CHAPTER 4
LEARNING UNIT 4
ADMINISTRATIVE ACTION
ADMINISTRATIVE ACTION
Right to ‘just administrative action” – first conferred in 1994
New concept that had no definition
Not defined in s33 (Administrative justice act”)
Not defined in the Constitution
ADMINISTRATIVE ACTION
The definition of this concept fell to the courts esp. Constitutional Court
CC had to give meaning & separate the concept from legislative, executive and
judiciary action
The enactment of PAJA – Statutory definition of “administrative action” was
observed.
PAJA definition: narrower and more complicated than the Concourt’s idea of the
concept
ADMINISTRATIVE ACTION
Administrative action in the pre-democratic era
The term administrative action – achieved prominence as a feature of our two
democratic constitutions and the PAJA
Rights to administrative justice are confined to the realm of “administrative action”
Therefore, judicial review cannot take place in terms of PAJA unless the offending
action falls within that realm
This does not rule out other possible forms of judicial review
ADMINISTRATIVE ACTION
The first question to be answered in every case involving the exercise of public
power is:
Whether the action counts as administrative action
Constitutional review under section 33 is similarly constrained
NB: Section 33 will not come into play unless there is some question of
administrative action
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At common law the term ‘administrative action’ has no particular significance
The pre-democratic cases do not use the term deliberately if they use it at all
Prior 1994 – the inquiry tended to be whether an agency falling broadly within the
executive branch qualified as a public body:
And if not, whether its actions might nevertheless be reviewable for some reason
Such as their disciplinary nature
The inquiry was easily satisfied
ADMINISTRATIVE ACTION
Beyond entities that were incontestably public, such as Ministers and departments of
state, provincial and local authorities, an agency would usually be regarded as public
authority if it were created or controlled by statute…..Any of these characteristics
would suffice to make the actions of the agency reviewable on administrative law
grounds
ADMINISTRATIVE ACTION
By the end of the pre-democratic era, the realm of administrative action at common
law was a very broad one
This was consonant with the role of administrative law as an essential bulwark
against the abuse of public power
Administrative law was pressed into service as a vehicle to protect human rights
ADMINISTRATIVE ACTION
NB: with such a very broad conception of what powers were reviewable in principle,
the courts clearly needed some way of limiting the scope of judicial review
The advent of the democratic era brought a sharp decrease in the amount of work to
be done by administrative law
Read: President of the RSA vs South African Rugby Football Union
ADMINISTRATIVE ACTION
Case law:
In Grey’s Marine case, the Supreme Court of Appeal summed up administrative
action as ‘the conduct of the bureaucracy…in carrying out the daily functions of the
State, which necessarily involves the application of policy, usually after it’s translation
into law, with direct and immediate consequences for individuals or groups of
individuals’
It is clear that: the constitutional and statutory meaning of the term are not identical:
Administrative action, is discussed first in terms of its constitutional meaning
And then, in relation to its definition in the PAJA
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Administrative action under the Constitution:
The constitutional meaning given to administrative action by the courts has been
closely informed by the separation of powers
Administrative action in general:
In the SARFU case, the CC admitted that deciding what is and what is not
administrative action may be difficult and suggested that it would have to be done on
a case-by-case basis. It offered the following as the relevant considerations in the
diagnosis:
The source of the power
The nature of the power
ADMINISTRATIVE ACTION
SARFU (cont…)
Its subject matter
Whether it involves the exercise of a public duty
And how closely it is related to policy matters – which are not administrative. Or
To the implementation of legislation, which is characteristics of administrative
action
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NB: In the SARFU matter – the Court further pointed out that, ‘membership of the executive
branch of government is not an entirely reliable way of identifying the authors of administrative
action
The phrase used in the Constitution is not, after all, ‘executive’ action, but ‘administrative’
action.
Can judicial officers exercise administrative functions?
Yes they can. For instance, a judge issuing to a foreign government a letter of request for
assistance in a criminal matter.
This action, and also an informal, non-statutory request, were regarded as administrative in
Kolbatschenko v King NO
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It is also possible for the following to exercise administrative actions:
Original legislators (Parliament, provincial legislatures and municipal councils)
In Transnet Ltd vs Goodman Brothers, the Court held that ‘some acts of a
functionary may amount to administrative action, others may not’
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Case Law:
In Premier, Mpumalanga vs Executive Committee, Association of State-Aided Schools
1999 (2) SA 91 (CC):
The court held that the decision of a provincial MEC to withdraw bursaries from
state-aided schools amounts to administrative action under the Constitution
In Janse van Rensburg NO v Minister of Trade & Industry NO 2001 (1) SA 29 (CC):
Where the Minister had power to suspend the activities of a company and to
attach or freeze its assets, the court regarded the power as being subject to the
section 33 rights and thus indirectly classified it as administrative action.
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In Dawood vs Minister of Home Affairs 2000 (3) SA 936 (CC):
The court regarded the refusal to grant or extend a residence permit as subject
to challenge in administrative review proceedings
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Executive action and policy decision
In the SARFU case, which arose out of the President’s decision to appoint a
commission of inquiry into the administration of rugby, the Constitutional Court
decided that the decision was executive rather than administrative action. The full
court reasoned that the power in question was conferred on the President as
head of state rather than as head of the executive, and that it was an original
constitutional power akin to a prerogative power. Such a commission of inquiry, it said,
was ‘an adjunct to the policy formation responsibility of the President. The Court
observed that the task of formulating policy and initiating legislation are
constitutional responsibilities of the executive branch, and cannot be construed as
administrative action for the purpose of section 33.
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Administrative Action in terms of PAJA
In terms of section 1 of the PAJA,
‘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 preforming a public a public function in terms of an
empowering provision, which adversely affects the rights of any person and which
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The Act lists specific exclusions from the definition:
Executive powers or functions of the national executive
The provincial executive
Municipal council
The legislative functions of Parliament, a provincial legislature or a municipal council
Judicial functions of judicial officers (courts & certain special tribunals)
Traditional leaders
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NB: The definition of administrative action has to be read in the light of the definition of a
‘decision’ and of a ‘failure’
Examples of conduct accepted to be administrative action under the PAJA includes:
Conduct relating to social grants, such as the failure to decide an application for a grant
(falls within PAJA)
A decision to grant authorization under s22 of the Environment Conservation Act
A decision of the Board of Appeal under the Pension Funds Act
Adjudication of a complaint against the holder of a community broadcasting license
Approval of building plans by a local authority
Decision to approve the change of the name of a town
ADMINISTRATIVE ACTION
Requirements listed in section 1 are divided into seven elements:
A decision
By an organ of state (a natural or a juristic person)
Exercising a public power or preforming a public function
In terms of any legislation (or in terms of an empowering provision)
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that adversely affects rights
That has a direct, external legal effect
And that does not fall under any of the listed exclusions
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“A decision”
The South African Law Reform Commission's proposed definition:
(formulation rejected)
Any act performed
Decision taken or rule or standard made
Or which should have been performed, taken or made by various actors.
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For the purpose of PAJA: the following elements must be present –
decision of administrative nature
Under empowering provision
Proposed to be made or required to be made
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In spite of the breadth of the definition, it should not be assumed that every official
act will necessarily qualify as a ‘decision’
There are acts of clerical nature that do not amount to a decision
Example: Lewis JA identified the signing of a declaration and a deed of transfer as
mere clerical acts that would have followed on a decision but would not themselves
amount to administrative action
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The negative effects of the PAJA’s definition:
The Act excludes much of what was ordinarily reviewable at common law
The narrow definition fails to stop the dreaded flood of litigation
Complexity and obscurity of the definition
The sheer difficulty of working out whether something is or not administrative action
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Judicial misdirection
It does not make the ‘administrative action’ related problems go away
Lack of constitutional logic
Disparity between PAJA definition and the meaning that has been given to
administrative action under section 33 of the Constitution
END OF LEARNING UNIT 4
