1.

Sources of Admin Law:

Judicial review in administrative law cases

An administrative law case is one where s 33 and PAJA might apply (i.e. the court has to
inquire into whether or not the conduct at issue is administrative action, and determine the
correct justification of its power to review the conduct).

“Today the main explanation for the ability of judges to intervene in administrative
[law] matters is to be found in the rights to administrative justice entrenched in s
33 of the Constitution.”– Hoexter,p117

Despite this “main explanation” there are a “proliferation of pathways” or many“ avenues”
to judicial review.
Sources of Administrative Law have a dual function in that some work to constraint the
exercise of powers and the others are empowering sources in that they tell the holder of
public power what power they may exercise. These are categorised as follows:
CONSTRAINING SOURCES EMPOWERING SOURCES

The Constitution These are consist of

 Section 1(c) which reflects the fundamental values of statutes, regulations,
the rule of law (the principle of legality is founded on policy documents,
these values and requires that all public power must be common law powers that
lawfully and rationally exercised). confer power on
 Section 33 reflects the right to just administration (when administrators.
public power amounts to administration action,
everyone has a right to have that power performed in a Empowering provisions
manner that is lawful, fair and reasonable and the holder would then confer power
of the power is subject to a duty to provide reasons). on a body, to “do
 Section 195 reflects the principles which govern the something” in a
conduct of public administration. particular situation, in a
PAJA particular manner where
 PAJA is a constitutionally ordained statute which necessary.
specifically introduced to provide a cause of action for
 Eg. Section 12(4) of
the judicial review of conduct that amount to
the National
administrative action. It can be described as a general
Building Regulation
source of administerial law and all administrative action
and Building
has to comply with the rules of administrative law
Standards Act.
described in PAJA.
The common law
 The common law is reflective of pre-democratic
jurisprudence (judge-made law) adopting principles of
administrative law, now mainly codified in PAJA and
primarily of interpretive value.

The role of subsidiarity in judicial review proceedings.

The first Principle of subsidiarity entails that if legislation gives effect to a right in the
 CONSTITUTION, a litigant must rely on the legislation specifically enacted to protect that
right – you may not rely on the constitutional provision directly when an action is brought
to protect a right. Proviso 1: You may rely on the constitutional provision in the event that
the legislation is attacked for being unconstitutional or it is not sufficient.

 The role of the principle of subsidiarity in the context of Administrative Law is to

dictate that where there is legislation regulating a particular subject, we need to apply
that legislation before invoking the constitution. It also dictates that we apply general
norms of law, and specific norms when applicable – but specific norms must be
interpreted with reference to the general norms and such general norms can solely
only be used where the specific norms have been ruled as not applicable.
 Note*: Constitutional norms are lesser specific while legislative norms are of greater
specificity. (ie. Constitution = general norm, PAJA = specific norm).
o Note the Motau case: Amscor is a state owned entity which gets Arms for the
SA Defence force – gets them from Denel (manufacture) – Court ruled out
PAJA as being applicable – said the Minister in firing Motau and Mokwena
was exercising executive powers to remove the board members (legality) –
and the scope of the power was found in the Amscor Act (Section 8) as well as
the Companies Act (section 70) to determine the validity of the “action” of the
minister.
The Evolution of administrative law’s constraining source.
Administrative law has evolved over a period of time, as described:
 FIRST – Common law rules of administrative law from pre-constitutional history
(developed from English law – Ultra vires doctrine that dictate that Public power
must be lawful otherwise it falls outside its lawful scope, and the Audi Alterum
partem doctrine developed from these common law jurisprudences). – common law is
still useful for interpretive purposes today.
 SECOND – Interim constitution – section 24 introduced admin justice and had
similar provisions as our current section 33. The courts authority for judicial review
for administrative action came from section 24.
 THIRD – Transitional arrangements were made under item 23(2), schedule 6 of the
1996 Constitution (A right to administrative justice in section 33 but only once PAJA
was enacted (2000)). – Which source of law to use to invoke judicial review? (Sec 33/
PAJA/ Legality?).
 FOURTH – Court decides that Legality can be used as a ground to invoke judicial
review – as a basis to regulate public power that is not administrative action (so
public power outside the scope of sec 33 is still regulated by legality).
 FIFTH – 2000 PAJA was enacted and Sec 33 then came into force.
 SIXTH – In 2010, the court in Albutt said legality can be relied upon in cases where
PAJA may have been applicable, starting a trend of relying on legality even if PAJA
might have been applicable.
Note – PAJA has too many technical requirements (such as effluxion of time to institute a
claim) – whereas legality is flexible – so lawyers prefer to work with Legality instead of
PAJA. – but the problem with such is that PAJA is avoided and this undermines the rule of
law, the work of the legislature, etc.
RELATIONSHIP BETWEEN COMMON LAW AND PAJA.
Bato Star case tells us about this relationship – the case was about the allocation of fishing
quotas. Bato Star was not happy with its allocated fishing quota and felt the allocation was
unreasonable – wanted to set the quota aside and get a “reasonable” quota in a review
proceedings. This happened in a time where there was a debate regarding which source of
law to use – the lawyers relied on the Common law – and not PAJA – the court asked
whether this was appropriate.
Court held : “The common law informs the provisions of PAJA”. – you cannot bring a
judicial review application purely based on the common law. – PAJA codifies the common
law, as such Judicial review of administrative action now ordinarily arises from PAJA and
not the common law itself - (The courts’ power to review administrative action no longer
flows directly from the common law but from PAJA and the Constitution itself.)
RELATIONSHIP BETWEEN PAJA AND THE CONSTITUTION
New Clicks case: Minister of Health put in effect fixed prices for medicines – New clicks (a
pharmaceutical company) challenged the ministerial regulations
The legal question before the court, was whether an application could be brought in terms of
Sec 33/PAJA?
Court held that where PAJA is applicable because the conduct of issue is administrative,
litigants must rely on PAJA and not Constitution – but if PAJA is inconsistent with
Constitution – then Constitution shall be used (Subsidiarity).
At para 96: “A litigant cannot avoid the provisions of PAJA by going behind it, and seeking
to rely on section 33(1) of the Constitution or the common law. That would defeat the
purpose of the Constitution in requiring the rights contained in section 33 to be given effect
by means of national legislation.”. – This statement gives effect to the indirect application of
the constitution – the court confirms that the idea of indirect application applies in context of
Administrative Action. Note: PAJA must be interpreted in line with section 33.
Relationship between the sources: PAJA and the constitution and other empowering
provisions.
Zondi case: ordinance permitting impounding and sale of cattle without notice if cattle was
gazing on someone else’s land. The ordinance was challenged in terms of section 33 of the
constitution – on the basis that there was no notice given (infringes administrative
procedures) – The court held that PAJA governs the exercise of administrative action in
general – statute that authorise the Administrative Action such as the ordinance must be read
with PAJA such that they require compliance with PAJAs standards. Court explained that
when reading the Provincial ordinance with PAJA the effect is that it is no longer inconsistent
with section 33 of the Constitution.
  “where there is a constitutional challenge to the provisions of a statute on the ground
that they are inconsistent with the provisions of sec 33 of the Constitution, the proper
approach is first to consider whether the provision in question can be read in a manner
that is consistent with the Constitution, if they are capable, they will ordinarily call for
constitutional muster…. PAJA was enacted pursuant to the provisions of section 33..
PAJA therefore governs the exercise of administrative action in general. All decision
makers who are entrusted with authority to make administrative decisions by the
statute are therefore required to do so in a manner that is consistent with PAJA. The
effect of this is that the Statute that authorises administrative action must now be read
together with PAJA unless on a proper construction, the provisions of the statute in
question are inconsistent with PAJA.” – this gives effect to the principle of
Subsidiarity.
Platinum Asset Management: a statute empowered search and seizure powers to be
exercised and there was no duty to allow procedural fairness – court held that the
empowering provisions must be read in conformity with PAJA and the failure to comply with
PAJA would render it unfair and thus unconstitutional.
SASOL oil para 1-7: Court was concerned with a Statute enacted before PAJA and had less
protection than PAJA – PAJA gives a person aggrieved by Administrative Action 90 days to
do something – the Statute in contention gave a shorter period – the question was which
period applies – COURT held that the longer period should apply because PAJA is universal
legislation.
Sasol oil being refused the construction of a petrol station and the department of
environmental affairs took that decision and Sasol tried to contend that decision internally
and the department said the period to challenge had expired, however, the court said – you
can still use PAJA’s period because PAJA is constitutionally mandated – to the extent that
any early legislation that gives less period – PAJA will override that legislation.
PAJA and Legality: Is the rule of law Administrative Law “under another name”?
Albutt case: the President’s decision to pardon political prisoners in terms of his presidential
powers to do so were challenged on the grounds that the victims of the “crimes” had not been
consulted (this means victims wanted procedural fairness in terms of PAJA). The court held
that it didn’t have to decide whether the President’s decision to pardon political prisoners was
Administrative Action because legality could apply. The courts have subsequently in my
Vote Counts reinforced the principle of subsidiarity and legality . – The principle of legality
does not always apply it applies only when the conduct is not administrative action.
Gijima: Constitutional Court ruling: The State Information Technology Agency (state owned
entity) decided its contract with Gijima was unlawful and wanted to set aside its own decision
to contract with Gijima. Issue was what law should apply when the state wants to set aside its
own decisions? Court said – PAJA does not apply when state wants to set its decision aside –
Constitutional Court overruled the SCA on this issue (where the SCA had said that PAJA
does apply and the Constitutional Court in deciding to overturn that decision noted that this is
because the state is not a rights bearer under sec 33). (Melanie disagrees with this ruling
because the state has duties in terms of sec 33 – why not have rights?) – however, legality
would operate as a safety net of accountability when PAJA or sec 33 does not apply – and in
the Gijima case – legality would then apply. (So legality can be used to review conduct that
is not administrative, as well as where the state wants to set aside its decisions).
Public power is the power exercised by the state in the execution of their duties, and
sometimes a power exercised by private entities when its conduct has an impact on the
public. It involves an unequal relationship between citizens and the state – this means the
holder of the power can coerce/compel people to do things. (ie. Police compels you to pull
over).