UNIT 1: The development

of administrative law in
South Africa
§33 of the Constitution
(1) Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written
reasons.
(3) National legislation must be enacted to give effect to
these rights, and must
(a) provide for the review of administrative action
by a court or, where appropriate, an independent
and impartial tribunal;
(b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
(c) promote an efficient administration.
Introduction
• Consider the terms ‘administrative’,
‘administration’ and ‘regulation’
• How do they relate to public power?
• How do they relate to the rule of law?
• Chapter 1 contextualises these concepts and
questions
• Defining administrative law
• Origins and development
• Basic building blocks
ZONDO Commission

State Capture?
Relevant issues/actions: Someone in a
• Awarding of tenders position of
• Conclusion of contracts contrary to legal prescriptions power made

• Tegeta a decision
that negatively
• Swifambo (Buying of locomotives) impacts on the
• Appointment of members to boards of SOEs lives
of taxpayers
• Dismissal of staff insisting on following the legal prescriptions and other
• Dismissal of whistle blowers citizens
• Investment of public servants’ pension funds
 • Part of constitutional law
• empowers all those exercising public
authority or performing public
functions
NB! Working • through the law
definition: • holds accountable all those who
Administrative exercise public power or perform
law public functions
• to rules of law
Exercise of public power and
Performance of public functions
 KEY ASPECTS OF
DEFINITION
• Part of constitutional law
• Administrative law has a dual nature
• Authorisation and regulation
(empowerment and
accountability)
• Key concepts:
• administrative justice (which is
generally wider than
administrative law)
• public authority/functions –
emphasis on the public nature of
the authority and the function.
• Rule of law:
• Think about the principles
underlying the rule of law and
how it relates to admin law.
 • Understanding the development –
understanding content of today’s administrative
law
Development • Development informs the meaning and
interpretation of current administrative law
of South • Learn from past errors
• English Law remains a strong and enduring
African influence
• Example: the primacy of judicial review
administrative • Six factors that shaped development
law • The public versus private sphere
• What is public? What is private? This has
changed over the last 100 years.
• State’s role increased
• Increased even more following WWII – same
trend in South Africa.
 • Increase in discretionary power
• As the role of the state increased,
so did the need to hand over some
Development power – away from Parliament to
administrators.
of South • Delegation and sub-delegation
African • Person with the power given in
law – hands over power to
administrative another person to act on its
behalf.
law • Act of delegation expressly
foreseen in and authorised by the
legislation – easy.
• Implied delegation
• Section 238 of the Constitution
 • Executive vs administrative authority NB!
• Common law – classification of functions in 5
categories.
• This determined the administrator’s level of
discretion, and the court’s power to scrutinise
on review.
Development • Constitutional Court after 1994:

of South
• Determine limits or power to review
• Developing an understanding of the

African
separation of powers.
• Executive power – high levels of discretion for
decision-maker
administrative • Public administration

law
• Level of discretion may be high, but never
above the law
• Review based on the principle of legality for
action not reviewable as administrative action
– therefore all exercises of power are
reviewable.
• Executive action and administrative action
• Administrative-law review vs legality review
 • Distinguishing formally between review and
appeal NB!

Development
• Important to understand because this is
critical when you work with reasonableness
ground of review and deference. See Chapter
7 later!

of South • Crucial to understanding of administrative

law! Must be able to define and compare.

African
• Rationale for this distinction is the doctrine of
the separation of powers.
• Judicial review proceedings: the court does
not assess the correctness of a decision.

administrative • Both appeal and review consider the merits of

a decision, but for different purposes.

law
• Review is concerned with how the decision
was taken, (must comply with all law)
• Appeal is concerned with whether the correct
or best decision was taken, merits, substance.
• Carephone v Marcus NO & Bel Porto 1999 (3)
SA 304 (LAC): para 36.
APPEAL REVIEW
NB! Appeal and review
Decision-maker came to Did the decision-maker make
wrong conclusion on facts or his/her decision in an
law acceptable manner?
How did the decision-maker • Distinction is less evident with the inclusion of
come to the conclusion?
the test for reasonableness in reviewing
decisions
• Separation of powers
Deals with merits of case Deals with the process
• Courts should not pronounce on the merits
of admin decisions
Was the decision right or Was the process or decision- • Be careful not to decide on merits of
wrong? maker fair/impartial/all the
evidence considered?
decision – should not usurp powers of
Decision-maker the admin
designated official? • Reasonableness and deference
 • Peculiar character of South African administrative
law NB!
• Impact of the racist policies of segregation of
Development apartheid government on the development of
admin law
of South • Judicial review developed in the area of
African classification of race.
• Classification was an administrative decision –
administrative some discretion.

law • Parliamentary supremacy

• Security legislation and high levels of discretion
for executive and police.
• Application for judicial review.
 • Locus standi in judicio - Standing
• Only those directly affected had standing
• Ouster clause

Capita Selecta • Legislation excluding the right to judicial review

• Ultra vires doctrine
of basic • Act beyond powers
• Lawfulness
terminology • Grounds for review
• Grounds to set decisions aside
• Lawfulness, Procedural fairness, Rules of natural
justice, Rationality, Reasonableness
• Reasons
 1st stage:

• Breakwater Declaration
Reform of • Proposal: Right to administrative
South African justice
administrative
law 2nd stage:

• Interim Constitution, section 24

• Threshold requirements
• AA: lawful, procedurally fair, justifiable
• Reasons
 • 3rd stage:
• Final Constitution, section 33
• Addition of reasonableness, in place of justifiability
• NB! Note section 33(3)
Reform of • NB! Operation of section 33 of the Constitution was

South African
suspended until legislation giving effect to section 33(3)
was promulgated;

administrative §33 of the Constitution

law (1) Everyone has the right to administrative action that is lawful, reasonable
and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and
must
(a) provide for the review of administrative action by a court
or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.
 • 4th stage:
• Promotion of Administrative Justice Act
Reform of (PAJA) enacted in 2000
South African • PAJA: when did it become operational?
• PAJA in line with section 36 of the
administrative Constitution?
law • PAJA actually limits the section 33
rights, but limitations must comply with
the requirements in the limitations
clause (section 36).
• No court has as yet pronounced on this
question.
Outline of the general structure of PAJA –
Overview
• Short statute – barely 10 sections
• Many definitions
• Most important of definitions: Administrative action
• This definition acts as a gatekeeper
• What is the rationale for ‘gatekeeping device’? Defining the type of
conduct to which the Act applies (through the definition) restricts the
action which is reviewable. Limits the number of cases of review.
• See also § 33(3)(c) of the Constitution – balance accountability with
efficiency.
 • Administrative action (‘AA’)
Outline of the • Complex definition, consists of a number of
general elements
• Exclusions (link to the separation of powers)
structure of • Omission can qualify as AA
PAJA – • Who can perform AA? Private person?
• 7 Elements
Overview • NINE exclusions: Links to the separation of powers
Definition of • Executive and legislative functions at national, provincial
and local levels
administrative • Actions of judges, magistrates and traditional leaders
when dispensing justice
action - §1(i) of • A decision to institute or continue a prosecution
• Decision of the Judicial Services Commission in any part
PAJA of the appointment process of judges
• Two other relatively minor but specific acts of
administration.
 Exercising a public power or
performing a public function.
By organ of state Empower-
or ing provision
natural or juristic
person

That adversely affect

rights.
A decision or failure to
take a decision:
Direct,
(i) Of an administrative
external,
nature
legal effect
(ii) Made under an
empowering
provision.

Administrative Action in terms of PAJA

Outline of the general structure of PAJA –
Overview
• Section 2 – never been used

• Sections 3, 4 and 5: procedural fairness and reasons (link to section 33 Constitution)

• Section 6: NB! to course: sets out grounds for review
• AA challengeable under more than one such ground;
• clarity to the idea of review of ‘reasonableness’ (§ 6(2)(h)); and
• § 6(2)(i) list of grounds open for further development.
• Not a closed list
• Section 7: procedures
• Section 8: remedies
• Section 9: timelines
• Regulations
Avenues to judicial review of admin action
in South Africa
• Via administrative action – NB definition for AA in section 1 PAJA
• Does conduct fall within definition? YES? Then follow PAJA
• Most commonly used, provides widest range of grounds of
review and remedies.
• If not administrative action, but qualifies as executive action –
action reviewable, review against standards of principle of
legality.
• Lawfulness, rationality and honesty, sometimes procedural
fairness, reasons.
• Special statutory review mechanism – e.g., government
employment: special statutory review mechanism must be used,
unless public impact.
• § 33 of the Constitution –administrative action, but concerns
about the constitutionality of a provision of PAJA – courts use
§33 benchmarks
• Common law – e.g., private body acts.
• Procedural fairness, rationality, lawfulness
Current state of Administrative Law
• Main characteristics
• Basis of judicial review: Constitution, specifically §§ 1(c),
33 and 195 – not ultra vires doctrine.
• Review via PAJA: dominant form of public-power
regulation. Most acts of the public administration pass
the gatekeeper’s test.
• Public procurement qualifies as administrative action.
• Other special statutory regimes apply rather than PAJA.
• Administrative justice used to challenge government’s
failure to provide socio-economic rights.
• Judicial review of acts that are not administrative action
– via legality. Constrained by deference.
• “Just and equitable” remedy – wide authority.
• Standing.
 Current state of Administrative Law

• Challenges
• Formalism of administrative action definition
– detracts from achievement of
administrative justice.
• Legality review v PAJA review: Two avenues
of review will soon converge – contrary to
the intention of §33.
• Meaning of deference? No predictable
approach established as yet.
• Prominence of judicial review in regulation –
access to administrative justice reserved for
very few. No development of alternative
avenues.