Administrative Justice in
South Africa: An
Introduction
Lecture 1
11 February 2025
Blackboard space
• MY LECTURER
• Study programme
• Module content
• Study guide & prescribed
textbook
• Constitution and PAJA
• Glossary of terms
• Unit specific material
• Reading material
• Case law
• PowerPoint slides
• Videos
• Additional reading
Three Wits Postgraduate LLB
March 2021
students programme
WHAT IS
ADMIN LAW NSFAS Guidelines Budget changes
ALL ABOUT?
SCENARIO
Decision to change
programme What now?
funding
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
Section 33
of the
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
Constitution
(3) National legislation must be enacted to give effect to these rights,
and must
(a) provide for the review of
(b) impose a duty on the state to give
administrative action by a court or, (c) promote an efficient
effect to the rights in subsections (1)
where appropriate, an independent administration.
and (2); and
and impartial tribunal;
NB! Working definition:
Administrative law
… is that part of constitutional law that both empowers those
exercising public authority or performing public functions
through the law, and which holds accountable to rules of law all
those who exercise public power or perform public functions.
Important:
• exercise of public powers or performance of public functions
• “Administrative action”
• Empowers and controls
• Separation of powers
• Public administration
• Accountability
GENERAL ADMINISTRATIVE LAW:
• Baxter: administrative law is “the general principles of law which regulate the
organisation of administrative institutions and fairness and efficacy of the
administrative process, govern the validity of and liability for administrative action
and inaction, and govern the administrative and judicial remedies relating to such
action or inaction.”
• Administration’s powers.
• Permissible area of administrative activity.
• Remedies for maladministration.
What is admin law all about?
ADMINISTRATIVE ACTION
Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005
(6) SA 313 (SCA) – para 24:
“Administrative action … is 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, with direct and immediate consequences for individuals or groups of individuals.”
• Examples:
• Public procurement
• All forms of licensing
• Allocation of welfare benefits, social grants
• The decision to approve name change of a town
• Collection of taxes
• Protection of the environment
• Regulation of the economy
• Issuing of mineral licenses; fishing quotas
• Approval of building plans
• Approving diving permits, work permits, residency permits, study permits
• Granting refugee status to political asylum seekers
• Refusing entry to illegal foreigners or prohibited persons
• Issuing passports, licenses, ID documents
• Benefactor state
• Social justice
• Administrative law under apartheid – see President of the Republic of South
Africa and Others v South African Football Union and Others 2000 1 SA 1
(CC): para 133
“In the past, the lives of the majority of South Africans were almost entirely governed by
labyrinthine administrative regulations which, amongst other things, prohibited freedom
of movement, controlled access to housing, education and jobs and which were
implemented by a bureaucracy hostile to fundamental rights or accountability. The new
Constitution envisages the role and obligations of government quite differently.”
• Democratic era
• Still expanding
• New areas, for example, land reform, labour law, BEE and procurement, energy
sector.
Legal framework for
administrative law
• Constitution of the Republic of South
Africa, 1996 section 33 – constitutional right
to administrative justice.
• Promotion of Administrative Justice Act 3 of
2000 (PAJA)
• Other fundamental rights, for example,
access to information
• Rule of law
• Very little recourse
• Parliamentary supremacy
• Classification of functions
Common law • Levels of scrutiny
• Constitution’s impact on admin
law
• Human rights, including right to
administrative justice.
(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.
§33 of the
(3) National legislation must be enacted to give effect to
these rights,
Constitution
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.
Promotion of
Administrative Justice Act
'administrative action' means any decision taken, or any failure to take a
decision, by-
(a) an organ of state, when-
(i) exercising a power 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; or
(b) a natural or juristic person, other than an organ of state, when exercising
a public power or performing a public function in terms of an empowering
provision,
which adversely affects the rights of any person and which has a direct, external
legal effect, but does not include-
Nine exclusions – seven of which is linked to the separation of powers!
6 Judicial review of administrative action
(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;
(ii) acted under a delegation of power which was not authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken-
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself-
(i) contravenes a law or is not authorised by the empowering provision; or
(ii) is not rationally connected to-
(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;
(g) the action concerned consists of a failure to take a decision;
(h) 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; or
(i) the action is otherwise unconstitutional or unlawful.
(3) If any person relies on the ground of review referred to in subsection (2)(g), he or she may in respect of a failure to take a
decision, where-
(a) (i) an administrator has a duty to take a decision;
(ii) there is no law that prescribes a period within which the administrator is required to take that decision; and
(iii) the administrator has failed to take that decision,
institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has
been unreasonable delay in taking the decision; or
(b) (i) an administrator has a duty to take a decision;
(ii) a law prescribes a period within which the administrator is required to take that decision; and
(iii) the administrator has failed to take that decision before the expiration of that period,
institute proceedings in a court or tribunal for judicial review of the failure to take the decision within that period on the ground
that the administrator has a duty to take the decision notwithstanding the expiration of that period.
APPEAL REVIEW
Decision-maker came to wrong conclusion on facts or law Did the decision-maker make his/her decision in an
acceptable manner?
How did the decision-maker come to the conclusion?
Deals with merits of case Deals with the process
Was the decision right or wrong? Was the process or decision-maker fair/impartial/all the
evidence considered?
• Distinction less evident with the inclusion of the test for reasonableness in
reviewing decisions
NB! Appeal and review • Separation of powers
• Courts should not pronounce on the merits of admin decisions
• Be careful not to decide on merits of decision – should not usurp
powers of admin
• Reasonableness and deference
PHARMACEUTICAL MANUFACTURERS ASSOCIATION OF SA AND
ANOTHER: IN RE EX PARTE PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA AND OTHERS 2000 (2) SA 674 (CC) – para 45
“Whilst there is no bright line between public and private law, administrative law, which
forms the core of public law, occupies a special place in our jurisprudence. It is an
incident of the separation of powers under which courts regulate and control the
exercise of public power by the other branches of government. It is built on
constitutional principles which define the authority of each branch of government, their
interrelationship and the boundaries between them.”
State
Legislature Executive Judiciary
Parliament President Constitutional Court
Provincial Deputy
legislatures President Supreme Court of Appeal
Municipal
Cabinet
Councils Ministers High Courts/ Labour Courts/ Tax
court/ Equality Courts
District and regional courts/
Equality Courts
FUNCTIONS OF EXECUTIVE
Implement Formulate
policy and legislation policy and legislation
Formulation of policy in a wide and narrow sense Ed-U-College case?
What constitutes administrative action and what not?
State
Public
Policy Branch
Legislature Administration Judiciary
S 85
S 195
National and President/ Deputy
provincial President/ Cabinet
departments ministers
Implement Formulate
policy and policy and
legislation legislation
Administrative action NOT Administrative action
Legality
1 Republic of South Africa
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a multiparty
system of democratic government, to ensure accountability, responsiveness and openness.
2 Supremacy of Constitution
This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled.
Administrative law – a few statements
Exercise of public power and performance of public functions
Part of public law
Admin law – fundamental to rule of law
Ensures transformative constitutionalism
Constitutional values
Authority Accountability/justification
Part of constitutional law
Administrative law has a dual nature
• Authorisation and regulation (empowerment
The Nature of and accountability)
Administrative Key concepts:
Law
• administrative justice (which is generally wider
than administrative law)
• public authority/functions – emphasis on the
public nature of the authority and the function.
Rule of law
Constitutional supremacy
NB concept for public law!
Constitution has implications for administration and administrative law
Point of departure for a study of administrative authorities = Constitution
Effect of section 2 and Bill of Rights administrative authorities? Obligations!
•Section 2: Supremacy of Constitution
•This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled.
Chapter 2 BILL OF RIGHTS (ss 7-39)
•Section 7: Rights
(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people
in our country and affirms the democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or
elsewhere in the Bill.
Constitutional
supremacy
• Obligations flow from the provisions of
the Constitution.
• State must take positive steps: s
7(2) & s 8 – all law, legislature,
executive, judiciary, organs of state
• Build houses/hospitals/protect
people from crime
• Does the Constitution expressly
recognise the administration?
• Refer back to sections 195 and
238
• Nature of the Constitution and Bill of
Rights: justiciable and enforceable
• Cf. parliamentary sovereignty
