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    Table 15.1 The Differences Between The Principle of Legality and The

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    The document discusses the differences and relationships between the principle of legality and the right to just administrative action in South African law. It also examines the definition of administrative action in the Promotion of Administrative Justice Act and some challenges that definition has presented. The exercise of public power must be lawful and rational under both the principle of legality and the right to just administrative action.

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    Table 15.1 The Differences Between The Principle of Legality and The

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    STiX ZA
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    The document discusses the differences and relationships between the principle of legality and the right to just administrative action in South African law. It also examines the definition of administrative action in the Promotion of Administrative Justice Act and some challenges that definition has presented. The exercise of public power must be lawful and rational under both the principle of legality and the right to just administrative action.

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    The document discusses the differences and relationships between the principle of legality and the right to just administrative action in South African law. It also examines the definition of administrative action in the Promotion of Administrative Justice Act and some challenges that definition has presented. The exercise of public power must be lawful and rational under both the principle of legality and the right to just administrative action.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    13 views2 pages

    Table 15.1 The Differences Between The Principle of Legality and The

    Uploaded by

    STiX ZA
    The document discusses the differences and relationships between the principle of legality and the right to just administrative action in South African law. It also examines the definition of administrative action in the Promotion of Administrative Justice Act and some challenges that definition has presented. The exercise of public power must be lawful and rational under both the principle of legality and the right to just administrative action.

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    No doubt the concept of legality is an evolving one and its full impact will

    be incrementally felt. At present, the standard of review under legality is


    that of rationality whereas the more exacting standard of reasonableness
    can
    be used in terms of the PAJA when reviewing administrative action.
    The current position, therefore, is that administrative action is reviewable
    under the PAJA while the exercise of public power that cannot be
    classified
    as administrative action can be reviewed under the principle of legality.
    Table 15.1 below illustrates the differences between the principle of
    legality
    and the right to just administrative action. We thus have parallel tracks to
    review the exercise of public power. It may be argued that it would be
    more
    effective if the definition of administrative action in the PAJA was either
    omitted or broadened to cover some executive action. Litigants could then
    rely on the PAJA for the review of decisions by members of the executive
    even when these decisions constitute executive action and not
    administrative action.
    However, this argument may be problematic. Some exercises of public
    powers by the executive are inherently more political than other decisions.
    They may also require that the members of the executive have a wider
    discretion when they exercise these powers. When the President wishes to
    fire the head of the intelligence service, for example, or when he or she
    wishes to appoint a commission of enquiry into a recent catastrophic event
    such as the shooting of a large number of citizens by the police, it would
    be
    impractical and would hinder effective government if the President was
    required to follow all the requirements of fair process associated with
    administrative action. It may take weeks or even months to comply with
    all
    the fair procedures required by the PAJA while the executive decision may
    require much swifter action to ensure good governance.
    Table 15.1 The differences between the principle of legality and the
    right to just administrative action
    The exercise of
    public power
    must be:
    The principle of
    legality (section 1)
    The right to just
    administrative
    action (section 33)
    The Promotion of
    Administrative
    Justice Act
    Lawful Yes Yes
    Yes
    (section 6(2)(a),
    (b), (d), (e) and (i))
    Rational Yes Yes Yes
    15.2.5 The main provisions of the PAJA
    15.2.5.1 What constitutes administrative action
    As we have seen, a litigant would normally have to rely on the provisions
    of
    the PAJA when he or she wishes to challenge the validity of administrative
    actions. The PAJA is the national legislation enacted to give effect to
    section 33 of the Constitution. The first step in determining whether the
    PAJA will apply is to determine whether the exercise of power qualifies as
    administrative action as defined in the PAJA.
    Section 1 of the PAJA defines administrative action in an overly
    complicated manner and the layers of qualification have presented some
    difficulties in interpreting this section and reconciling it with other
    sections
    in the Act. Section 1 distinguishes between administrative decisions made
    by an organ of state and administrative decisions made by a natural or
    juristic person.
    In so far as organs of state are concerned, section 1 of the PAJA provides
    that:

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