law supplements the provisions of the written Constitution
but derives its force from it. It must be developed to fulfil the purposes of the Constitution and the legal
order that it proclaims — thus, the command that law be developed and interpreted by the courts to
promote the “spirit, purport and objects of the Bill of Rights.” This ensures that the common law will evolve
within the framework of the Constitution consistently with the basic norms of the legal order that it
establishes. There is, however, only one system of law and within that system the Constitution is the
supreme law with which all other law must comply. What would have been ultra vires under the common
law by reason of a functionary exceeding a statutory power is invalid under the Constitution according to
the doctrine of legality. In this respect, at least, constitutional law and common law are intertwined and
there can be no difference between them. The same is true of constitutional law and common law in respect
of the validity of administrative decisions within the purview of section 24 of the interim Constitution. What
is “lawful administrative action,” “procedurally fair administrative action” and administrative action
“justifiable in relation to the reasons given for it,” cannot mean one thing under the Constitution, and
another thing under the common law.… Although the common law remains relevant to this process, judicial
review of the exercise of public power is a constitutional matter that takes place under the Constitution and
in accordance with its provisions. Section 167(3)(c) of the Constitution provides that the Constitutional
Court “makes the final decision whether a matter is a constitutional matter”. This Court therefore has the
power to protect its own jurisdiction, and is under a constitutional duty to do so. One of its duties is to
determine finally whether public power has been exercised lawfully. It would be failing in its duty if it were
to hold that an issue concerning the validity of the exercise of public power is beyond its jurisdiction.”
109. In our view since the Constitution is incremental in its language, what the current constitutional dispensation
requires is that both the grounds and remedies in judicial review applications be developed and the grounds
for granting relief under the Constitution and the common law be fused, intertwined and developed so as to
meet the changing needs of our society so as to achieve fairness and secure human dignity. It is within
those prescriptions that judicial review is seen in our context. But care should be taken not to think that the
traditional grounds of judicial review in a purely judicial review application under the Law Reform Act and
Order 53 of the Civil Procedure Rules have been discarded or its scope has left the airspace of process
review to merit review except in those cases provided in the Constitution; and this we have discussed
elsewhere in this judgement. In other words the categories of judicial review grounds are not heretically
closed as opposed to their being completely overtaken or that the Court’s jurisdiction under Order 53 of
the Civil Procedure Rules should include merit review. Once that distinction is made, there shall be little
difficulty for this Court to maintain that it should and shall be concerned with process review rather than merit
review of the decision of the Respondent Board given the statutory circumstances of this case.