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    PBL Notes 8

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    mlotshwankosana30
    The document discusses the standards of administrative justice in South Africa. It explains that administrative action must be lawful, procedurally fair, and reasonable to be considered just according to Section 33 of the Constitution. [Administrative action can be challenged in court if it violates these standards of lawfulness, fairness, and reasonableness as outlined in Section 6(2) of PAJA.] Conduct must also not fall under the defined exclusions to be subject to judicial review. The grounds of review are meant to develop the common law standards and regulate the exercise of public power.

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    PBL Notes 8

    Uploaded by

    mlotshwankosana30
    9 views5 pages
    The document discusses the standards of administrative justice in South Africa. It explains that administrative action must be lawful, procedurally fair, and reasonable to be considered just according to Section 33 of the Constitution. [Administrative action can be challenged in court if it violates these standards of lawfulness, fairness, and reasonableness as outlined in Section 6(2) of PAJA.] Conduct must also not fall under the defined exclusions to be subject to judicial review. The grounds of review are meant to develop the common law standards and regulate the exercise of public power.

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    PBL NOTES 8

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    The document discusses the standards of administrative justice in South Africa. It explains that administrative action must be lawful, procedurally fair, and reasonable to be considered just according to Section 33 of the Constitution. [Administrative action can be challenged in court if it violates these standards of lawfulness, fairness, and reasonableness as outlined in Section 6(2) of PAJA.] Conduct must also not fall under the defined exclusions to be subject to judicial review. The grounds of review are meant to develop the common law standards and regulate the exercise of public power.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    9 views5 pages

    PBL Notes 8

    Uploaded by

    mlotshwankosana30
    The document discusses the standards of administrative justice in South Africa. It explains that administrative action must be lawful, procedurally fair, and reasonable to be considered just according to Section 33 of the Constitution. [Administrative action can be challenged in court if it violates these standards of lawfulness, fairness, and reasonableness as outlined in Section 6(2) of PAJA.] Conduct must also not fall under the defined exclusions to be subject to judicial review. The grounds of review are meant to develop the common law standards and regulate the exercise of public power.

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    of 5

    Week 8: The type of conduct that is subject to the requirements of admin justice: the

    meaning of ‘admin action’ - The impact Threshold

    We have studied thus far from week 6 – 7 that the definition of administrative action includes
    that the conduct must have an adverse, direct, external impact on rights and its not covered
    under the exclusions.

     Adverse impact on rights: This aspect of the definition is satisfied when conduct
    affecting existing rights has the capacity to affect rights to be acquired in the future
    (needs not be immediate). The term ‘rights’ has been broadly construed to include
    Legitimate expectations and substantial interests and not only traditional rights.
     An impact will be adverse when rights are determined and not only when someone is
    deprived of rights.

    The question when a decision adversely affect rights was dealt with in:

    1. Grey’s Marine Hout Bay Case where the court held that while PAJA’s
    definition purports to restrict admin action to decisions that as a fact,
    “adversely affect the rights of any person”, I do not think that literal meaning
    could be intended.
    2. Scalabrini 2: This case presents an example of a case where rights of
    foreigners (anyone in the republic) were adversely affected by the closure of
    the refugee office.
     Direct, external effect: a decision must not be ‘internal’ to the decision-maker, but
    must have been finally made and conveyed, externally, to an affected person.
    HOWEVER, preliminary decisions in a multi-stage decision-making process may be
    ‘final in effect’.

    The question of when a decision is final (immediate rather than preliminary) in effect was
    addressed in the Oosthuizen’s Transport case, there was a trucking company with a fleet of
    233 vehicles. Numerous overloading offences were committed by drivers of these vehicles in
    contravention of the National Road Traffic Act, the MEC appointed an investigation into the
    allegations and directed them to make a written recommendation regarding what measures
    should be taken. The company argued that it had the right to be heard in the investigation.
    The Investigation Team said that only the MEC’s final decision was reviewable and the court
    held that although the investigation team’s recommendation is only preliminary, it is a
    determination that lays the foundation for (likely will be the final decision itself) for the final
    decision, thus, constitute admin action in that it has the capacity to effect rights.

    Conduct specifically excluded from the definition of admin action

    The idea that some conduct is specifically excluded from the ambit of ‘admin action’ in
    section 1 of PAJA is linked to the idea that it is not appropriate for the admin law’s standards
    to regulate all exercises of public power (in essence, some conduct ought not to be regulated
    by PAJA and legality is sufficient). These are the subjects of Section 1 (aa) to (ii) for three
    reasons:

    1. Desirability – ss (aa) – (cc), (ee) and (ff)


    2. Impossibility – ss (cc), (dd)
    3. Necessity – ss (dd), (gg), (hh) and (ii)

    Study Unit 3: Introduction to the standards of admin justice

    First go back to Week 4 notes!!!

    Standards of review grounds are three fold: lawful, fair and reasonable. PAJA says that
    conduct that is admin act and fails to adhere to these standards will be reviewable in a court
    of law (judicial review) under section 6(2) of PAJA.

    In such processes, the courts exercises its functions in a manner that complies with the law so
    courts in judicial review proceedings don’t generally look at whether the administrator took
    the correct decision (not an appeal function) instead they look at the way in which the
    decision was taken, ‘whether the decision was taken in a manner consistent with the demands
    of lawfulness, fairness and reasonable’ (review function).

    Accordingly, judicial review is a Special Dispute Resolution Procedure that developed under
    the common law in terms of which court scrutinize admin action against the rules or
    requirements or standards of admin law. Judicial review is now constitutionally sanctioned by
    section 33 of the Constitution.

    Admin law functions as an incident of the separation of powers pursuant to which the courts
    regulate and control the power of the other branches of gov in the running of the state, this
    was acknowledged in the Pharmaceuticals Manufactures case. In instances where conduct is
    not admin action but is public power – review may occur on the basis of legality which
    requires that conduct must be lawful and rational.

    There is obviously an overlap between the requirements of administrative justice and the
    requirements of legality, however, when the conduct is admin action the principle of
    subsidiarity tells us that we must review conduct in terms of PAJA which gives effect to
    section 33 of the Constitution and not legality.

    The grounds of review are set out in Section 6(2) of PAJA wherein which admin action can
    be scrutinised, or reviewed conduct can often be reviewed on more than one ground and
    usually someone who is challenging administrative action will try and find as many things
    wrong with the conduct as possible to raise as many grounds of review as may be applicable
    and we will be working through these number of grounds. While in this process, we need to
    recognise that section 6(2) doesn’t follow a logical structure. The three grounds: Lawfulness,
    fairness and reasonableness (these overlap). These grounds codify and develop the common
    law.

    Standard for just ‘admin action’.

    Section 33 requires that in order to be ‘just’ admin action must be:

    1. Lawful: Action within the law (intra vires rather than ultra vires) – all are to adhere
    to the law, including the state.
    2. Procedurally fair: Follows a fair process (see sec 3 and 4 of PAJA) – what is fair
    will depend on the circumstances. In essence, this means an absence of bias
    (impartiality).
    3. Reasonable: There must be justification for decisions such that they are:
    a. Rational (always)
    b. Effective (most of the time)
    c. Proportional (only some of the time).

    Section 33 requires that reason be afforded for admin action on request. Conduct that
    amounts to admin action under PAJA and is allegedly inconsistent with the standard for just
    admin action may be scrutinised on the grounds provided for in section 6(2) of PAJA in
    judicial review proceedings, and may be found by a court to be invalid.

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