STUDY UNIT 3:

THE MEANING OF ADMINISTRATIVE

ACTION
DEFINE ADMINISTRATIVE ACTION AS:
A decision of an administrative nature by an organ of state or a natural or juristic
person exercising a public or performing a public function in terms of the
Constitution, any legislation or an empowering provision that adversely affects rights
that has a direct, external legal effect that does not fall under any of the listed
exclusions.

ADMINISTRATIVE ACTION

• Constitution does not define administrative action

• Definition found in s 1 of PAJA
• To understand the meaning of administrative action, it is important to read
section 1 of PAJA in general and on what constitutes a decision
• Also important to study case law dealing with various elements of
administrative action

A DECISION

Duty to decide

Students should understand that there has to be a duty to decide (section 1 of PAJA)
and that a decision is made even if there is a failure to make such decision:

• Making, suspending, revoking, or refusing to make an order, award, or

determination;
• Giving, suspending, revoking, or refusing to give a certificate, direction,
approval, consent, or permission;
• Issuing, suspending, revoking, or refusing to issue a licence, authority, or
other instrument;
• imposing a condition or restriction;
• Making a declaration, demand, or requirement;
• Retaining or refusing to deliver up, an article; or doing or refusing to do any
other act or thing of an administrative nature
BHUGWAN V JSE LTD 2010 (3) SA 335 (GSJ)

The making of a decision:

1. Save where an authority legitimately acts coercively or of its own accord, a

final application, request, or claim must have been addressed by a subject
to an authority which exercises statutory or public powers to exercise those
powers in relation to a set of factual circumstances applicable to the subject.

2. All relevant information, either presented by the subject or otherwise

reasonably available must have been gathered (which may require an
investigative process) and placed before the authority which is to make the
decision.

3. There must have been an evaluative process where the authority considers
all of the information before him or her, identifies which components of such
information are relevant and which are irrelevant and in which the authority
assigns, through a process of value judgments, a degree of significance to
each component of the relevant information, regard being had to the relevant
statute or other empowering provision in terms of which the authority acts.

4. A conclusion must have been reached by the authority, pursuant to the

evaluative process, as to how his or her statutory or public power should be
exercised in the circumstances.

5. There must have been an exercise of the statutory or public power based
on the conclusion so reached.

6. Ultimately the facts of each case will have to be evaluated to determine

whether or not the processes referred to above have been complied with, or
to what degree these processes exist, for purposes of deciding whether an
administrative decision had been taken. When applied to a set of facts it will
be a matter of degree to determine whether an issue is ripe for review
adjudication on the basis that the decisional process had been completed.

The general steps involved in the making of a decision – Bhugwan v JSE

• Final application, request, or claim

• An investigative process
• Evaluative process
• Final decision through the exercise of statutory or public power
ACTS THAT DO NOT INVOLVE A DECISION

Students should understand that the following acts do not constitute decisions in
terms of section 1 of PAJA

→ Formal or clerical acts

→ Operation of law

→ Administrative rulemaking

→ Other acts which do not constitute administrative action

FORMAL OR CLERICAL ACTS

Mere receipt of a land claim does not amount to administrative action – Gamevest
(Pty) Ltd v Regional Land Claims Commissioner

Signing of a declaration to convert a site permit to the right of ownership and signing
of a deed of transfer to give effect to it – Kuzwayo v Representative of the
Executor in the Estate of the Late Masilela

Clerical error in a letter is not administrative decision, distinction between the

decision of a municipal council and the mere communication of that decision by letter
Plover’s Nest Investments (Pty) Ltd v De Haan

Clerical error removing member from register of practitioners is administrative action,

whether correction of an entry made as a result of a computer error by removing the
entry to the register in the category public service (general practitioners), which
confers a more restricted right to practice, is administrative action within the meeting
of the Promotion of Administrative Justice Act No 3 of 2000 - Maleka v HPCSA

OPERATION OF LAW

• E.g., termination of employment under ‘deemed discharge’ provisions are not

administrative action
• Deemed discharge not a decision – Minister van Onderways en Kultuur v
Louw
• See also, Phenithi v Minister of Education (same as kultuur) (NO
DECISION)
• Compare with Maswanganyi v NPA and also Grootboom
• Courts generally reluctant to treat labour matters under PAJA
ADMINISTRATIVE RULEMAKING

• New Clicks case – High Court says regulations do not constitute

administrative action
• New Clicks dictum (Chaskalson: regulations constitute administrative action)
• Esau case regulations could not be regarded as a decision.
• But compare with Constitutional Court with dictum by Chaskalson in which he
seemed to suggest that such regulations are administrative action

OTHER ACTS WHICH DO NOT CONSTITUTE ADMINISTRATIVE ACTION

Miscellaneous non-decision

Endorsement of voluntary agreements; the endorsement of an agreement between

minibus taxi associations and the provincial taxi registrar does not amount to
administrative action, – Mzamba Taxi Owners Association v Bizanza Taxi
Association (NOT ADMINISTRATIVE ACTION)

Emakhasaneni Community v Minister of Rural Development and Land Reform

2019 (4) SA 286 (LCC) 5

• notice to landowners setting out the amount of compensation as determined

by the Office of the Valuer-General does not constitute an administrative
decision
• Notice setting out amount of compensation as calculated by the Office of the
Value General not administrative action

INVESTIGATIVE ACTION

- Students must understand that preliminary steps such as investigations do not

constitute decisions.

Bernstein v Bester – an investigation is not administrative action

- Intended to establish the facts, not to make a final decision

Commissioner v Telkom

- Decision to refer matter to the Competition Tribunal and the referral itself were
'investigative' in nature
- Investigations do not adversely affect any rights
[A DECISION] OF AN ADMINISTRATIVE NATURE

Students should understand the following regarding the requirement of a decision to

be of an administrative nature:

New Clicks – 'of an administrative nature' encompasses regulation-making within

the scope of the definition of 'decision'. – read with s 4 of PAJA

The requirement is intended to classify administrative functions 'judicial', 'quasi-

judicial', 'legislative' and 'purely administrative'

• To exclude all and leave 'purely administrative' functions

• involves the application of policy to specific circumstances
• Exercising administrative power to bring policy into effect
• Not about the creation of policy
• Policy making by an elected official not of an administrative nature
• Grey’s Marine Hout Bay v Minister of Public Works ‘of an administrative
nature’ means the conduct of the bureaucracy (whoever the bureaucratic
functionary might be) in carrying out the daily functions of the State, which
necessarily involves the application of policy, usually after its translation into
law

SOKHELA V MEC FOR AGRICULTURE AND ENVIRONMENTAL AFFAIRS

In deciding whether a decision is one of an administrative nature the appropriate

starting point is to determine whether it would constitute administrative action within
the meaning of s 33 of the Constitution. The boundaries between administrative
action and other forms of conduct by organs of state will often be difficult to draw and
this must be done carefully on a case-by-case basis having regard to the provisions
of the Constitution and the need for an efficient, equitable and ethical public
administration.

The inclusion of the requirement that the decision be of an administrative nature

demands that a detailed analysis be undertaken of the nature of the public power or
public function in question to determine its true character. …There is accordingly no
mechanical process by which to determine whether a particular exercise of public
power or performance of a public function will constitute administrative action. That
will have to be determined in each instance by a close analysis of the nature of the
power or function and its source or purpose.
GREY'S MARINE HOUT BAY (PTY) LTD AND OTHERS V MINISTER OF
PUBLIC WORKS AND OTHERS 2005 (6) SA 313 (SCA)

of an administrative nature’ means:

The conduct of the bureaucracy (whoever the bureaucratic functionary might be) in
carrying out the daily functions of the State, which necessarily involves the
application of policy, usually after its translation into law.

BY AN ORGAN OF STATE

Students must understand the following with regard to the requirement of a decision
to be made by an organ of state or person exercising a public power or performing a
public function:

Section 239 of the Constitution

• Any department of state or administration in the national, provincial, or local

spheres of government;
• Or any other functionary or institution –
• Exercising a power or performing a function in terms of the Constitution or a
provincial Constitution; or
• Exercising a public power or performing a public function in terms of any
legislation
• But does not include a court or a judicial officer

SECTION 239 - DEFINITIONS

In the Constitution, unless the context indicates otherwise— “national legislation”

includes—

(a) subordinate legislation made in terms of an Act of Parliament; and

(b) legislation that was in force when the Constitution took effect and that is
administered by the national government;

“Organ of state” means—

(a) any department of state or administration in the national, provincial, or local

sphere of government; or
(b) any other functionary or institution—
(i) exercising a power or performing a function in terms of the Constitution or
a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation, but does not include a court or a judicial officer;
“Provincial legislation” includes—

(a) subordinate legislation made in terms of a provincial Act; and

(b) legislation that was in force when the Constitution took effect and that is
administered by a provincial government

EXERCISING PUBLIC POWER OR PERFORMING A PUBLIC FUNCTION

FUNCTIONAL APPROACH

• About the function not the functionary

o Not important who performs the functions

o But the nature of the function

• Can Parliament perform administrative action? De Lille v Speaker

• State tender board?

• Non-legislative functions of the National Assembly

• Non-prosecutorial decisions of the NPA

• Conduct of private entities that perform public functions

STUDENTS MUST BE ABLE TO ASCERTAIN:

• the remedial action of the Public Protector constitutes administrative action

• the audit reports of the Auditor-General constitute administrative action

DECIDING ON THE NATURE OF THE FUNCTION

• The source of the power

• The nature of the power
• Subject matter at hand
• Whether power relates to exercising a public duty
• Whether the power is closer to a policy matter or the implementation of
legislation
STUDENTS MUST USE THE PRESCRIBED MATERIALS TO ASCERTAIN
THE MEANING OF

• a decision that adversely affects rights

• has a direct, external legal effect

EXCLUSIONS

Students must understand that the following acts are excluded from the meaning of
administrative action:

(a) Executive powers or functions of the National Executive, including those

referred to in sections 79(1); 85(2); 91(2)-(5); 92(3); 93; 98;99 and 100 of the
Constitution
(b) Executive powers or functions of the Provincial Executive, including those
referred to in section 121(1)-(2); 125(2); 126 etc, of the Constitution.
(c) The executive powers or functions of a municipal council
(d) Legislative functions of Parliament, provincial legislature, or a municipal
council
(e) Judicial functions of a judicial officer of a court or special tribunal of the SIU
and Tribunals Acts
(f) Judicial functions of a traditional leader under customary law or any other law
(g) A decision to institute or discontinue a prosecution
(h) Decision regarding the nomination, selection, or appointment of persons by
the Judicial Service Commission
(i) Decision taken, or failure to take a decision in terms of section 4(1) of PAJA

REVISION CLASS
HIERARCHY OF LAWS

• Principle of subsidiarity
• Constitution: s 33; PAJA; regulations
• Mazibuko v City of Johannesburg
• A litigant cannot directly invoke a constitutional right when legislation has
been enacted to give effect to that right.
• Litigant must either challenge the constitutionality of the legislation or rely on
the legislation to make its case
ANSWERING QUESTIONS

Answer in list format:

• A decision of an administrative nature

• by an organ of state or a natural or juristic person
• exercising a public or performing a public function
• in terms of the Constitution, any legislation or an empowering provision that
adversely affects rights
• that has a direct, external legal effect
• that does not fall under any of the listed exclusions

DEFINITION OF ADMINISTRATIVE ACTION

A decision of an administrative nature by an organ of state or a natural or juristic

person exercising a public or performing a public function in terms of the
Constitution, any legislation or an empowering provision that adversely affects rights
that has a direct, external legal effect that does not fall under any of the
listed exclusions

ELEMENTS OF ADMINISTRATIVE ACTION:

FOUND IN SECTION 1 OF PAJA, (UNIT 3)

CHAPTER 9 INSTITUTIONS AND ADMINISTRATIVE ACTION

The function v the function

PUBLIC PROTECTOR

Issues Remedial action

AUDITOR-GENERAL

• Forms part of the public administration because she ordeals organ of state or
binds report that they must act on (remedial action)
• Its function is to audit organs of state
• Does not have discretionary powers but must report on its findings
MEC for Economic Opportunities, WC v Auditor-General

decision of the AGSA amounts to administrative action – Auditor-General forms part

of the public administrations; its function is to administer (by auditing organs of
state); and it does not have broad discretionary powers

• Never about who performs function, rather on how it is performed

• Dismissal would not constitute a decision of PAJA

LABOUR LAW V ADMINISTRATIVE LAW -- DEEMED DISCHARGE

Minister van Onderwys en Kultuur v Louw

• Deemed discharge not a decision

Phenithi v Minister of Education

• Same as Kultuur

Compare with Maswanganyi v NPA and Grootboom

• Courts generally reluctant to treat labour matters under PAJA Regulations and
administrative action

REGULATION AND ADMINISTRATIVE ACTION

NEW CLICKS

• Does not constitute administrative action

• New Clicks ConCourt - Chaskalson dictum
• Applied during COVID-19 in cases such as Esau v Minister of COGTA
• Making regulations by a Minister constitutes administrative action
→ Minister of Health v Alliance of Natural Health Products (South Africa)

INVESTIGATIONS AND ADMINISTRATIVE ACTION

• Bernstein v Bester - an investigation is not administrative action

• Intended to establish the facts, not to make a final decision
• Commissioner v Telkom
• Decision to refer matter to the Competition Tribunal and the referral itself were
'investigative' in nature
• Investigations do not adversely affect any rights
EXCLUDED FROM THE MEANING OF ADMINISTRATIVE ACTION

• Executive powers or functions of the National Executive, including those

referred to in sections 79(1); 85(2); 91(2)-(5); 92(3); 93; 98;99 and 100 of the
Constitution.
• Executive powers or functions of the Provincial Executive, including those
referred to in section 121(1)-(2); 125(2); 126 etc, of the Constitution.
• The executive powers or functions of a municipal council.
• Legislative functions of Parliament, provincial legislature, or a municipal
council.

ADVERSELY AFFECT RIGHTS OF ANY PERSON

CAPACITY TO AFFECT LEGAL RIGHTS

Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works (SCA) para 23

→ A decision will have capacity to affect legal rights when it has: ‘immediate
and direct legal consequences’

Transnet v Goodman Brothers

→ “Rights” include constitutional rights

Bullock v Provincial Government of North West Province [2004] 2 All SA 249 (SCA):

→ the term rights “not restricted to rights enforceable in a court of law”

Joseph v City of Johannesburg 2010 (4) SA 128 (CC)

→ “Rights” include public law rights to receive basic municipal services, such
as electricity

Legal rights include common law or private law rights as well

HAS A DIRECT, EXTERNAL LEGAL EFFECT

Grey’s Marine (SCA): the literal meaning was not intended, it should be established
whether there will be “immediate and direct legal consequences” for someone.

Direct = There must be some kind of finality in the decision taken, to the extent that
it will have some effect

External effect = Idea that the decision must have some kind of effect beyond the
internal issues of the organisation. There should be some impact on the public. The
are conflicting court decision on what this means.
Legal effect = The idea that the decision of the administrator must be legally binding
on the person whose rights are affected.

→ Do INVESTIGATION decisions amount to “direct, external legal effect”?

→ So-called multi-stage decision making – Bhugwan?
→ Determination of culpability will likely amount to administrative action
 STUDY UNIT 4:
STANDARDS OF ADMINISTRATIVE
JUSTICE AND GROUNDS OF REVIEW OF
ADMINISTRATIVE ACTION

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION: THE COURT’S

LIMITED ROLE

- Administrative law ‘is an incident of the separation of powers under which the
courts regulate and control the exercise of public power by the other branches
of government’ (Pharmaceutical Association of SA & Another, paras 44-
45).
- Courts have limited rules
- Not constitutionally mandated to partake in appeals
- Only mandate to engage in reviews of admin action

• Judicial review is expressly mandated in sections 33 and 34 of the

Constitution.
• In the current constitutional democratic dispensation, the courts are the
primary mechanism of regulating administrative action.

JUST ADMINISTRATIVE ACTION SECTION 33

(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.

(1) 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.
ACCESS TO COURTS SECTION 34

Everyone has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.

• Through judicial review in administrative law cases, the courts exercise

judicial oversight of the work of the administration – the courts scrutinize
administrative action against the rules of administrative law

→ Impose a duty on the court to implement just admin action

→ Only mandate to engage in reviews of admin action = stated in sec 33, 34.
→ Courts have a limited role and need to apply with section 33
→ Have judicial oversight of the work of admin action

ADMINISTRATIVE LAW RULES:

- Paja + Case law

→ Section 33 applies when conduct constitutes administrative action.
- Then look if it is satisfied with s.33 of C and s.6(2) of PAJA.

→ The standards of administrative law, set out in section 33 of the Constitution, can
be enforced by courts.
→ Thus, in the current constitutional democratic dispensation, judicial review of
administrative action is tied to the enforcement of section 33 of the Constitution.

GROUNDS FOR REVIEW

→ Given that administrative law is closely tied to judicial enforcement, the rules
of administrative law are often formulated in a negative way, called grounds of
review (Quinot, pp 127 & 133), e.g. Alleged invalid administrative action may
be reviewed on the grounds that it is unlawful, unreasonable and/or
procedurally unfair.
- Gave explanation of how grounds differ from standards (negative way)
- Courts are mandated to interfere when there is a ground of review
activated when conduct is unlawful, then they interfere
- Descriptions of when the court can interfere.

Grounds of review ‘are essentially descriptions of when courts may interfere with
administrative action’ (Quinot, p127).
Since PAJA was enacted to give effect to section 33 of the Constitution, the cause of
action (ground of review) for judicial review of administrative action ordinarily arises
from PAJA on the authority of the Constitution.

- Appropriate source to check validity of conduct

- Establish the grounds of review

COURTS ROLE

The court’s role in administrative law is not to usurp (take over) the functions of the
administration.

- The reviewing court must ensure that the administration keeps within its
mandate.
- Courts ensure that they do what they must.

In judicial review of administrative action, the courts are concerned with the manner
in which decisions are taken, i.e. the question of ‘how’ the decision was taken.

- Manner in which it was taken.

- Question of how decision was taken.

The reviewing court can only ask a limited number of questions; it must essentially
determine whether the administration has exercised its function in a manner
prescribed by the relevant law and in a manner consistent with the standards of
lawfulness, fairness and reasonableness

- Did they comply with the ground rules of section 6(2) of PAJA.

REVIEW

The reviewing court does not assess the appropriateness or correctness (i.e. the
merits or substance) of the administrator’s decision itself.

- Reasonableness enquiry and that administrator action unreasonable then

court must look at the substances

However, when the ground upon which the administrative action is challenged
involves matters of reasonableness or mistake of fact or law, there is no clear line
between judging whether the decision was taken in the correct manner (a review
function) and judging whether the correct decision was taken (an appeal function)
EXPLANATION OF ‘STANDARD’ AND ‘GROUND’ IN THE CONTEXT OF
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

STANDARD (NOUN)

A rule, requirement or principle established by authority [viz, Constitution, PAJA or

common law] for the measure of valid [administrative] conduct.

→ Purpose is to measure the validity of conduct.

→ Principles and requirements of section 33
→ Just administrative action amounts to action that is lawfulness, procedural
fairness, and reasonableness

Measures of valid administrative conduct: lawfulness, procedural fairness, and

reasonableness

GROUND (NOUN)

The legal basis for the court’s finding that the administrative conduct is invalid, i.e.
the court will use unlawfulness, procedural unfairness or unreasonableness as a
ground or basis for declaring the conduct invalid.

MEASURES OF INVALID ADMINISTRATIVE

ACTION: UNLAWFULNESS, PROCEDURAL
UNFAIRNESS, UNREASONABLENESS

EXPLANATION OF ‘STANDARD’ AND ‘GROUND’ IN THE CONTEXT OF

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

STANDARDS OF REVIEW OF GROUNDS OF REVIEW OF

ADMINISTRATION ACTION ADMINISTRATIVE ACTION

LAWFULNESS UNLAWFULNESS

PROCEDURAL FAIRNESS PROCEDURAL UNFAIRNESS

REASONABLENESS UNREASONABLENESS
DETERMINING THE AVENUES/PATHWAYS TO REVIEW THAT SHOULD
APPLY IN RELATION TO PARTICULAR CONDUCT

→ Cases where the administrative law might apply

→ The type of conduct should determine the avenue/pathway to review
→ The conduct is examined against the relevant standards

WHEN CONDUCT AMOUNTS TO:

→ Public power that amounts to administrative action then PAJA applies

→ Public power that does not amount to admin action then legality grounds of
review apply

WHEN CONDUCT AMOUNTS TO

When conduct amounts to private power - Common law grounds of review apply if
the power mimics public power, e.g. private entity exercises coercive power over
individual in non-employment contexts
THE STANDARDS OF REVIEW OF ADMINISTRATIVE ACTION IN TERMS
OF SECTION 33 OF THE CONSTITUTION

→ Section 33 of the Constitution sets out the standards of ‘just’ administrative

action or ‘administrative justice’.
→ The ordinary legal meaning of the term ‘just’ is lawful, fair, impartial and/or
reasonable.
→ ‘Just’ in section 33 of the Constitution means ‘lawful, reasonable and
procedurally fair’.

JUST ADMINISTRATIVE ACTION SECTION 33

(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.

(2) 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.

THE SECTION 33 CONSTITUTIONAL STANDARDS OF ‘JUST’

ADMINISTRATIVE ACTION ARE:

(i) lawful, i.e. conduct that conforms to, or aligns, with the rule of law;
(ii) procedurally fair, i.e. conduct by an administrator that follows a fair process
and is impartial/unbiased;
(iii) reasonable, i.e. an administrator must be able to account for/ justify their
decision as being:
• rational (always),
• effective (most of the time),
• proportional (some of the time).
REASONS FOR ADMINISTRATIVE ACTION IN TERMS OF SECTION 33
OF THE CONSTITUTION

• Administrative action must be justifiable in relation to the reasons given for it.
• Section 33(2) of the Constitution states that ‘[e]veryone whose rights have
been adversely affected by administrative action has the right to be given
written reasons [emphasis added].’
• Thus, section 33(2) requires that reasons for administrative action be given
upon the request of persons adversely affected by the administrative action.
THE GROUNDS OF REVIEW OF ADMINISTRATIVE ACTION IN TERMS
OF SECTION 6(2) OF PAJA

→ Since PAJA was enacted to give effect to section 33 of the Constitution, the
cause of action (ground of review) for judicial review of administrative action
arises from PAJA on the authority of the Constitution.
→ Where a person alleges that conduct that satisfies the definition of
‘administrative action’ in section 1 of PAJA is inconsistent with the standards
of just administrative action (i.e. lawfulness, procedural fairness, and
reasonableness), such conduct (i.e. administrative action) may be judicially
reviewed/scrutinised on the grounds stipulated in section 6(2) of PAJA.

THE 3 MAIN PILLARS OF ADMINISTRATIVE JUSTICE

1. Lawfulness
2. Reasonableness
3. Procedural fairness

• The list of grounds of review in section 6(2) of PAJA do not follow a logical
structure, such as aligning the particular grounds of review with each of the
three main pillars of administrative justice in section 33(1) of the Constitution,
namely lawfulness, reasonableness, and procedural fairness.
• Section 6(2) of PAJA sets out a ‘jumble of grounds’, addressing particular
aspects of lawfulness, reasonableness, and procedural fairness, with some
overlap between them.

GROUNDS OF REVIEW IN TERMS OF PAJA VS GROUNDS OF REVIEW

IN TERMS OF THE PRINCIPLE OF LEGALITY

PAJA LEGALITY

UNLAWFULNESS UNLAWFULNESS

PROCEDURAL UNFAIRNESS SOMETIMES PROCEDURAL

UNFAIRNESS

UNREASONABLENESS IRRATIONALITY
LAWFULLNESS AS PART/STANDARD OF
JUST ADMINISTRATIVE ACTION
→ Lawfulness is the first of the three requirements of administrative justice in
section 33 of the Constitution.
→ The key aim of the lawfulness requirement is to keep administrators within the
bounds of their authority (Quinot, p151)
- AS soon as out of those bounds = act ultra vires = unlawful
- Act within bounds = act intra vires = lawful
→ The requirement of lawfulness is simply the statement in the administrative
law of the principle of rule of law.
→ In terms of the principle of the rule of law, everyone, including the state, is
subject to the law, and all public power is derived from law.

PAJA LEGALITY

UNLAWFULNESS UNLAWFULNESS

PROCEDURAL UNFAIRNESS SOMETIMES PROCEDURAL

UNFAIRNESS

UNREASONABLENESS IRRATIONALITY

Since there is a complete overlap between the lawfulness standard for just
administrative action and the lawfulness standard for the exercise of public power
that does not amount to administrative action (reviewed through the avenue of
legality), many of the cases dealing with the review of non-administrative action are
relevant for the purpose of illustrating and/or explaining the elements of the
lawfulness standard for just administrative action
Empowering provision: means a law, a rule of common law, customary law or an
agreement, instrument or other document in terms of which an administrative action
was purportedly taken

• Administrative actions are taken in terms of some form of authorisation.

• The PAJA section 1 definition of ‘administrative action’ indicates that there
must be a source for an administrator’s decision, i.e. an empowering provision
in terms of which the action is authorised and purportedly taken.

DEFINITION OF ‘ORGAN OF STATE’ IN SECTION 239 OF THE

CONSTITUTION

THE LAWFULNESS ENQUIRY AT ITS MOST BASIC FORM

The enquiry into the lawfulness of administrative action entails two parts:

(I) there must be a valid authorisation in an empowering provision; and

(II) the administrative action taken must be aligned to, or overlap with, the
authorisation in the empowering provision.
→ valid authorisation in empowering provision
→ administrative action
The basic lawfulness enquiry thus entails comparing the administrative action with
elements of the authorisation conferred by the empowering provision to determine
the extent of their alignment.

elements of authorisation in empowering provision - administrative action

→ If the administrative action aligns with the elements of the authorisation

conferred by the empowering provision, then the administrative action is
lawful.

If the administrative action does NOT align with the elements of the authorisation
conferred by the empowering provision, then the administrative action is unlawful.

→ elements of authorisation in empowering provision

→ lawful admin action
→ administrative action (unlawful admin action)

The various elements of the authorisation conferred by the empowering provision are
determined by asking the following questions:

(i) What was authorised?

(ii) Who was authorised?
(iii) How did the authorisation prescribe the action to be taken?

THE ASPECTS OF UNLAWFULNESS AS A GROUND OF REVIEW IN

TERMS OF SECTION 6(2) OF PAJA
THE ‘WHAT’ QUESTION: WHAT IS AN ADMINISTRATOR AUTHORISED
TO DO?

The ‘what’ question, as an element of unlawfulness, is primarily reflected in section

6(2)(f)(i) of PAJA.

Section 6(2)(f)(i) states: ‘A court or tribunal has the power to judicially review a
administrative action if - … the action itself - …contravenes a law [i.e. the action is
unlawful] or is not authorised by the empowering provision [emphasis added]’.
 → In general, administrators must act in terms of the correct empowering
provision.
→ Where an administrator deliberately and expressly purports to act in terms of
an empowering provision that does not authorise them to take the particular
action (e.g. empowering provision 1), they will act unlawfully, even if there is
another empowering provision (e.g. empowering provision 2) that could have
authorised the particular action.
→ Empowering provision 1 (no)
→ Empowering provision 2 (yes)
→ However, where the administrator has acted beyond the express power
conferred by an empowering provision (e.g. empowering provision 1), but
there is another possible empowering provision in terms of which the
particular action would have been authorised (e.g. empowering provision 2)
and the administrator’s reliance on the wrong provision was a bona fide error,
the administrator may be entitled to rely, after the fact, on the correct
empowering provision (e.g. empowering provision 2).

THE ‘WHAT’ QUESTION: WHAT IS AUTHORISED?

Where the authorisation flows from more than one empowering provision (e.g.
National Education Policy Act, which authorises the Minister of Education to
determine education policy and Schools Act, which authorises the Minister of
Education to determine age requirements for admission of learners to a school) and
the administrator deliberately (consciously) and expressly relies on an empowering
provision that does NOT authorise the particular action (e.g. the Minister relies on
the National Education Policy Act to determine age requirements for admission of
learners to a school), the administrator acts unlawfully

THE HARRIS CASE

empowering provision - Minister of Education v Harris 2001 (4) SA 1 (CC) Section

3(4) of the National Education Policy Act 27 of 1996 authorised the Minister of
Education to:

What is authorised - ‘determine national policy’ for the education system, including
‘national policy for … the admission of students to education institutions which shall
include the determination of the age of admission to schools’.

empowering provision - Minister of Education v Harris 2001 (4) SA 1 (CC) The

Minister of Education, acting in terms of section 3(4) of the National Education Policy
Act,

the action taken by the Minister - published a notice stating that a learner must be
admitted to Grade 1 in the year he or she turns seven and may not be admitted at a
younger age.
Does the action taken by the Minister of Education align with what he was authorised
to do in terms of section 3(4) of the National Education Policy Act?

Does the action taken by the Minister of Education align with what he was authorised
to do in terms of section 3(4) of the National Education Policy Act? No. The notice
published by the Minister amounted to a binding legal rule, as opposed to policy. The
Minister did not do what he was authorised to do. Therefore, the action was unlawful

THE ‘WHAT’ QUESTION: WHAT IS AUTHORISED?

 → N.B. The Harris case was decided in terms of the principle of legality.
→ Had the matter been decided in terms of PAJA, the conduct would have been
reviewable in terms of sections 6(2)(a)(i) and/or 6(2)(f)(i) of PAJA

The ‘what’ question deals with the nature and scope/extent of the authorisation.

The answer to the ‘what’ question addresses, inter alia,:

- the specific substance of the authorised action (e.g. to determine national

policy),
- the time and place at which the action may be taken, and
- the reason/purpose for which the action may be taken

THE ‘WHAT’ QUESTION: WHAT IS AN ADMINISTRATOR AUTHORISED

TO DO?

WHEN EXAMINING WHAT AN ADMINISTRATOR IS EMPOWERED TO

DO, IMPORTANT SUB-QUESTIONS INCLUDE:

→ How much discretion does the empowering provision confer upon the
administrator? Does the empowering provision confer a broad or narrow
discretion upon the administrator?
→ Is the empowering provision mandatory (setting out something the official
must do) or permissive (setting out something the official may do)?
→ What power is expressly conferred by the empowering provision and what
power might be impliedly conferred?
→ What is the purpose of the empowering provision?
→ Is the administrator required to act in terms of the empowering provision
within a prescribed time period or, if not, within a reasonable time?
→ Once the administrator has taken the decision, are they empowered to
change their minds and vary their decision?

THE ‘WHAT’ QUESTION: WHAT REASON, PURPOSE OR MOTIVE IS

AUTHORISED?

WHERE THE EMPOWERING PROVISION GRANTS A WIDE DISCRETION

TO THE ADMINISTRATOR, THE PRIMARY ROLE OF THE LAWFULNESS
STANDARD IS TO ENSURE THAT:

(i) the administrator does in fact have a discretion (i.e. the discretion is not
curtailed) and
(ii) exercises a discretion when taking the action
DEFINITION OF DISCRETION

1. Noun the power of making free choices unconstrained by external angenices

2. Noun, freedom to act or judge on one’s own

→ The wide discretion of the administrator does not mean that the administrator
may make any choice – the administrator’s choice must align with the purpose or
reason that is authorised by the empowering provision.
→ Administrators are bound to act in accordance with the purposes envisaged in the
relevant empowering provisions.

PAJA recognises the importance of the purpose for which the action is taken through
three grounds of review, as set out in:

(i) section 6(2)(e)(i);

(ii) section 6(2)(e)(ii); and

(iii) section 6(2)(e)(v).

→ The word ‘ulterior’ in section 6(2)(e)(ii) of PAJA refers to a purpose or motive

that is ‘improper’; ‘hidden and … possibly sinister’ (Penfold & Hoexter, p427).
→ At the most general level, administrator must always exercise their powers in
the public interest and not for their personal advantage.
 → If administrators use their powers for unauthorised purposes, or purposes ‘not
contemplated at the time when the powers were conferred’, the administrative
action will be unlawful, even if the powers are used for praiseworthy purposes
or with good intention

EXAMPLES OF ULTERIOR PURPOSE OR MOTIVE FROM CASE LAW

WHERE THE PRINCIPLE OF LEGALITY WAS USED AS AN AVENUE FOR
REVIEW (PENFOLD & HOEXTER, PP 426-427)

(i) Police services arresting sex workers for the ulterior purpose of harassment, when
they know with a high degree of probability that the sex workers will not be
prosecuted

Examples of Ulterior Purpose or Motive from Case Law where the Principle of
Legality was Used as an Avenue for Review (Penfold & Hoexter, pp 426 -427)

MEC for Economic Development of a province dissolving the Gambling Board of the
province for an unauthorised motive (to punish board members for failing to follow an
unlawful instruction from her to make available office space in the board’s own
building to a private company in conflict with the board’s obligations in terms of
public finance regulation)

THE ‘WHAT’ QUESTION: WHAT ACTION IS THE ADMINISTRATOR

OBLIGED TO TAKE?

In terms of the PAJA section 1 definition of ‘administrative action’, failure to take a

decision, where there is a duty on an administrator to take a decision, may also
amount to administrative action.

THE ‘WHAT’ QUESTION: WHAT IS THE ADMINISTRATOR AUTHORISED

[OBLIGED] TO DO?

→ According to section 6(2)(g) of PAJA, a failure to take a decision is

reviewable.
 → Where an administrator is has a duty to take a decision, and the administrator
fails to take a decision, the administrator has acted unlawfully – there is no
alignment between what is authorised in the empowering provision and the
administrator’s failure to do what is authorised.

In Vumazonke v MEC for Social Development, Eastern Cape and Three Similar
Cases 2005 (6) SA 229 (SE), which involved a failure on the part of the Department
of Social Development to take decisions concerning social grants, Plaskett J held
that the failure to take decisions within a reasonable time (3 months), in
circumstances where the Department had a duty to act, was reviewable as unlawful
administrative action under PAJA.

THE ‘WHO’ QUESTION: WHO IS AUTHORISED

TO ACT?
Who is authorised to act in terms of the empowering provision, and did the correct
administrator act?

- THE ‘WHO’ QUESTION: PAJA s 6(2)(a)(i) vs PAJA s 6(2)(f)(i)

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

6. (1) Any person may institute proceedings in a court or a tribunal for the judicial
review of an administrative action.

(2) A court or tribunal has the power to judicially review an administrative action if —

(a) the administrator who took it —

(i) was not authorised to do so by the empowering provision

… (Focuses on the who question: a specific aspect of the authorisation)

(f) the action itself —

(i) contravenes a law or is not authorised by the empowering provision; or

(Focuses on what question: PAJA’s most general lawfulness requirement)

If the Minister of Health is authorised to take action X, but the Minister takes action
Y, the applicable unlawfulness ground of review will be section 6(2)(f)(i) of PAJA,
since the issue concerns what is authorised (action X) compared to what was
actually done (action Y)

If the Minister of Health is authorised to take action X, but the Director-General of the
Department of Health, takes the action (i.e. action X), the applicable unlawfulness
ground of review will be section 6(2)(a) of PAJA, since the issue concerns who is
authorised to act (the Minister) compared to who actually acted (the Director-
General).

THE ‘WHO’ QUESTION: THE IDENTITY OF THE AUTHORISED

ADMINISTRATOR

Empowering provisions may identify the authorised administrator in different ways.

The empowering provision may name/identify the specific or particular administrator

(individual) that is authorised to act, for example:

→ the Minister of Health,

→ the Director-General of the Department of Home Affairs,
→ the Registrar of Ships.

The empowering provision may grant authority/public power to a particular

position/office holder as opposed to a particular or specific individual, for example:

→ a building control officer,

→ an inspector, etc.
The empowering provision may identify the authorised administrator by way of
qualifications [education, skills, experience, admission/registration with profession,
etc.] or characteristics without specifying their identity or position, for example:

→ a medical practitioner,
→ an attorney, etc

• The empowering provision may authorise entities/bodies to act (e.g.

organisations, councils, commissions, committees, departments, tribunals,
boards).
• The authorised entities may range from the specific (e.g. the National Health
Research Ethics Committee) to the less specific (e.g. an appeal committee) to
the general (e.g. the Department of Health).

Whatever their identity, and whether they are individuals or entities/bodies,

administrators may only validly act if they are:

→ properly appointed
→ properly qualified and
→ properly constituted.

THE ‘WHO’ QUESTION: AUTHORISED

BODIES/ENTITIES
• Where an empowering provision authorises an entity, especially a council or
committee, the entity must be correctly/properly constituted [formed/made up]
when it acts (takes the administrative action).
• A correctly/properly constituted entity = authorised administrator

AN ENTITY WILL NOT BE CORRECTLY/PROPERLY CONSTITUTED IF:

→ one or more of its required constituents/members is not included when the

action is taken and/or
→ there is non-compliance with the requirements relating to how the entity must
be constituted (e.g. the entity must be appointed the Minister of Health).
→ As a general rule, if the entity is not correctly/properly constituted, it will not
amount to the authorised administrator.
→ Any action taken by an entity that is not correctly/properly instituted will be
unlawful on the basis that the administrator who took [the administrative
action] was not authorised to do so by the empowering provision (s 6(2)(a)(i)
of PAJA).
→ All members of the entity are authorised by the empowering provision to
jointly take the administrative action as one body/entity.
→ Whether all members of the entity have to always be present during the
process/deliberations leading to administrative action depends on the
 interpretation of the empowering provisions prescribing how the entity should
function

The noun quorum is plural of qui in Latin, meaning "of whom." Quorum refers to the
minimum number of members of an entity that must be present for the entity to take
actions.

→ Quorum rules ensure that entities comprised of many members are not
hamstrung (restricted/ineffective/powerless) in their functioning by strict
adherence to the approach that all members must always be present for all
actions of the entity.

If the empowering provisions include quorum rules stating how many members must
be present for the entity to take valid decisions, then the entity will be properly
constituted if the quorum is present when the decision is taken.

Where the empowering provisions do not clearly prescribe how the entity should
function, the entity will be able to formulate its own procedure for how it should
function, including quorum rules stating how many members must be present for the
entity to take valid decisions.

CONSTITUTION AND CODE OF CONDUCT OF THE NATIONAL HEALTH

RESEARCH ETHICS COUNCIL

In this example, the NHREC has formulated its own procedure for how it should
function, including quorum rules stating how many members must be present for the
entity to take valid decisions

→ Where the members of the entity have not been appointed in the manner
specified by the empowering provision (e.g. the empowering provision states
that the members of the National Health Research Ethics Committee [entity]
must be appointed by the Minister of Health, but the members of the
Committee are not appointed by the Minister), the entity will not be properly
constituted.
Any subsequent decision taken by such entity will be unlawful because the
authorised administrator did not act.

THE ‘WHO’ QUESTION: DELEGATION BY

AUTHORISED ADMINISTRATOR
Delegation refers to a ‘top-down’ transfer of power by a senior official that is
authorised to decide (original authorised administrator - delegator) to a lower ranked
official (delegatee) to make decisions on behalf of the former (i.e. the delegator).

→ Empowering provisions generally identify the particular administrator that

must take a decision – typically the chief administrator/head in a specific
organ of state, e.g. the relevant Minister or MEC.
→ However, it is not practically feasible for the chief administrator to personally
take all decisions.
→ Delegation addresses the practical difficulty of the original authorised
administrator taking all decisions themself by enabling someone else to
lawfully exercise the powers granted to the administrator by the empowering
provision.
→ Delegation ought to ensure improved productivity, continuity in service
delivery, and increased efficiency

An authorised administrator can only delegate their power to take a decision to

another person if such delegation is authorised by the empowering provisions.

The above example demonstrates that the Director-General of National Treasury is

authorised to delegate various powers that are vested in him by the Public Finance
Management Act (empowering provision) to other specified officials.

→ According to section 6(2)(a)(ii) of PAJA, administrative decisions taken under

delegated authority will only be reviewable on the grounds of unlawfulness if
the delegation was not authorised.

WHEN DECIDING WHETHER A PARTICULAR DECISION TAKEN IN

TERMS OF DELEGATED POWER IS LAWFUL, TWO QUESTIONS MUST
BE ASKED.

→ QUESTION 1: Who is identified in the empowering provision as the

administrator that must take the decision? i.e. who is the original authorised
administrator?
WHEN DECIDING WHETHER A PARTICULAR DECISION TAKEN IN
TERMS OF DELEGATED POWER IS LAWFUL, TWO QUESTIONS MUST
BE ASKED.

→ QUESTION 2: If the administrator who actually took the decision (i.e. the
actual decision-maker) is not the original authorised administrator, was the
original authorised administrator authorised to delegate their powers to the
actual decision-maker?
→ Question 2 involves a full lawfulness analysis in relation to the issue of
delegation of power.
Question 2 must be answered by determining:
(i) what the empowering provision authorises in relation to the delegation of
the original authorised administrator’s power (i.e. is delegation authorised?),
and
(ii) whether there is alignment between the person who actually took the
decision and the person who was authorised by the empowering provision to
take the decision?

DELEGATION CAN BE EXPRESSED

As with the authorisation of all administrative power, delegation can be authorised

either expressly or tacitly.

Delegation is authorised expressly where the empowering legislation contains a

section allowing for delegation, e.g. section 4 of the Identification Act.

SOMETIMES DELEGATION DOES NOT SPECIFY

Where the legislation (empowering provision) does not contain a provision expressly
allowing for delegation, authorisation for delegation can be inferred if certain factors
indicate that the legislation tacitly authorises delegation.
In Minister of Trade and Industry & Others v Nieuwoudt & Another 1985 (2) SA 1 (C),
the court approved of the following five factors that must be considered when
determining whether legislation (empowering provision) tacitly authorises
delegation:

(i) the degree of the devolution of the power;

(ii) the importance of the original holder of the power;
(iii) the complexity and breadth of discretion;
(iv) the impact of the power; and
(v) practical necessities.

INSTANCES (MORE LIKELY TACITLY AUTHORIZES DELEGATION)

Generally, a court is more likely to accept that the empowering provision tacitly
authorises delegation where:

→ the original holder of the power retains some control/degree of power and only
delegates a part of their power (‘the degree of devolution of the power’);
→ it is not feasible for the original holder of the power (original authorised
administrator) to exercise that power individually/personally in every case,
particularly where the original holder of the power is a high-ranking
administrator or member of the executive, such as the Minister or MEC
(‘practical necessities’).

INSTANCES (LESS LIKELY)

A court is less likely to accept that the empowering provision tacitly authorises
delegation where:

→ the original holder of the power is very important, and the legislature seems to
have been very deliberate in choosing the original administrator as the holder
of the power (‘the importance of the original holder of power’);
→ The decision to be taken is very complex and involves the exercise of broad
discretion (‘the complexity and breadth of discretion’);
→ the exercise of the power has a significant impact (‘the impact of the power’);
→ the relevant statute (empowering provision) expressly authorises delegation in
limited terms.
 THE ‘WHO’ QUESTION: WHO TAKES THE
DECISION IN SUBSTANCE?
When they take a decision in substance they think about it and consider relevant
factors and then come to an conclusion

Generally, the authorised administrator must take the relevant decision themself,
both in form and substance.

→ Thus, the authorised administrator must be the one to formally take the
decision.
→ The authorised administrator must also take the decision in substance, i.e.
they must apply their mind and come to the relevant decision.
→ The basis of the ‘who’ question of lawfulness is that the authorised
administrator must take the relevant decision themself, both in form and
substance.
→ Thus, the authorised administrator must be the one to formally take the
decision.
→ The authorised administrator must also take the decision in substance, i.e.
they must apply their mind and come to the relevant decision

NOT OWN DISCRETION

The authorised administrator acts unlawfully when they take a decision under the
influence or dictates of another – the authorised administrator must apply their own
mind and come to the decision.

→ When not apply own mind but influenced by someone else (someone says
what decision to take) then they restrict you.

AN AUTHORISED ADMINISTRATOR MAY ACT UNLAWFULLY WHERE:

→ their discretion is fettered (restricted/ hampered/ unduly influenced) by

another person or body;
→ they simply rubberstamp the decision of another person or body without
applying their own mind (discretion)

Dictates or fettering may arise from the unauthorised and unwarranted influence of
other persons on the administrator, as well as in the form of a document.
(REGARDED AS ACTING IN AN UNAUTHORISED MANNER)

An authorised administrator may act unlawfully where they blindly follow/ adopt a
policy document without considering the merits of a particular issue and whether or
not it falls within the policy, i.e. the administrator’s discretion is fettered by the blind
following of the document.

THE ‘WHO’ QUESTION: WHO TAKES THE

DECISION IN SUBSTANCE? A WORD ON
‘ADVICE’
→ Administrators are encouraged to seek advice and use guidelines that may
result in better and more consistent decision-making.
→ An administrator acts lawfully (unfettered) when they take the relevant
decision themselves after forming their own view on the relevant
considerations.
→ They need GOOD ADVICE and is used TO PROVIDE SOME GUIDANCE!
 THE ‘HOW’ QUESTION: HOW MUST THE
ADMINISTRATIVE ACTION BE TAKEN?
How did the authorisation in the empowering provision prescribe the administrative
action to be taken? (Quinot, pp 162-169)

THE ‘HOW’ QUESTION: IDENTIFYING PRESCRIBED PROCEDURES

AND SUBSTANTIVE PRECONDITIONS IN EMPOWERING PROVISIONS

→ Empowering provisions often prescribe the process or steps that an

administrator must comply with when taking the relevant action (e.g. give
notice).
→ If an empowering provision prescribes procedures and conditions for the
administrative action to be taken, the administrator must comply with such
procedures and conditions

THE ‘HOW’ QUESTION: PRESCRIBED

PROCEDURES AND SUBSTANTIVE
PRECONDITIONS
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION SECTION 6

(2) A court or tribunal has the power to judicially review an administrative action if —

(b) a mandatory and material procedure or condition prescribed by an empowering

provision was not complied with;
 → If the administrator does NOT comply with the prescribed procedures and
substantive conditions as required by the empowering provision for the
administrative action to be taken, the administrator will have exercised their
power unlawfully.
→ The administrators conduct can then be judicially reviewed on the ground that
‘a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with’ (section 6(2)(b) of PAJA).

THE ‘HOW’ QUESTION: IDENTIFYING

PRESCRIBED PROCEDURES AND
SUBSTANTIVE PRECONDITIONS IN
EMPOWERING PROVISIONS
As per the ordinary rules of statutory interpretation, the use of the peremptory
language (such as ‘must’ and ‘shall’) and the use of negative language (such as ‘no
person shall’) in relation to the prescribed procedure or substantive precondition in
the empowering provision is a good (but not definitive) indication that theprocedure
or condition is mandatory or compulsory.

THE ‘HOW’ QUESTION: IDENTIFYING

PRESCRIBED PROCEDURES IN EMPOWERING
PROVISIONS
→ Mandatory procedures in an empowering provision that an administrator must
comply with in taking the administrative action are also referred to as
procedural prescripts or prescribed procedures.

THE ‘HOW’ QUESTION: IDENTIFYING

PRESCRIBED PROCEDURES IN EMPOWERING
PROVISIONS (AN EXAMPLE
THE ‘HOW’ QUESTION: WHEN ARE DEVIATIONS
FROM A PRESCRIBED PROCEDURE LAWFUL?

→ Compliance with procedures in empowering provisions should not be judged

formalistically (mechanically/rigidly/strictly).
→ A deviation from a prescribed procedure will not necessarily result in the
administrative action being unlawful.
→ If the administrator complied sufficiently with the prescribed procedure to
achieve the purpose of the particular provision, then the deviation from the
prescribed procedure will not be material, and the administrative action may
be lawful.
Did the administrator take the administrative action incompliance with how the
authorisation in the empowering provision prescribed the administrative action to be
taken?

→ Was there in fact a deviation from the prescribed procedures (i.e. an

irregularity)?
→ If there was a deviation (or irregularity), was the deviation from the prescribed
procedures material? (i.e. did the deviation result in the administrative action
not achieving the purpose of the particular empowering provision?)
→ Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and Others 2014 (1)
SA 604 (CC) paras 28 and 30
 → If the deviation was material, then the administrative action will be unlawful, as
per section 6(2)(b) of PAJA

THE ‘HOW’ QUESTION: DISTINGUSHING

BETWEEN THE TWO PROCEDURAL
DIMENSIONS OF AN ADMINISTRATIVE ACTION,
VIZ. SECTION 6(2)(B) OF PAJA AND SECTION
6(2)(C) OF PAJA
 → There is no watertight distinction between the two different procedural
dimensions of an administrative action.
→ The exact same facts may support arguments on both these grounds of
review (i.e. unlawfulness and procedural unfairness).

THE ‘HOW’ QUESTION: IDENTIFYING

SUBSTANTIVE PRECONDITIONS IN
EMPOWERING PROVISIONS
Mandatory conditions in an empowering provision that an administrator must comply
with in taking the administrative action are also referred to as substantive
preconditions or conditions precedent that must exist before the exercise of power.

THE ‘HOW’ QUESTION: DIFFERENCE BETWEEN SUBJECTIVE

SUBSTANTIVE PRECONDITIONS AND OBJECTIVE SUBSTANTIVE
PRECONDITIONS IN EMPOWERING PROVISIONS
 → Subjective substantive preconditions in empowering provisions confer wide
discretion on an administrator to decide if the facts or state of affairs existed.
→ Subjective substantive preconditions are generally identified by the language
used in the empowering provision, such as ‘if [the administrator is] satisfied
that’ or ‘if [the administrator] has reason to believe’.

THE ‘HOW’ QUESTION: WHEN DOES NON-

COMPLIANCE WITH A SUBSTANTIVE
PRECONDITION RESULT IN THE
ADMINISTRATIVE ACTION BEING REVIEWABLE
ON THE GROUND OF UNLAWFULNESS?
Under pre-1994 (and prevailing common law), where an empowering provision
contained a subjective precondition, an administrator’s own assertion (i.e. their say-
so) that they indeed held the prerequisite subjective view (opinion, belief or
conclusion) that the fact or state of affairs (condition) existed would generally not be
challenged as a matter of lawfulness. (South African Defence and Aid Fund &
Another v Minister of Justice 1967 (1) SA 31 (A) at para 35)

→ Following the enactment of PAJA, an administrator’s assertion that they

indeed formed the subjective view that the prerequisite fact or state of affairs
existed may be challenged as a matter of lawfulness and be reviewed on the
grounds of section 6(2)(e)(iii) of PAJA.
→ On the strength of section 6(2)(e)(iii) of PAJA, it may be argued that an
administrator acted unlawfully when they formed the view that the condition
was satisfied, because they took into account irrelevant considerations or did
not take into account relevant considerations.
 → In the current constitutional dispensation, an administrator’s assertion that
they indeed formed the subjective view that the prerequisite fact or state of
affairs existed may be challenged as a matter of reasonableness standard in
section 33 of the Constitution.
→ In the current constitutional dispensation, the administrator must show that the
subjective view they relied on for taking the administrative action was based
on reasonable grounds. (Walele v City of Cape Town & Others 2008 (6) SA
129 (CC) para 60)

MISTAKES AS AN ASPECT OF
LAWFULNESS
An administrator’s action may be unlawful if they make a mistake relating to their
authorisation (i.e. the mistake relates to the what, who or how questions of the
authorisation; the mistake does not relate to the content of the administrator’s
decision).

An administrator may make a mistake in the form of:

(i) an error of law, or

(ii) a mistake of fact.

MISTAKES AS AN ASPECT OF
UNLAWFULNESS: ERROR OF LAW
A mistake in the form of an error of law can be made when an administrator takes
the administrative action on the basis of the incorrect interpretation of the law that is
set out in:

→ the empowering provision or

→ any other applicable law, e.g. an applicable court judgment, or an applicable
statute
→ According to section 6(2)(d) of PAJA, administrative action may be judicially
reviewed if ‘the action was materially influenced by an error of law’.
→ An administrator must take the administrative action upon a correct
interpretation of the applicable law.
→ If the administrative action is taken on the basis of an incorrect interpretation
of the law, the action may be unlawful.

MISTAKES AS AN ASPECT OF
UNLAWFULNESS: TEST FOR WHETHER AN
ERROR OF LAW IS MATERIAL
 → An error of law is reviewable if it materially influences or impacts on the
administrative action.
→ If the error of law significantly impacts the decision that the administrator
made (i.e. the decision was taken because of the error of law), then the error
will be regarded as material, and the administrative action will be unlawful.

MISTAKES AS AN ASPECT OF UNLAWFULNESS: MISTAKE OF FACT

→ An administrator must take the administrative action upon the correct/true

facts (or relevant considerations).
→ A mistake of fact can be made when an administrator takes the administrative
action on the basis of the incorrect/ mistaken facts (or irrelevant
considerations).
→ If the administrative action is taken on the basis of incorrect/mistaken facts
(e.g. an incorrect actuarial calculation), the action may be unlawful.

According to section 6(2)(e)(iii) of PAJA, administrative action may be judicially

reviewed if ‘the action was taken because irrelevant considerations
[incorrect/mistaken facts] were taken into account or relevant considerations
[correct/true facts] were not considered’
 → The mistake of fact must be material for the administrative action to be
unlawful.
→ A mistake of fact will be material is it ‘was the direct cause of the decision
[administrative action]’ (Chairman, State Tender Board v Sneller Digital (Pty)
Ltd & Others 2012 (2) SA 16 (SCA)

A material mistake of fact may alternatively be judicially reviewed in terms of section

6(2)(i) of PAJA, which captures the general ground of review for instances of
unlawfulness that do not neatly fit into any of the other grounds of review in section
6(2) of PAJA.

CONCLUSION: LAWFULNESS AS A STANDARD

OF JUST ADMINISTRATIVE ACTION
→ Lawfulness is a basic standard (or requirement) of administrative justice. •
The core of lawfulness is authorisation.
→ Lawfulness is directly linked to the overarching constitutional principle of
legality, which is an aspect of the rule of law.
→ Lawfulness requires all public action to be based on a valid source of power
or authorisation (called an empowering provision).
→ Lawfulness further requires that the administrative action taken be aligned to
the authorisation in the empowering provision.

• PAJA does not contain a consolidated statement of what the lawfulness

standard of administrative justice in section 33 of the Constitution entails.
• PAJA only contains various grounds of review in section 6(2) that are related
to the standard of lawfulness.
RECAP OF THE ASPECTS OF UNLAWFULNESS AS A GROUND OF
REVIEW IN TERMS OF SECTION 6(2) OF PAJA

RECAP OF THE ASPECTS OF UNLAWFULNESS AS A GROUND OF

REVIEW IN TERMS OF SECTION 6(2) OF PAJA [CONTINUING FROM
S6(2)(E)(VI)]
CONCLUSION: LAWFULNESS AS A STANDARD
OF JUST ADMINISTRATIVE ACTION
 PROCEDURAL FAIRNESS
INTRODUCTION: COMMON LAW POSITION
→ Before 1994, administrative actions were considered fair if they complied with
the common law ‘rules of natural justice’.
→ Natural justice refers to the fundamental/basic principles of fair treatment,
especially in relation to procedure

THE TWO RELEVANT COMMON LAW RULES OF NATURAL JUSTICE

WERE:

→ audi alteram partem (hear something, to an unbais decision maker, and

stating your own case)
→ nemo judex in sua causa esse debet.(no man should be a judge in their own
case or interest)

AT COMMON LAW
The rules of natural justice essentially ensured that people who were likely to be
adversely affected by a proposed decision would:

→ know in advance about the decision (be given prior notice of the decision) and
→ be given adequate opportunity to participate in the decision by making
representations or stating their case to an unbiased decision-maker.

Prior to the constitutional era, the common law rules of natural justice were applied in
a restrictive manner.

→ The nemo judex in sua causa esse debet maxim (rule against bias) was
applied more in judicial and quasi-judicial contexts, and not to other types of
administrative conduct that were of a legislative (lawmaking) or ‘purely
administrative’ nature.
 - Only categories is judicial nature and quasi-judicial nature

UNDER COMMON LAW

PAGES 12-13 OF ADMINISTRATIVE JUSTICE IN SOUTH AFRICA:
An Introduction, provide examples of the five categories of administrative action into
which a judge would informally classify the administrative action taken by the public
official (using the doctrine of the ‘classification of functions’).

(1) administrative action of a lawmaking nature (e.g. ‘the making of generally

applicable regulations on health and safety at work by the Minister of Labour’);
(2) administrative action of a judicial nature (e.g. ‘a decision of an administrative
appeals tribunal like the Commission for Conciliation, Mediation and Arbitration
– the CCMA – today’);
(3) administrative action of a quasi-judicial nature (e.g. ‘a granting of a licence to
trade or [the granting] of planning permission to build a house, after
consideration of representations and evidence presented by the interested
parties’);
(4) administrative action of a purely administrative nature (e.g. the granting of a
permit to catch crayfish as a recreation, not for a living, where the official
exercises some but very limited discretion), and
(5) administrative action of a ‘Ministerial’ nature (‘which paradoxically
[inconsistently/in contradiction/illogically] implied that the administrator had no
discretion: on being presented with an application and the relevant camp fee to
camp in a municipal campsite, the administrator had to issue a permit’).

UNDER COMMON LAW, THE AUDI ALTERAM PARTEM MAXIM APPLIED:

→ mainly to cases where someone was deprived of an existing right (and not
‘mere applicants’ who were adversely affected by a decision); but not the right
being deprived itself.
→ only to judicial and quasi-judicial conduct (unless a legislative provision
expressly or by necessary implication required the application of the maxim to
other types of administrative actions).
PROCEDURAL FAIRNESS IN THE CONSTITUTIONAL ERA

→ Post-1994, the requirements of procedural fairness, as demanded by the rules

of natural justice, are protected by:
- the section 33 constitutional right to just administrative action and
- sections 3 & 4 of PAJA
- Section 33 sets the standards as administrative action as just
- Two sections of PAJA (S. 3 and 4) relate to just administrative action

→ However, the [common law] rules of natural justice have now been
supplemented, particularly in relation to administrative action that materially
and adversely affects the rights of the public (s 4 of PAJA)
→ Section 4 deals with the public
→ PAJA is drawn from common law but going further building on other blocks,
hearing the other side, and no one should be the judge of their own case.
→ PAJA applies rules of procedural fairness to all by categories
→ Applies to all conduct that leads to administrative action (either judicial or
rulemaking)
Post-1994, the requirements of fairness under section 33 of the Constitution and
PAJA are more generously applied than under common law.

→ The requirements of fairness now apply to all administrative action.

→ Sometimes, the requirements of procedural fairness apply to public power that
is non-administrative action, in terms of the principle of legality (section 1(c) of
the Constitution).

Sections 3 and 4 of PAJA give more detailed content than section 33 of the
Constitution as to the requirement of procedural fairness whenever administrative
action is taken.

IMPORTNCE OF CONSTITUTION AND PAJA STANDARDS OF

PROCEDURAL FAIRNESS

The requirements/standards of procedural fairness under section 33 of the

Constitution and sections 3 & 4 of PAJA are important, because they uphold the
section 1(d) constitutional principles of accountability, responsiveness and
openness.

The requirements/standards of procedural fairness under section 33 of the

Constitution and sections 3 and 4 of PAJA are also important because they uphold
the section 195 constitutional principles, including, inter alia:

→ impartiality, fairness, equity, absence of bias in

the manner in which the public administration
provides services;
→ responsiveness to people’s needs and public
participation in policy-making;
→ accountability of public administration;
→ transparency of the public administration with timely,
accessible and accurate information.
The requirements/standards of procedural fairness under section 33 of the
Constitution and sections 3 & 4 of PAJA are also important, because they envisage a
participatory democracy.

→ These apply to the requirements of hear the other side and don’t be a judge in
your own case.
→ People in SA participate in decision making.

MINISTER OF HEALTH & ANOTHER NO V NEW CLICKS (PTY) LTD &

OTHERS
→ Minister of Health & Another NO v New Clicks (Pty) Ltd & Others (Treatment
Action Campaign & Another as Amici Curiae) 2006 (2) SA 311 (CC) per
Chaskalson P [111] … It is apparent from section 57(1)(b) [of the Constitution]
that the democratic government that is contemplated is a participatory
democracy, which is accountable, transparent and makes provision for public
involvement
- Does not amount to administrative action
- It is a minority judgement but is very well reasoned.

→ Minister of Health & Another NO v New Clicks (Pty) Ltd & Others (Treatment
Action Campaign & Another as Amici Curiae) 2006 (2) SA 311 (CC) per Sachs J
[625] What all these provisions, both constitutional and statutory, have in
common is a commitment to accountability, responsiveness and openness in
government. They presuppose a democracy that is not only representative but
participatory. Indeed, the Constitution itself was a product of national dialogue,
first outside of then inside Parliament. We have developed a culture of imbizo,
lekgotla, bosberaad and indaba. Hardly a day goes by without the holding of
consultations and public participation involving all stake-holders, role-players and
interested parties, whether in the public or the private sector. The principle of
consultation and involvement has become a distinctive part of our national ethos.

→ Minister of Health & Another NO v New Clicks (Pty) Ltd & Others (Treatment
Action Campaign & Another as Amici Curiae) 2006 (2) SA 311 (CC) per Sachs J
[627] … The right to speak and be listened to is part of the right to be a citizen in
the full sense of the word. In a constitutional democracy dialogue and the right to
have a voice on public affairs is constitutive of dignity. Indeed, in a society like
ours where the majority were for centuries denied the right to influence those who
ruled over them, the right “to be present” when laws are being made has deep
significance.
‘DRAWBACKS’ OF CONSTITUTION AND PAJA STANDARDS OF
PROCEDURAL FAIRNESS (PRACTICALITY OF PROCEDURE)

→ Procedural fairness standards take time and resources to uphold and fulfil.
→ Procedural fairness standards may cause ‘administrative paralysis’ at the
expense of efficiency.
→ In relation to decisions affecting large numbers of people, it may be
burdensome for administrative officials to:
- give prior notice of an intended decision
- listen to and consider representations
- give notice of the decision taken and
- give notice of opportunities to appeal

ADDRESSING THE ‘DRAWBACKS’ OF CONSTITUTION AND PAJA

STANDARDS OF PROCEDURAL FAIRNESS
In light of the possible problem(s)/drawback(s) with the procedural fairness
standards, PAJA states that what procedural fairness demands will depend on the
circumstances of each case.

→ While there are certain minimum requirements of procedural fairness, the

requirements may be applied in a flexible manner. (Joseph & Others v City of
Johannesburg & Others 2010 (4) SA 55 (CC) paras 113-114)
→ Administrators can tailor the content of procedural fairness depending on the
circumstances of the case.

PROCEDURAL FAIRNESS UNDER PAJA

→ Section 3 of PAJA relates to administrative action affecting an individual, i.e.

decisions with a specific impact.
→ Section 4 of PAJA relates to administrative action affecting the public, i.e.
decisions with a general impact.
→ Where empowering legislation imposes specific procedural fairness standards
that fall short of the PAJA standards, the empowering legislation must be read
with PAJA
When administrative action is taken in a manner that does not comply with section 3
or 4 of PAJA, the action will be reviewable on the ground of section 6(2)(c) of PAJA.

When administrative action is taken in a manner that is biased or reasonably

suspected of bias, the action will be reviewable on the ground of section 6(2)(a)(iii) of
PAJA

PROCEDURAL FAIRNESS UNDER PAJA:

SECTION 3
→ Section 3 of PAJA relates to administrative action affecting an individual (e.g.
a person whose application for a passport has been rejected by the
Department of Home Affairs), i.e. the administrative action has a specific
impact on the particular individual.
→ Section 3(3) of PAJA provides that in some situations, more
demanding/stringent/rigorous procedures may be required in respect of
administrative action that affects a person/individual
→ Section 3(1) applies to the individuals
CIRCUMSTANCES UNDER WHICH SECTION 3 IS APPLICABLE TO
ADMINISTRATIVE ACTION
Section 3: Procedurally fair administrative action affecting any person

(1) Administrative action which materially and adversely affects the rights or
legitimate expectations of any person must be procedurally fair.
→ Individual persons.

→ A substantive approach must be adopted in determining whether section 3 of

PAJA is applicable to administrative action, rather than a formalistic approach
that considers the ‘highly technical and abstract conceptual analyses of terms,
such as “legal effect” and “rights”’ (Quinot 2010).
→ Thus, in determining whether section 3 of PAJA is applicable to administrative
action, consideration must be given to the substantive values and factors that
inform the need for administrative justice in a particular case.

The substantive values and factors that inform the need for administrative justice in a
particular case include:

→ the role of procedural fairness in affirming the dignity of all those affected by
public action’;
→ ‘raising the quality of decision-making’;
→ ‘achieving a culture of accountability, openness and transparency, especially
in public administration’;
→ fostering ‘trust in state administration and more generally democracy’ (Quinot
2010)

ANY PERSON
Section 3 of PAJA applies to a natural person/individual that is specifically impacted
by an administrative action, e.g. a person who applies for a disability grant.

→ Section 3 of PAJA also applies to a juristic person that is specifically impacted

by an administrative action, e.g. a specific public school whose subsidy has
been reduced by the Department of Basic Education.
→ It is sometimes difficult to distinguish between an impact on a person and an
impact on group (e.g. in the context of section 4 of PAJA).
‘MATERIALLY AND ADVERSELY AFFECTS’
Although section 3 of PAJA appears to substantially narrow the application of
procedural fairness standards to administrative decision-making that specifically
affects a person by requiring a ‘material’ or ‘significant’ impact, the CC in Joseph has
interpreted the materiality qualification to mean that administrative action will be
subject to the standards of procedural fairness, unless it has a ‘trivial effect’.

‘RIGHTS OR LEGITIMATE EXPECTATIONS’

Rights include:

→ common law rights, such as rights attaching to individuals under the law of
property or contractual rights;
→ constitutional rights, such as the right to housing or the right to dignity
→ ‘legal entitlements that have their basis in the constitutional and statutory
obligations of government’, e.g. to provide basic municipal services, such as
electricity supply, to everyone living in its jurisdiction (Joseph v City of
Johannesburg) – ‘public law right

‘RIGHTS OR LEGITIMATE EXPECTATIONS’

- A strong belief that something will happen or be the case.

A legitimate expectation:

→ is something less than a right;

→ can arise in respect of a mere ‘privilege or benefit which it would be unfair to
deny [a] person without giving him or her a hearing’ (Walele v City of Cape
Town (CC) para 35)
→ entails the expectation of:
- a fair procedure being followed or
- a certain outcome being afforded the expectant party.
‘RIGHTS OR LEGITIMATE EXPECTATIONS’
Under common law, a legitimate expectation must:

→ have a reasonable basis;

→ arise from:
(i) an undertaking given by an administrator or
(ii) an administrator’s long-standing past practice.

‘RIGHTS OR LEGITIMATE EXPECTATIONS’

In the constitutional era, the requirements for a legitimate expectation are:

(1) The expectation must be reasonable

(2) The representation giving rise to the expectation must be:

* ‘clear, unambiguous and devoid of qualification’;

* ‘induced by the decision-maker’;

* ‘one which it was competent and lawful for the decision-maker to make’

(National Director of Public Prosecutions v Phillips (2002) (W))

SECTION 3
Under section 3(1) of PAJA where a legitimate expectation is disappointed (not
satisfied) without a fair procedure being followed (e.g. the provision of reasonable
notice that the administrator intends to take certain steps involving the termination of
a long-standing practice to accord a benefit or privilege), the decision giving rise to
the disappointment of the legitimate expectation may be set aside on the grounds of
procedural unfairness, since the person was not given the opportunity to participate
in the decision leading to the disappointment of the expectation.

→ Despite the narrower terms of the more general PAJA section 1 definition of
‘administrative action’, it is supplemented, and must be read together with,
section 3(1) of PAJA to confer the rights to procedural fairness on persons
whose legitimate expectations have been adversely affected/disappointed.
(Walele (CC) para 37)
CIRCUMSTANCES UNDER WHICH SECTION 3 IS APPLICABLE TO
ADMINISTRATIVE ACTION
Section 3: Procedurally fair administrative action affecting any person

(1) Administrative action which materially and adversely affects the rights or
legitimate expectations of any person must be procedurally fair.

ADOPTION OF SUBSTANTIVE APPROACH TO DETERMINING

APPLICABILITY OF SECTION 3

A substantive approach must be adopted in determining whether section 3 of PAJA

is applicable to administrative action, rather than a formalistic approach that
considers the ‘highly technical and abstract conceptual analyses of terms, such as
“legal effect” and “rights”’ (Quinot 2010).

 Thus, in determining whether section 3 of PAJA is applicable to administrative

action, consideration must be given to the substantive values and factors that
inform the need for administrative justice in a particular case.

As mentioned regarding the importance of the standard of procedural fairness, the

substantive values and factors that inform the need for administrative justice in a
particular case include:

- the role of procedural fairness in affirming the dignity of all those affected by
public action’;
- ‘raising the quality of decision-making’;
- ‘achieving a culture of accountability, openness and transparency, especially
in public administration’;

CIRCUMSTANCES UNDER WHICH SECTION 3 IS APPLICABLE TO

ADMINISTRATIVE ACTION
Section 3 of PAJA relates to administrative action affecting an individual, e.g. a
person whose application for a passport has been rejected by the Department of
Home Affairs

Any person = Section 3 of PAJA applies to a natural person/individual that is

specifically impacted by an administrative action, e.g. a person whose application for
a disability grant has been rejected.
Section 3 of PAJA also applies to a juristic person that is specifically impacted by an
administrative action, e.g. a specific public school whose subsidy has been reduced
by the Department of Basic Education.

It is sometimes difficult to distinguish between an impact on a person and an impact

on group (e.g. in the context of section 4 of PAJA).

JOSEPH AND OTHERS V CITY OF JOHANNESBURG AND OTHERS 2010

(4) SA 55 (CC)

Facts:

• The applicants were tenants of Ennerdale Mansions, a block of 44 apartments

in Johannesburg.
• Ennerdale Mansions was owned by the fourth respondent, Thomas Nel.
• Nel’s company [Ennerdale Mansions (Pty) Ltd] contracted with City Power
(the City of
- Johannesburg’s electricity provider) to provide electricity to Ennerdale
Mansions.
• The applicants (Joseph & Others) contracted with Nel (their landlord) to
receive electricity from him
Facts:

• Nel had accumulated substantial arrears in payment of the electricity bill for
Ennerdale Mansions.
• City Power then terminated the supply of electricity to Ennerdale Mansions.
• The applicants applied to court for an order requiring City Power to reconnect
their electricity supply

The applicants also sought an order declaring that they were entitled to procedural
fairness from City Power in the form of:

(i) notice, and

(ii) opportunity to make representations to City Power before the electricity supply
was terminated.

SECTION 3: PROCEDURALLY FAIR ADMINISTRATIVE ACTION

AFFECTING ANY PERSON
(1) Administrative action which materially and adversely affects the rights or
legitimate expectations of any person must be procedurally fair.

‘Materially and Adversely Affects’

Section 3 of PAJA appears to substantially narrow the application of procedural
fairness standards to administrative decision-making that has a ‘material’ impact on
an individual (unlike section 1, which requires a decision to be adverse and
sufficiently final).

 In Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55

(CC), the CC interpreted the materiality qualification to mean that
administrative action will be subject to the standards of procedural fairness,
unless it has a ‘trivial effect’.
• If the administrative action has a trivial effect on the specific person,
then the action will not be subject to standards of procedural fairness.
• If the administrative action does NOT have a trivial effect on the
specific person, then the action will be subject to standards of
procedural fairness.

[31] … Taking the phrase “materially and adversely affects” simply to mean that the
administrative action had a significant and not trivial effect, I accept that, in the
circumstances of this case, if any rights of the applicants were affected, such effect
was material and adverse.
  In Joseph, the disconnection of the electricity had a significant and not trivial
effect on the applicants in that it left them without an essential/indispensable
service, viz. electricity.

‘RIGHTS’
Rights include:

 common law rights, such as rights attaching to individuals under the law of
property;
 contractual rights;
 constitutional rights, such as the right to housing or the right to dignity;
 public law rights (‘legal entitlements’) ‘that have their basis in the constitutional
and statutory obligations of government’, e.g. to provide basic municipal
services, such as electricity supply, to everyone living in its jurisdiction
(Joseph v City of Johannesburg)
 Joseph extended the scope of the application of procedural fairness under
section 3 of PAJA beyond the traditional category of rights.
 In Joseph, the CC held that the broader constitutional relationship that exists
between a public service provider and the members of the local community
gives rise to rights that require the application of section 3 of PAJA.
In Joseph, the Constitutional Court held that the applicants had a public law right to
receive electricity as a basic municipal service, which the City of Johannesburg was
under a constitutional and statutory duty to provide to all residents within their area,
irrespective of whether or not the residents have a contractual relationship with the
relevant public service provider (City Power).

‘RIGHTS OR LEGITIMATE EXPECTATIONS’

A legitimate expectation:

 is something less than a right;

 can arise in respect of a mere ‘privilege or benefit which it would be unfair to
deny [a] person without giving him or her a hearing’ (Walele v City of Cape
Town (CC) para 35)
 entails the expectation of:
- a fair procedure being followed or
- a certain outcome being afforded the expectant party

Under common law, a legitimate expectation must:

 have a reasonable basis;

 arise from:
(i) an undertaking given by an administrator or
(ii) an administrator’s long-standing past practice

In the constitutional era, the requirements for a legitimate expectation are:

(1) The expectation must be reasonable

(2) The representation giving rise to the expectation must be:
• ‘clear, unambiguous and devoid of qualification’;
• ‘induced by the decision-maker’;
• ‘one which it was competent and lawful for the decision-maker to make’

(National Director of Public Prosecutions v Phillips 2002 (4) SA 60 (W) para 28)
Under section 3(1) of PAJA where a legitimate expectation is disappointed (not
satisfied) without a fair procedure being followed (e.g. the provision of reasonable
notice that the administrator intends to take certain steps involving the termination of
a long-standing practice to accord a benefit or privilege), the decision giving rise to
the disappointment of the legitimate expectation may be set aside on the grounds of
procedural unfairness, since the person was not given the opportunity to participate
in the decision leading to the disappointment of the expectation.

 Despite the narrower terms of the more general PAJA section 1 definition of
‘administrative action’, it is supplemented, and must be read together with,
section 3(1) of PAJA to confer the rights to procedural fairness on persons
whose legitimate expectations have been adversely affected/disappointed.
(Walele (CC) para 37)

FLEXIBILITY OF SECTION 3 REQUIREMENTS

 As previously mentioned, section 3(2)(a) of PAJA states that the requirements
of procedural fairness set out in section 3 must be applied in a flexible
manner.

IMPORTANCE OF FLEXIBILITY OF SECTION 3 REQUIREMENTS

The flexibility of the section 3 PAJA requirements is important, because it allows for
a context-sensitive application of the requirements of procedural fairness on a case-
by-case basis.

EXAMPLES OF CONTEXT-SPECIFIC APPLICATION OF PROCEDURAL

FAIRNESS REQUIREMENTS
 Urgent matters may require very short period for notice of a decision, such as
one day’s notice.
 Complex decisions involving many lengthy documents may require that legal
representation be permitted at a hearing.
 Everyday issues, such as disconnection
of water and electricity, may require
opportunity by the affected person(s) to
send written representations in the form
of a letter or notice to an official.
The flexibility inherent in section 3 of PAJA has been interpreted to mean that
although section 3(2)(b) of PAJA appears to impose ‘mandatory’ or ‘minimum’
requirements for procedural fairness, the courts have a discretion whether or not to
enforce even section 3(2)(b)’s requirements in appropriate cases (Joseph paras 56-
59).

Section 3(3) of PAJA provides that in some situations, more

demanding/stringent/rigorous procedures may be required in respect of
administrative action that affects a person/individual .
Section 3(4) of PAJA reinforces the notion of flexibility/variability by allowing for a
departure from any of the requirements referred to in section 3(2) of PAJA ‘if it is
reasonable and justifiable in the circumstances’.
REQUIREMENTS OF SECTION 3 OF PAJA

Adequate notice

A reasonable oppertunity to make

representations

A clear statement of the administrative

action

Notice of any right of review or Internal Appeal

and Notice of the Right to Request reasons
REQUIREMENTS OF SECTION 3 OF PAJA: ADEQUATE NOTICE
3. Procedurally fair administrative action affecting any person

(b) In order to give effect to the right to procedurally fair administrative action, an
administrator, subject to subsection (4), must give a person referred to in subsection
(1) - (i) adequate notice of the nature and purpose of the proposed administrative
action;

‘ADEQUATE’ NOTICE RELATES TO:

 the form of the notice (e.g. written, verbal, on notice board, in newspaper, the
language of publication) and
 timing of the notice (e.g. short period or long period).

What is ‘adequate’ notice in relation to the form and timing of notice will depend on
the circumstances of the case.

For example, in Joseph para 60, it was agreed that the circumstances of the case
required pre-termination notice, specifically the posting of a written notice in a
prominent place in Ennerdale Mansions would suffice to constitute “adequate notice”
for the purposes of section 3(2)(b)(i) of PAJA.

Such pre-termination notice would not place too onerous an administrative burden
on the City of Johannesburg.

DATE, TIME AND PLACE

In Joseph para 61, the CC held that for the notice to the tenants of Ennerdale
Mansions to be “adequate”, it must contain all relevant information, including:

 the date and time of the proposed disconnection,

 the reason for the proposed disconnection, and
 the place at which the affected parties can challenge the basis of the
proposed disconnection.
SUFFICIENT TIME
In Joseph para 61, the CC further held that the pre-termination notice must afford the
applicants sufficient time to:

 make any necessary enquiries and investigations,

 seek legal advice and
 organise themselves collectively if they so wish.

At a minimum, 14 days’ pre-termination notice was held to be fair.

REQUIREMENTS OF SECTION 3 OF PAJA: REASONABLE

OPPORTUNITY TO MAKE REPRESENTATIONS

A person adversely affected by administrative action must be given a reasonable

opportunity to make representations to the administrator who will make the decision.

 Where it is impractical to make representation to the administrator who will

make the decision (decision-maker), the person adversely affected by the
administrative action must be given a reasonable opportunity to make
representations to other persons who will later fully inform the
administrator/decision-maker of the content of the representations made by
the affected person

Generally, a person adversely affected by administrative action must be given a

reasonable opportunity to make representations before the decision is taken.

THE REPRESENTATIONS MADE BY THE PERSON ADVERSELY

AFFECTED BY ADMINISTRATIVE ACTION IS IMPORTANT BECAUSE:
 It may have a significant influence on the outcome of the decision-making,
e.g. reaching some sort of accommodation in respect of the impact that the
decision may have on the person or managing the impact of the decision on
the person.
 It enables the decision-maker to reach ‘an objectively justifiable conclusion’ by
hearing all perspectives or views.
‘REASONABLE’ OPPORTUNITY TO MAKE REPRESENTATIONS
RELATES TO:
 the form of the representations (e.g. written, verbal, appearing in person,
representation with the assistance of a legal representative) and
 the timing of the representations, (e.g. short period for urgent matters or long
period for complex matters).

What is ‘reasonable’ opportunity to make representations in relation to the form and

timing will depend on the circumstances of the case.

Typically, the opportunity to make written representation is afforded, as it is not

unduly burdensome on administrators

For the representations by the person who may be adversely affected by the
administrative action to be meaningful, the administrator must disclose to the
affected person information that will inform/advise/enlighten the administrator’s
decision-making, such as:

 legislative or contractual provisions that will inform the administrator’s

decision;
 policy considerations that will inform the administrator’s decision; and
 adverse or prejudicial information in the administrator’s possession.

After a decision has been taken, the person affected by it should be advised, in clear
terms, of the decision to enable them to launch a meaningful appeal or review in
respect of the administrative action taken
A clear statement of administrative action
should answer the following questions:

 What was decided?

 Who were the decision-makers and
 On what legal and factual basis was
the decision taken?

REQUIREMENTS OF SECTION 3 OF PAJA: ADEQUATE NOTICE OF ANY

RIGHT OF REVIEW OR INTERNAL APPEAL, WHERE APPLICABLE

Decision-makers must inform affected persons that they are entitled to take the
decision on review in terms of any internal or special statutory review procedures
available in respect of the decision.

ADDITIONALLY, DECISION-MAKERS MUST INFORM AFFECTED

PERSONS OF:
 how long they have to pursue the review,
 where, and with whom the review, should be pursued, and
 any other formal requirements of the review

Decision-makers must inform affected persons that they are entitled to take the
decision on appeal in terms of any internal appeal procedures available in respect
of the decision.
REQUIREMENTS OF SECTION 3 OF PAJA: ADEQUATE NOTICE OF THE
RIGHT TO REQUEST REASONS IN TERMS OF SECTION 5

Decision-makers must inform affected persons that they are entitled to request
reasons (i.e. the person has a right to request reasons and not a right to reasons) for
the decision in terms of section 5 of PAJA.

REQUIREMENTS OF SECTION 3 OF PAJA: A

FAIR, BUT DIFFERENT PROCEDURE

Section 3(5) of PAJA recognises that usually an empowering statute (e.g. sections
21 and 24 of the Refugees Act 130 of 1998) specifically prescribes the procedure
that an administrator must follow to take a decision.
Section 3(5) of PAJA allows an administrator to follow ‘fair but different procedures’
from those set out in section 3(2) of PAJA.

AN ADMINISTRATOR MAY RELY ON SECTION 3(5) OF PAJA IF THE

FOLLOWING ELEMENTS ARE SATISFIED:
 An empowering provision must provide for a procedure to be followed;
 The procedure set out in the empowering provision may differ from that set
out in section 3(2) of PAJA;
 The different procedure set out in the empowering provision must still be fair
in the sense that the affected person must have a meaningful opportunity to
influence the administrative decision;
 The administrator must actually follow the different procedure set out in the
empowering provision.
  An administrator who follows a fair but different procedure under section 3(5)
of PAJA effectively complies with section 3 of PAJA even though the
procedure followed may look very different from that set out in PAJA.
 Section 3(5) of PAJA is evidence of the flexibility of procedural fairness under
PAJA.

REQUIREMENTS OF SECTION 3 OF PAJA: SUMMARY OF TYPES OF

PROCEDURAL ROUTES THAT AN ADMINISTRATOR MAY ADOPT

In sum, an administrator may adopt any of the following three main types of
procedural routes under section 3 of PAJA:

(1) The administrator may follow the procedure set out in section 3(2) of PAJA,
supplemented by the procedural steps in section 3(3) of PAJA where the
circumstances require;
(2) The administrator may depart from the procedure in section 3(2) of PAJA if
the circumstances allow in terms of section 3(4) taking into account the
factors listed in section 3(4)(b); OR
(3) The administrator may follow a ‘fair but different’ procedure provided for in an
empowering provision.
PROCEDURAL FAIRNESS UNDER PAJA:
SECTION 4
Section 4 of PAJA relates to administrative action affecting a group or class of
persons (e.g. refugees living in SA who are asylum seekers), i.e. decisions with a
general (or broader) impact that is equal and impersonal in relation to the group or
class of persons.

 Section 4 of PAJA is a ‘novel and significant provision’ (Hoexter 2012, p406)

in the constitutional dispensation because it introduces new forms of
participation (e.g. holding a public inquiry & following a notice and comment
procedure) when decisions affect the public.
 Section 4 of PAJA extends the common law requirement of fairness, as the
procedures set out in section 4 foster accountability, openness and justifiable
decisions.

CIRCUMSTANCES UNDER WHICH SECTION 4 IS APPLICABLE TO

ADMINISTRATIVE ACTION
  An administrator who follows a fair but different procedure under section 3(5)
of PAJA effectively complies with section 3 of PAJA even though the
procedure followed may look very different from that set out in PAJA.
 Section 3(5) of PAJA is evidence of the flexibility of procedural fairness under
PAJA

The public:
Section 1 of PAJA defines ‘public’.

Administrative action that has a significant public effect will arguably trigger the
procedures set out in section 4 of PAJA if the group or class of the public
affected:

 is not clearly identifiable (e.g. people who at the time of the decision are not
immediately affected, but who may in the future be adversely affected by the
particular decision) or
 cannot give input itself. (Scalabrini 2013 (WCC) paras 82-86)

In Scalabrini 2013 (WCC) para 85, the court held that section 4 of PAJA allows
public interest groups and individuals to make representations on decisions where
the group or class of the public that might actually be affected are not able to give
input or are not identifiable.

 Like section 3 of PAJA, section 4 will apply in a flexible manner, i.e. what is
fair in terms of section 4 of PAJA will depend on the circumstances of the
case.
 Section 4 of PAJA allows an administrator several choices regarding
procedures to follow when their decisions materially and adversely affect the
public in a general sense.
REQUIREMENTS OF SECTION 4

Section 1(i)(ii) of PAJA excludes a decision or failure to take a decision in terms of

section 4(1) of PAJA from the definition of ‘administrative action’

 The PAJA section 1(i)(ii) exclusion of a decision or failure to take a decision in

terms of section 4(1) of PAJA from the definition of ‘administrative action’
means that the administrator’s choice as to which section 4 procedure (e.g.
holding a public inquiry) to use when their decisions materially and adversely
affect the public is NOT administrative action.
 Therefore, the administrator’s choice as to which section 4 procedure to use
when their decisions materially and adversely affect the public will not be
reviewable in terms of section 6 of PAJA.
 Instead, the administrator’s choice as to which section 4 procedure to use
when their decisions materially and adversely affect the public will be
reviewable in terms of the principle of legality.

PAJA SECTION 4 PROCEDURES

The PAJA section 4 procedures must be read with the Regulations on Fair
Administrative Procedures 2002, which gives greater content/detail to the PAJA
section 4 procedures.

A public inquiry

A notice and comment procedure

A fair but different procedure

PAJA SECTION 4 PROCEDURES: A PUBLIC INQUIRY

The administrator must decide whether to conduct the public inquiry or to appont a
panel of suitably qualified persons to conduct the enquiry

The administrator must invite the public to attend and participate in the inquiry
about the decision

After the public inquiry, a written report must be compiled, recording the
reasons for any decision to be taken or recommended

The report must be published in the Government Gazette and conveyed to those
members of the public affected by a decision to be taken or recommended
PAJA SECTION 4 PROCEDURES: A NOTICE AND COMMENT
PROCEDURE

Notice

Comment

Administrative action

Where it is impractical to convene a public inquiry to receive representations about

the decision affecting the public, an administrator will most likely follow a notice and
comment procedure.

PAJA SECTION 4 PROCEDURES: A NOTICE AND COMMENT

PROCEDURE (S 4(3) OF PAJA)

PAJA SECTION 4 PROCEDURES: A FAIR BUT DIFFERENT PROCEDURE

Where the administrator follows a different procedure set out in an empowering
provision (e.g. Mineral and Petroleum Resources Development Act 28 of 2002), to
satisfy the demands of fairness, the consultation required by the empowering
provision must not be ‘a mere formal process’ but a ‘genuine and effective
engagement of minds between the consulting and consulted parties’.
PAJA SECTION 4 PROCEDURES: DEPARTURE FROM PAJA S 4(1), (2)
& (3) PROCEDURES

In terms of section 4(4) of PAJA, administrators may depart from the procedures set
out in sections 4(1), (2) and (3) of PAJA, where it is reasonable and justifiable to do
so.

THE RULE AGAINST BIAS

The rule against bias is recognised in section 6(2)(iii) of PAJA.

In terms of section 6(2)(iii) of PAJA, an administrator’s conduct is reviewable

and may be set aside when:

 they have in fact pre-judged a decision,

 with the result that they have failed to approach the decision with an open
mind.

In terms of section 6(2)(iii) of PAJA, an administrator’s conduct is also

reviewable and may be set aside when:

 they have created the impression, perception, apprehension or suspicion

 in the eyes of a reasonable person,
 on reasonable grounds,
 that they might have been biased.
In the SARFU case, the CC at para 30 preferred a reasonable apprehension of bias
test. In terms of this test, bias entails a pre-judgment, which includes unintentional,
innocent or inadvertent pre-judgment, and not necessarily corruption or
maliciousness

SCENARIOS WHERE AN ADMINISTRATOR MAY BE ACTUALLY BIASED,

OR MAY CREATE A REASONABLE SUSPICION OF BIAS
 The administrator stands to gain financially from a particular outcome in
respect of issues before them, e.g. they are a shareholder of a company
whose tender they are adjudicating
 A family member or friend stands to benefit from a decision taken by the
administrator, such that the administrator has a personal interest in the
outcome of the decision
 Before a particular issue came before the administrator, they had already
formed and expressed a firm view on that issue, such that irrespective of
the submissions made to them, they will not change their view.
 The administrator’s allegiance/loyalty to the view or policies of the institution
to which they are accountable render them incapable of making an impartial
decision.

RETROSPECTIVE VS PROSPECTIVE OPERATION OF THE RULE

AGAINST BIAS
Where an administrator’s decision is reviewed and set aside on the grounds of
section 6(2)(iii) of PAJA, the rule against bias operates in a retrospective manner.

Retrospective

Where an administrator is asked to recuse themselves before a decision is taken on

the grounds that they might be biased, so that another impartial administrator can
take the decision, the rule against bias operates in a prospective manner.

Prospective
WHEN IS PROCEDURAL FAIRNESS DEMANDED OF EXERCISES OF
PUBLIC POWER THAT ARE NON-ADMINISTRATIVE ACTION?
 Sometimes, for exercises of public power that are not administrative action
to be rational and lawful (as required by the principle of legality), they must
follow a fair process.
 Thus, sometimes the principle of legality imposes some of the procedural
fairness standards that are typically applied in respect of administrative
action to exercises of public power that are not administrative action.
 However, the precise content of fairness in these situations remains
unclear.

In Law Society of SA at para 64, the CC distinguished between procedural fairness

as a requirement of just administrative action, and procedural rationality: Procedural
irrationality ‘is about testing whether, or ensuring that there is a rational connection
between the exercise of power in relation to both process and the decision itself and
the purpose sought to be achieved through the exercise of that power’

Situations where the Exercise of Public Power that is Not Administrative

Action will Attract Some of the Procedural Fairness Standards that Typically
Apply to Administrative Action

The principle of legality imposes a duty to consult where:

the purpose of an exercise of public power cannot rationally be achieved without

consultation with those affected by the decision (e.g. representatives of victims of
political crimes and asylum seekers).
The principle of legality imposes a duty to consult where:

a failure to consult will amount to a failure to take into account information at the
disposal of the decision-maker which ought rationally to be taken into account by the
decision-maker (e.g. failure to consult with prosecutors and investigators before
discontinuing criminal prosecution against an accused)

 Where a statute mandates that a particular procedure be followed as a

prerequisite for the lawful exercise of public power that is not administrative
action, the principle of legality will provide that a fair procedure, as set out in
the statute, is followed.

WHEN IS PROCEDURAL FAIRNESS DEMANDED OF EXERCISES OF

PRIVATE POWER?
Under the common law in the pre-constitutional dispensation, the rules of natural
justice were sometimes applied in the context of judicial review of private power.

Under the common law in the pre-constitutional dispensation, whilst a voluntary

association (e.g. a church, a sports club or political party) appears to be a private
body that exercises private power in terms of its own constitution (which is a contract
with its members), any punitive or coercive decision of the voluntary association
would only be valid if it was:

 consistent with its own constitution, and

 unbiased and fair.

Under the current democratic dispensation, exercises of private power by voluntary

associations continue to be subject to review in terms of the common law rules of
natural justice (and NOT section 33 of the SA Constitution or PAJA)
 REASONABLENESS
CONCEPTUAL UNDERSTANDING OF REASONABLENESS

 Historical resistance to an inquiry into reasonableness of administrative action

because of how deep reasonableness can go into merits of a decision
(distinguishing review from appeal)
 Reasonableness is a variable standard of review (operates in degrees of
scrutiny)
 It’s context-specific, considering facts & circumstances of a particular case
 Consideration of separation of powers – judicial deference
 Reasonableness has to do with reasoning or justification for an administrative
decision
 Decision will be unreasonable if it is one which a reasonable decision maker will
not reach

REASONABLENESS AS A GROUND OF REVIEW IN THE COMMON LAW

ERA

 Strict distinction between appeal and review was maintained

 Gross (or symptomatic) reasonableness
 Different tests for reasonableness applied in respect of legislative action,
administrative action, and judicial decision and the so-called pure administrative
action
 Purely administrative action: only action that was “grossly unreasonable” could
be said to be unreasonable (i.e. it was so unreasonable that something else
could be inferred from it, such as bad faith or ulterior motive)
 Legislative action: only action that was manifestly unjust, disclosed bad faith,
involved oppression and interference not contemplated by the legislature –
could be said to be unreasonable

REASONABLENESS AS A GROUND OF REVIEW UNDER THE INTERIM

AND FINAL CONSTITUTIONS

 Section 24(d) of the Interim Constitution said: “every person shall have the
right to – administrative action which is justifiable in relation to the reasons
given for it where any of his or her rights is affected”
 In New Clicks, the Constitutional Court said that at the very least, this means
that decisions of administrators must be rational.
 Section 33 of the 1996 Constitution merely says administrative action must be
reasonable, without imposing any conditions
 For a while there was some uncertainty on whether the common law limitations
on reasonableness survived (i.e. whether gross unreasonableness was still the
test)
REASONABLENESS AS A GROUND OF REVIEW UNDER PAJA [S
6(2)(F)(II)]

SECTION 6(2)(F)(II) OF PAJA SAYS:

Administrative Action is reviewable if no rational connection between the decision of

the administrator and:

 (aa) the purpose for which it was taken;

 (bb) the purpose of the empowering provision;
 (cc) the information before the administrator; or
 (dd) the reasons given for it by the administrator.

SECTION 6(2)(H) OF PAJA SAYS:

Administrative Action is reviewable if:

 "the exercise of the power or the performance of the function authorised by

the empowering provision, in pursuance of which the administrative action
was purportedly taken, is so unreasonable that no reasonable person could
have so exercised the power or performed the function"

REASONABLESS as a ground of review under PAJA [s 6(2)(f)(ii)]

 What is clear from the above is that reasonableness has two elements:
 ‘Rationality’ contemplated in section 6(2)(f)(ii) of PAJA
 ‘Reasonableness’, which is something more than mere rationality,
contemplated in 6(2)(h) of PAJA
 In respect of RATIONALITY, see Carephone v Marcus 1998 (LAC): ‘[there
must be] a rational objective basis justifying the connection . . . between the
material properly available to that administrator and the conclusion that the
administrator eventually arrived at’.

REASONABLESS AS A GROUND OF REVIEW UNDER PAJA [S 6(2)(H)]

In Bato Star 2004 (CC), O’Regan J said the following about section 6(2)(h):

‘Even if it may be thought that the language of section 6(2)(h), if taken literally, might
set a standard such that a decision would rarely if ever be found unreasonable, that
is not the proper constitutional meaning which should be attached to the subsection.
The subsection must be construed consistently with the Constitution and in particular
section 33 which requires administrative action to be “reasonable”. Section 6(2)(h)
should then be understood to require a simple test, namely, that an administrative
decision will be reviewable if . . . it is one that a reasonable decision-maker could
not reach.’
SO, THE TEST IS SIMPLY ‘REASONABLENESS’. BUT WHAT DOES
‘REASONABLENESS’ MEAN?

The courts have said that it is a variable standard. It is now accepted that its
meaning includes rationality but is capable of meaning something more than
rationality. It is a variable standard of review. It can allow for limited scrutiny by the
court, and it can allow a more expanded scrutiny by the court. So, it will always
depend of the facts of a particular case, whether limited or greater scrutiny is
warranted. This extended scrutiny has been said to mean the standard of
PROPORTIONALITY.

REASONABLESS as a ground of review under PAJA [s 6(2)(h)]

IN BATO STAR 2004 (CC), O’REGAN J SAID THE FOLLOWING ABOUT

SECTION 6(2)(H): (CONTINUED.)

“What will constitute a reasonable decision will depend on the circumstances of each
case, much as what will constitute a fair procedure will depend on the circumstances
of each case. Factors relevant to determining whether a decision is reasonable or
not will include:

 the nature of the decision;

 the identity and expertise of the decision-maker;
 the range of factors relevant to the decision;
 the reasons given for the decision;
 the nature of the competing interests involved; and
 the impact of the decision on the lives and well-being of those affected.”

PROPORTIONALITY: RATIONALITY IS NOT ALL THERE IS TO

REASONABLENESS.

 Proportionality is defined by Hoexter as the notion that one ought not to use a
sledgehammer to crack a nut.
 Its purpose is to avoid an imbalance between the adverse and beneficial
effects of an action and to encourage the administrator to consider both the
need for the action and the possible use of less drastic or oppressive means
to accomplish the desired end. Three elements of proportionality are said to
be: (a) balance; (b) necessity; and (c) suitability.

 A proportional administrative decision (thus reasonable) will be one that is

suitable, balanced and necessary – under the circumstances
 PROPORTIONALITY guards against oppressive administrative decisions
 PROPORTIONALITY implicit in two of the Bato Star factors:
 The nature of competing interests AND the impact of the decision on the lives
and well- being of those affected (proportionality is about balancing of varying
interests and enquiring into the suitability of the decision under the
circumstances).
  REMEMBER: The Bato Star factors may militate in favour of or against the
use of broad test such proportionality – depending on the facts and
circumstances of such a case.

INTERPRETATION OF REASONABLENESS AS A GROUND OF REVIEW

UNDER PAJA

 VARIABILITY OF THE REASONABLESS STANDARD

 Reasonableness does not require perfection
 A court is not required to agree with an administrative decision or to find that it
was the correct one — but has to be satisfied that the decisions falls within
the range of “legitimate diversity” (a space within which various reasonable
choices may be made)
 To require less than reasonableness would be to allow capricious decision
making
 To require more than reasonableness would be to allow the courts to
substitute their own views for those of the administrator
 This approach is inspired on the one hand by the need to protect society and
to make administrative law effective in holding administrator accountable in
order to achieve administrative justice, and on the other hand by the need to
respect the principle of Separation of Powers
 REASONABLENESS is a continuum beginning with RATIONALTY and
ending with PROPORTIONALITY. At a minimum reasonableness means
rationality. At a maximum reasonableness means proportionality.
 An irrational decision will always be unreasonable (or proportional). However,
a rational decision may still be unreasonable.
 IAN CURRIE analogy = TRIP TO CAPE TOWN via Bloemfontein vs via
Gaborone & Windhoek

REASONABLENESS AND RESPECT = A SEPARATION OF POWERS

CONSIDERATION

 JUDICIAL DEFERENCE = Judges must appreciate and respect that the

making of administrative decisions is the terrain of ADMINISTRATORS
belonging to the other arms of government.
 Also, that ADMINISTRATORS are the ones who hold the expertise to make
such decisions. Judges must be sensitive of their own constraints in reviewing
administrative decisions.
 To avoid entry into the terrain of an APPEALS
 To minimise or avoid reconsideration of merits (i.e. not about correctness of
decision but whether the decision is reasonable) – although it must be
acknowledged that reasonableness will often touch the merits
 HOWEVER, this does not mean that judges must avoid holding administrators
ACCOUNTABLE to the principles of administrative justice.

Reasonableness and RESPECT = A SEPARATION OF POWERS

consideration
 → SO, when can courts interfere and when can they not?
→ The Bato Star factors offer some light on when the court should apply less
scrutiny or more scrutiny. The Court said courts should take care not to usurp
the functions of administrative agencies and that the following factors are
relevant:
→ The nature of the decision
→ POLICY-LADEN, POLYCENTRIC and involving INTERFERENCE WITH
RIGHTS.
→ Identity and expertise of the decision maker
→ POLYCENTRIC type of decisions will lead to courts being

Reasonableness and RESPECT = A SEPARATION OF POWERS

consideration

 The range of factors relevant to a decision

 The more COMPLEX a decision, the more a court will
 Reasons given for the decision
 The more the reasons given by the administrator do not support the decision,
the more likely that the court will
 The nature of the competing interests involved
 The more the competing interests the more the court will likely (particularly
relevant to proportionality)
 The impact of the decision on the lives and wellbeing of those affected
 The more impactful the decision, the more the court will likely (also relevant to
proportionality)
 Reasonableness should be determined with reference to the specific
circumstances of each case

REASONABLENESS AND VAGUENESS

 Section 6(2)(h)
 The idea is that a reasonable decision-maker would not make a decision is
that is VAGUE
 This requires administrative decisions to be:
 An administrative decision must be sufficiently clear and accessible. There
must be reasonable certainty as to what the decision and boundaries thereof
– so that the affected people know what the decision is.
 Administrative decisions must be consistent and not be contradictory
(particularly subordinate legislation, such as regulations, etc.)
 STUDY UNIT 5:
REASONS
REASONS: INTRODUCTION
Common law did not recognize a general right to give reasons, where the statute
authorising the administrative action in question did not require the furnishing of
reasons. PRE-1994: The absence of such a provision was the norm.

Providing reasons promotes a 'culture of justification' – Mureinik

PRE-CONSTITUTIONAL ERA, BAXTER EMPHASIZED THE IMPORTANCE

OF REASONS AS FOLLOWS:
1. A duty to give reasons entails a duty to rationalise the decision.
2. Furnishing reasons satisfies an important desire on the part of the affected
individual to know why a decision was reached.
3. Rational criticism of a decision may only be made when the reasons for it are
known.
4. Reasons may serve a genuine educative purpose.

The absence of reasons for a decision, prevents an affected person from protecting
his or her administrative justice rights.

NEW CONSTITUTIONAL ERA – SECTION 33(2) OF THE CONSTITUTION:

‘Everyone whose rights have been adversely affected by administrative action has
the right to be given written reasons.’

PURPOSE OF REASONS:
to justify administrative action, advance the constitutional requirements of ‘fairness,
accountability & transrency.’

[Koyabe v Minister for Home Affairs (Lawyers for Human Rights as Amicus Curiae)
2010 (CC)]

 An administrator that justifies its actions, by giving reasons, is ‘likely to

increase public confidence in the administrative process and enhances its
legitimacy.’
  PAJA provides for grounds of review, eg: administrative action may be
judicially reviewed, if the action itself, is not rationally connected to the
reasons given for it by the administrator. Where there are no reasons, this
ground of review will be difficult to invoke, or it may be impossible to use this
ground.

 What do we consider determining if reasons are adequate?

THERE IS AN IMPORTANT BALANCE TO BE STRUCK BETWEEN:

→ Protecting the administrative justice rights of the individual; -and-
→ Promoting administrative efficiency.
→ PAJA = Request-driven process.

TERMINOLOGY:
 Reasons are the explanation for a decision.

 Findings are findings of fact or law which are essential background to a

decision but that are not in themselves a complete explanation for it.

 Information means the same as findings.

 Evidence means the oral or documentary information provided to the

administrator.

REQUESTING REASONS UNDER S5 OF PAJA:

SECTION 5(1) PROVIDES:

Any person whose rights have been materially & adversely affected by
administrative action and who has not been given reasons for the action may, within
90 days after the date on which that person became aware of the action or might
reasonably have been expected to have become aware of the action, request that
the administrator concerned furnish written reasons for the action.

Two questions are being answered here:

(a) Who may request reasons?

(b) What must that person do in order to obtain reasons?
WHO MAY REQUEST REASONS?
 Section 33(2) of the Constitution applies the right to everyone ‘whose rights
have been adversely affected by the administrative action."
 Section 5(1) of PAJA: ‘any person whose rights have been materially and
adversely affected by administrative action’
 Section 5 applies to a person whose pre-existing rights have been adversely
affected by an administrative action. Eg. A student in the university who holds
an admission letter to study, will be entitled to request reasons in terms of
section 5, if the Registrar decided to terminate his admission, because the
student’s existing right to study would be adversely affected by that decision

Transnet Ltd v Good Brothers: the right that was adversely affected was the right
to obtain information which the tenderer reasonably required in order to enable him
to determine whether his right to lawful administrative action had in fact been vilated.
Without reasons, the respondent is deprived of the opportunity, to which is entitled to
consider further action.

Joseph v City of Johannesburg: material and adversely affected simply means the
administrative action has a significant and not a trivial effect.

 Such person must not have been given reasons for the action.
 Section 33(2) of the Constitution speak of the right to written reasons. Oral
reasons will, therefore, not suffice.
 If the reasons are published, such reasons must be adequate and accessible.

WHY MUST THE PERSON TO IN ORDER TO OBTAIN REASONS?

Section 5(1): a person who qualifies to request reasons may, within 90 days after the
date on which that person became aware of the action or might reasonably have
been expected to have become aware of the action, request that the administrator
furnish written reasons for the action.

The 90-day period starts from either the date on which the requester became aware
of the decision or might have reasonably have been expected to become aware of
the action.
WHAT MUST THAT PERSON DO IN ORDER TO OBTAIN REASONS?
 The request must be in writing, addressed to the administrator concerned
& sent to the administrator by post, fax or e-mail or hand delivered.
 A request must indicate the administrative action which affected the rights of
the person making the request, and which rights of the person were
materially and adversely affected by the administrative action.
 Personal & contact details of the requester must also be stated in the
request.
 The 90-day period may be reduced or extended for a fixed period, by
agreement between the parties, or failing which, by a court or tribunal on
application by any of the parties concerned.
 Regulations on Fair Administrative Procedures: Regulation 27

PROVIDING REASONS UNDER S5 OF PAJA:

 Section 5(2) of PAJA: the administrator to whom the request is made must,
within 90 days after receiving the request, give that person adequate reasons
in writing for the administrative action.
 Section 9 of PAJA also applies to this 90-day period.
 It may be reduced or extended, by agreement.
 The Regulations of Fair Administrative Procedures require the administrator to
whom a request is made, to acknowledge receipt of the request, and either to
accede to the request and furnish the reasons in writing or decline the
request.
 The essential element of this duty is that the reasons must be adequate (as
per the Constitution).
 Regulations on Fair Administrative Procedures: Regulation 28

FAILURE TO GIVE REASONS:

Section 5(3) of PAJA: if an administrator fails to furnish adequate reasons for an
administrative action, it must, in the absence of proof to the contrary, be
presumed in any proceedings for judicial review that the administrative action was
taken without good reason.

Wessels v Minister for Justice and Constitutional Development: In the

circumstances, the responsible minister’s failure to furnish reasons… cannot be
seen other than proof, that the administrative action was taken without good
reason. The court set aside the decision.
DEPARTURE FROM REQUIREMENTS OF S5:
Various options available for administrators to, depart from the requirements of S5:

1. Section 2 of PAJA: allows the Minister to exempt an administrator from the

requirements of S5, OR to vary such requirements in ‘order to promote an
efficient administration and if it is reasonable and justifiable in the circumstances.'
(not yet utilised)
2. Section 5(4) of PAJA: provides that an administrator may depart from the
requirement to furnish adequate reasons, IF it is reasonable and justifiable in the
circumstances, and must forthwith inform the person making the request of such
a departure.

THE FOLLOWING FACTORS MUST BE TAKEN INTO ACCOUNT:

(i) The objects of the empowering provision;
(ii) The nature, purpose and likely effect of the admin action concerned;
(iii) The nature and the extent of the departure;
(iv) The relation between the departure and its purpose;
(v) The importance of the purpose of the departure; and
(vi) The need to promote an efficient administration & good governance.

 The Regulations on Fair Administrative Procedures: if an administrator

declines a request for reasons in terms of Section 5(4)(a) of the Act, the
administrator must give reasons, in writing to the person who made the
request, why the request was declined.
 There may be reasons other than those contemplated in Section 5(4), for an
administrator declining to give reasons, for e.g., the requester is not a person
whose rights have been adversely affected, OR s/he has already been given
reasons.

3. Section 5(5) of PAJA: An administrator, when empowered by any empowering

provision, to follow a procedure which is fair but different from the provisions of
Section 5(2), may follow that different procedure.

 Regulations on fair administrative procedures: Regulation 28

ADEQUACY OF REASONS:
 Reasons that are inadequate are not reasons at all.
 This means that a requester who has been furnished with inadequate
reasons, qualifies as a person entitled to request reasons ito Section 5(1),
because s/he has not been given reasons.
 Adequacy suggests a fitness for purpose.
 What is the purpose of reasons in the context of PAJA & Section 33 of
the Constitution?
 To ensure, that the person affected by an administrative decision knows why
and how the decision was made, so that s/he can evaluate whether to let the
matter rest, make another application OR challenge the decision if it
contains an evident flaw.
 The adequacy of the reasons must place the affected person in such a
position.

PREREQUISITES FOR REASONS

(1) The reasons must contain the statement of decision.
(2) The administrator’s findings on the facts, must be provided.
(3) The reasons must not consist solely of the administrator’s conclusion, but the
administrator’s reasoning process must be explained.
(4) The reasons must not be merely a reiteration of the empowering provision.
(5) The reasons must be worded in clear and unambiguous language.
(6) Reasons must be intelligible and informative from the outset, not only with the
benefit of hindsight.
(7) If reasons refer to an extraneous source (e.g., applicable statutory provision),
that extraneous source must be identifiable to the reasonable reader.
(8) The reasons must be of appropriate length and level of detail.

PROCEDURE AND REMEDIES

A requestor faced with a refusal to give adequate reasons or any reasons at all, may
make an application to court, for an order directing the administrator to give reasons.

Section 8(1) of PAJA: states that a court or tribunal, in proceedings for judicial
review, ito Section 6(1), may grant any order that is just and equitable, including
orders–

(a): directing the administrator–

(i) to give reasons; OR

(ii) to act in the manner the court or tribunal requires.
Read – 2009 Regulations, setting out rules, regarding the procedure for AA.

 An appropriate remedy to cure an inadequate statement of reasons is an

order, compelling the delivery of reasons, that are up to the required standard.
 The adequacy of the reasons must be seen in the context of whether they
explain, how the administrator reached the decision, if in a flawed way or not,
allowing the requestor to weigh up his/her options.

INCONSISTENT SETS OF REASONS

 An administrator may provide further or additional reasons on affidavit, if an
application for the review of the decision is brought.
 What if these reasons are different from those that were initially given?
 De Ville suggests that– the reasons furnished upon request and subsequent
reasons furnished in the review proceedings or on affidavit must be
consistent. The latter reasons may be more detailed, but there should be no
factual inconsistencies, including reasons mentioned for the first time at a
later stage.
 Judicial Service Commission v Cape Bar Council 2013 (1) SA 170.

CONCLUSION
Minister of Environmental Affairs & Tourism v Phambili Fisheries– Schutz JA
stated that adequacy–‘requires that the decision-maker, should set out his
understanding of the relevant law, any findings on fact, on which his conclusions
depend (especially if those facts have been indispute), and the reasoning processes,
which led him to those conclusions. He should do so in clear and unambiguous
language, not in vague generalities or the formal language of legislation. The
appropriate length of the statement covering such matters will depend upon
considerations such as the nature and importance of the decision, its complexity and
the time available to formulate the statement. Often, those factors may suggest a
brief statement of 1 or 2 pages only.’

 The reasons provided must be true.

 Requirement of reasons is a constitutional one and must be invoked.
 Absence of reasons does not invalidate the administrative action, but it
will be presumed that the decision was taken without good reason.
 UNIT 6:
REMEDIES
INTRODUCTION
Primary remedies at common law: setting aside and correcting.

THESE REMEDIES ARE INCLUDED IN SECTION 8 OF THE PAJA,

ALONG WITH OTHERS SUCH AS:
 Orders to give reasons,
 Orders prohibiting the administrator from acting in a particular manner.
 Orders declaring the rights of the parties.
 Setting aside the irregular administrative action.
 Remittal to the administrative decision-maker for a new decision to be
taken.
 Substitution of the correct decision by the court.
 The award of compensation to affected parties.
 A party whose right to just administrative action (S33 of Constitution) has
been breached is entitled to ‘appropriate relief’.

REMEDIES IN JUDICIAL REVIEW

OUDEKRAAL ESTATE (PTY) LTD V CITY OF CAPE TOWN (SCA) [2009]:

"A court that is asked to set aside an invalid administrative act in proceedings for
judicial review has a discretion whether to grant or to withhold the remedy “

"It has been argued that unlawful administrative actions are void in law. But they
clearly exist in fact, and they often appear to be valid; and those unaware of their
invalidity may take decisions and act on the assumption that these acts are valid.
When this happens the validity of these later acts depends upon the legal powers of
the 2nd actor. The crucial issue to be determined is if the 2nd actor has legal powers to
act validly notwithstanding the invalidity of the 1st act."
MEC FOR HEALTH, EASTERN CAPE V KIRLAND INVESTMENTS (CC):
Once an administrative act is declared to be invalid by the court, it not only ceases to
have legal effect but is treated as if it never existed.

“This means that any subsequent legal acts taken in reliance on the administrative
action, and which depend for their own validity, on the validity of the administrative
action, will also be rendered void.”

 Para 103 – “The courts alone, and not public officials, are the arbiters of
legality. The clarity and certainty of governmental conduct, on which we all
rely in organising our lives, would be imperilled if irregular or invalid
administrative acts could be ignored because officials consider them invalid.”

SETTING ASIDE:
 In administrative law, setting aside is a consequence of declaring the decision
to be invalid, it is a way of saying that the decision no longer stands, or that it
is void.

REMITTING THE MATTER TO THE ADMINISTRATOR:

 The remedy of setting aside is coupled with ‘remitting the matter for
consideration by the administrator, with or without directions.’ Such directions
allow the court to tailor its order to meet the exigencies of the case, while
respecting the constitutional and institutional competence of the administrator.
The court refers the matter to the original decision-maker rather than an
attempt to ‘correct’ the decision.

CORRECTING OR SUBSTITUTING:
 The PAJA permits a court to substitute or vary the administrative action, or to
correct a defect resulting from the administrative action.

DECLARATION OF RIGHTS:
 A declaration of rights (declaratory order) enables the court to declare the
rights of the parties or to state the legal position. It is a flexible remedy which
can assist in clarifying legal and constitutional obligations. It enables parties to
obtain a final determination of their right before a dispute has arisen and
before any harm is done.
INTERDICTS AND RELATED ORDERS:
 Section 8 provides for the granting of a temporary interdict and for orders
directing the administrator to act in the manner the court or tribunal requires.
A court may also make an order directing a person not to do something
(prohibitory interdict).

REMEDIES FOR UNREASONABLE ADMINISTRATIVE DELAY:

 It is possible to institute proceedings for review on the ground of failure to
make a decision or to apply for an order requiring the administrator to make a
decision.

PAYMENT OF COMPENSATION:
 The PAJA recognizes that an award of damages may be justified in
proceedings for judicial review. Sec 8(1)(c)(ii)(bb), which is linked to the
remedy of setting aside, states that ‘in exceptional cases’, the court may direct
the ‘administrator or any other party to the proceedings to pay compensation’.
This is a public law remedy.

COSTS ORDERS:
 At common law, costs are generally awarded against the unsuccessful party,
who may turn out to be an administrator. The courts has a discretion in the
matter of costs. They have been ready to award costs against officials who
act mala fide. Costs can also be awarded de bonis propris, to be paid out of
the official’s own pocket.

NON-PAJA REMEDIES:
 Contempt of court: Non-compliance with court orders has become a reality in
the last decade. It has fallen to the courts themselves to explore various
options for dealing with non-compliance by the administrators. Some methods
include serving a copy of the judgment to the Premier and his senior legal
advisor, the HR Commission and the Public Service Commission, or even
committal for contempt of court.
CONCLUSION
 When a court finds that an administrative action falls foul of a rule of
administrative law, the result is that the administrative action can be viewed
as irregular, the court has a wide discretion in awarding appropriate relief.
 PAJA’s provisions on remedies in section 8, mandate courts to grant any
order that is just and equitable.
 The main remedies that the courts grant, are declaring the irregular
administrative action invalid and setting it aside or granting an exceptional
remedy such as substituting the administrative action or granting monetary
relief.