Administrative Law Second Semester
Broad recap:
I. Pathways to Review
PAJA: The three grounds for review under PAJA are lawfulness, reasonableness, and procedural
fairness. Applications for review of administrative action must be based on PAJA, in line with the
constitutional principle of subsidiarity.
Primary pathway to review of admin action.
We are going to look at what administrative action in PAJA means throughout this semester.
PAJA is constitutionally mandated legislation and gives effect to the rights in s 33
Not every exercise of public power = admin action!
An admin act will always be an exercise of public power, however – an exercise of public power
will not always be an administrative action.
Public powers are reviewed under the common law (legality), under this umbrella of public
powers – we have administrative action, governed by the PAJA.
Must rely on PAJA > s 33 when reviewing admin action due to the principle of subsidiarity.
In Bato Star: The court stated that the cause of action in challenging administrative action
primarily rises from the PAJA.
Constitutional principles: A challenge may also be brought based on broader constitutional principles –
particularly where the state has acted unconscionably or in breach of principles such as reliance,
accountability, and rationality.
Direct reliance on section 33 of the Constitution: Due to the principle of subsidiarity, direct review
under section 33 is available only in limited instances – for example, to challenge the
constitutionality of PAJA itself (such as where PAJA unreasonably narrows the scope of
“administrative action”). This limitation has been cushioned by the rise of alternative review
pathways.
Section 33 can also be used to challenge another statute for being violation of the right to
administrative action.
However, this has been rarely used. Usually, section 33 is utilised to interpret the PAJA.
S 33 is not obsolete but has limited functionality.
Not for challenging admin action directly.
Principle of legality: This principle applies to other exercises of public power – such as executive action
– whereas PAJA and section 33 are confined to administrative action. At its core, legality requires
lawfulness (Fedsure). In Fedsure, the Constitutional Court emphasised that the exercise of public power
is only legitimate if it is lawful. In Albutt, the court recognised procedural fairness (natural justice,
including the audi alteram partem rule) as part of the principle of legality. In Masetlha, the court held
,there is no procedural fairness requirement for executive action under legality – but in Motau, Khampepe
J clarified that Masetlha did not create an absolute rule.
Safety net for exercises of public power other than admin action
Development of the POL and what it entails now
This concept of legality originates from section 1 of the Constitution, specifically from s 1(c) –
the Rule of law. Within the rule of law, the principle of legality is found.
When we look closer as the case law, we will see how the CC developed this principle of legality.
These cases did not involve administrative action; they involved exercises of public power that
did not meet the threshold of administrative action.
FSP – Fedsure, SARFU, Pharmaceutical Manufacturers. All these three cases brought something
new to the principle of legality.
Fedsure: The CC developed the principle of legality to cover the review of conduct which
involves the exercise of public power which do not involve administrative action. In this case,
it was held that the POL is an important aspect of the rule of law – this principle implies that
a body exercising public power must act within the powers conferred upon it – must be
lawful.
SARFU: There was a decision not of administrative nature, the CC added to Fedsure. The CC
held that the POL requires the holder of the power to act in good faith and not misconstrue
their powers.
Pharmaceutical Manufacturers: The CC, dealing with conduct not of administrative nature,
held that the exercise of public power should not be arbitrary or irrational.
However, the development did not stop there. The decision of Simelane came along:
The CC held that the decision, and the process of making that decision, should be rational –
this introduced the concept of procedural rationality to POL.
Much of a difference between POL and PAJA review?
There was a bit of uncertainty. Initially, the CC held that procedural fairness is not a requirement
for the principle of legality – it is only for PAJA. In a later decision, the CC held that procedural
fairness is relevant under the POL, however – not as we know it under PAJA, instead, it may be
required as a matter of rationality. In a third judgment, the CC held that this should not be
understood as procedural fairness – but procedural rationality.
There are similarities between PAJA and POL – especially in the realm of procedural fairness.
Meanwhile, in practice…
PAJA avoidance and Gijima.
The CC in a later judgment, although in the minority, has said that it might have to reconsider its
decision in Gijima.
In a Gijima type of situation, you would have to review administrative action through the
principle of legality.
, Gijima:
In one specific case, the principle of legality applies (This is an exception). In this case, the
HC and the SCA held that the PAJA applies because the court was reviewing administrative
action. It was an organ of state that has reviewed its own decision.
The CC held otherwise. It looked at s 33 of the Constitution and stated that the administrative
justice right in s 33 applies only to private persons – not the state. The state is the duty bearer
of administrative justice. (this is understandable)
The problem is that the court disregarded the wording of PAJA when it applied this logic.
Section 6(1) of the PAJA provides that ‘any person may approach a court for judicial review’
– this indicates that whether it is a private person or the state, it matters not – they can bring it
for review.
The CC in its reasoning, stated that when an organ of state is seeking self-review in its own
interest, then you do not apply the PAJA – you apply the principle of legality even though it is
administrative action.
The CC however also stated that PAJA may apply to an organ of state if they are challenging
an administrative decision of another organ of state OR where in reviewing its own decision,
it is done in the public interest instead of their own.
Selfish own review = legality, selfless review = PAJA, review of another organ = PAJA.
The problem of this is that the review through PAJA is now dependant on the identity of the
applicant. The same decision may be challenged through legality and PAJA
If I am a person affected by this decision, I can challenge it through PAJA. If I am the
decision maker of this same decision wanting to challenge this for my own interest, I
must go via legality.
There are overlaps between POL and PAJA, however they are not the same.
POL does not have reasonableness, but PAJA does – the administrative action has to be
reasonable (rational and proportional)
POL does not have procedural fairness in a sense, it has procedural rationality – which is required
when to not hear the other side would be irrational.
Under s 7(1) of the PAJA – any challenge to admin action must be brought as soon as possible,
and not later than 180 days after the decision maker has been made aware.
Ultimately, Gijima didn’t avoid PAJA – it just found that PAJA was not applicable on the facts.
Special statutory review: While PAJA is the general legislative standard, Parliament has enacted
specific statutes in various sectors that provide for analogous review regimes outside of PAJA.
Specific > general admin law.
The Labour Relations Act (LRA) and Sidumo – review of CCMA arbitrations.
This deals with review of decisions of CCMA arbitrators.
LRA infused with s 33.
, The review of the CCMA arbitrations was provided for in the LRA, but the grounds of review
were narrow, and there was no mention of reasonableness or rationality.
The court found that the grounds of review in the LRA had to be infused with the s 33 standard of
reasonableness. These grounds were now to be read as including and requiring a ground of
reasonableness.
Apply to other areas of SSR?
Where the LRA path is lacking, the s 33 protection has to be infused.
Common law: Since the enactment of the Bill of Rights — especially section 33 — the common law is
no longer the primary source of administrative law. However, it still plays a supporting role in the
broader administrative justice system.
Indirect use: informs the interpretation of PAJA and s 33 (the PAJA grounds of review came from the
CL)
Direct use: for review of private power by private bodies.
ALSO acts as a gap filler, and ameliorates the harsher aspects of PAJA (Kohn – Our Curious
Administrative Law Love Triangle)
Compared to pre-1994, CL has a fairly limited role
Fairly limited scope.
Public law claim pertaining to unconscionable State conduct
This is NOT one of the pathways to review under administrative law despite seeming so.
Origin – KZN Joint Liaison Committee v MEC, Dept of Education KwaZulu-Natal.
Principles of reliance, accountability and rationality.
NOT concerned with s 33 but other right(s).
May lead to further PAJA avoidance.
Pathways to review: conclusion
NOT free alternatives despite what some courts do
You cannot decide that you do not want to use the PAJA, or you want to use the common law
because its easier. Even though the courts have had difficulties in navigating these pathways, there is
usually no choice – as the CC has stated, where you are dealing with admin action, you must deal
with the PAJA unless you are challenging it through section 33.
Concern is the ever-expanding POL.
The reason the POL is a threat to PAJA is because courts have far too often relied on the POL instead
of doing the hard work that the PAJA requires.
PAJA avoidance can occur in many ways – in some cases courts refuse outright to use the PAJA. In
some cases, we have courts using the POL because the grounds of review are similar, and they might
get the court to the same outcome anyway.
We also get cases that touch on both PAJA and the POL – and the court sometimes doesn’t make it
clear whether it is reviewing under the POL or the PAJA.
Broad recap:
I. Pathways to Review
PAJA: The three grounds for review under PAJA are lawfulness, reasonableness, and procedural
fairness. Applications for review of administrative action must be based on PAJA, in line with the
constitutional principle of subsidiarity.
Primary pathway to review of admin action.
We are going to look at what administrative action in PAJA means throughout this semester.
PAJA is constitutionally mandated legislation and gives effect to the rights in s 33
Not every exercise of public power = admin action!
An admin act will always be an exercise of public power, however – an exercise of public power
will not always be an administrative action.
Public powers are reviewed under the common law (legality), under this umbrella of public
powers – we have administrative action, governed by the PAJA.
Must rely on PAJA > s 33 when reviewing admin action due to the principle of subsidiarity.
In Bato Star: The court stated that the cause of action in challenging administrative action
primarily rises from the PAJA.
Constitutional principles: A challenge may also be brought based on broader constitutional principles –
particularly where the state has acted unconscionably or in breach of principles such as reliance,
accountability, and rationality.
Direct reliance on section 33 of the Constitution: Due to the principle of subsidiarity, direct review
under section 33 is available only in limited instances – for example, to challenge the
constitutionality of PAJA itself (such as where PAJA unreasonably narrows the scope of
“administrative action”). This limitation has been cushioned by the rise of alternative review
pathways.
Section 33 can also be used to challenge another statute for being violation of the right to
administrative action.
However, this has been rarely used. Usually, section 33 is utilised to interpret the PAJA.
S 33 is not obsolete but has limited functionality.
Not for challenging admin action directly.
Principle of legality: This principle applies to other exercises of public power – such as executive action
– whereas PAJA and section 33 are confined to administrative action. At its core, legality requires
lawfulness (Fedsure). In Fedsure, the Constitutional Court emphasised that the exercise of public power
is only legitimate if it is lawful. In Albutt, the court recognised procedural fairness (natural justice,
including the audi alteram partem rule) as part of the principle of legality. In Masetlha, the court held
,there is no procedural fairness requirement for executive action under legality – but in Motau, Khampepe
J clarified that Masetlha did not create an absolute rule.
Safety net for exercises of public power other than admin action
Development of the POL and what it entails now
This concept of legality originates from section 1 of the Constitution, specifically from s 1(c) –
the Rule of law. Within the rule of law, the principle of legality is found.
When we look closer as the case law, we will see how the CC developed this principle of legality.
These cases did not involve administrative action; they involved exercises of public power that
did not meet the threshold of administrative action.
FSP – Fedsure, SARFU, Pharmaceutical Manufacturers. All these three cases brought something
new to the principle of legality.
Fedsure: The CC developed the principle of legality to cover the review of conduct which
involves the exercise of public power which do not involve administrative action. In this case,
it was held that the POL is an important aspect of the rule of law – this principle implies that
a body exercising public power must act within the powers conferred upon it – must be
lawful.
SARFU: There was a decision not of administrative nature, the CC added to Fedsure. The CC
held that the POL requires the holder of the power to act in good faith and not misconstrue
their powers.
Pharmaceutical Manufacturers: The CC, dealing with conduct not of administrative nature,
held that the exercise of public power should not be arbitrary or irrational.
However, the development did not stop there. The decision of Simelane came along:
The CC held that the decision, and the process of making that decision, should be rational –
this introduced the concept of procedural rationality to POL.
Much of a difference between POL and PAJA review?
There was a bit of uncertainty. Initially, the CC held that procedural fairness is not a requirement
for the principle of legality – it is only for PAJA. In a later decision, the CC held that procedural
fairness is relevant under the POL, however – not as we know it under PAJA, instead, it may be
required as a matter of rationality. In a third judgment, the CC held that this should not be
understood as procedural fairness – but procedural rationality.
There are similarities between PAJA and POL – especially in the realm of procedural fairness.
Meanwhile, in practice…
PAJA avoidance and Gijima.
The CC in a later judgment, although in the minority, has said that it might have to reconsider its
decision in Gijima.
In a Gijima type of situation, you would have to review administrative action through the
principle of legality.
, Gijima:
In one specific case, the principle of legality applies (This is an exception). In this case, the
HC and the SCA held that the PAJA applies because the court was reviewing administrative
action. It was an organ of state that has reviewed its own decision.
The CC held otherwise. It looked at s 33 of the Constitution and stated that the administrative
justice right in s 33 applies only to private persons – not the state. The state is the duty bearer
of administrative justice. (this is understandable)
The problem is that the court disregarded the wording of PAJA when it applied this logic.
Section 6(1) of the PAJA provides that ‘any person may approach a court for judicial review’
– this indicates that whether it is a private person or the state, it matters not – they can bring it
for review.
The CC in its reasoning, stated that when an organ of state is seeking self-review in its own
interest, then you do not apply the PAJA – you apply the principle of legality even though it is
administrative action.
The CC however also stated that PAJA may apply to an organ of state if they are challenging
an administrative decision of another organ of state OR where in reviewing its own decision,
it is done in the public interest instead of their own.
Selfish own review = legality, selfless review = PAJA, review of another organ = PAJA.
The problem of this is that the review through PAJA is now dependant on the identity of the
applicant. The same decision may be challenged through legality and PAJA
If I am a person affected by this decision, I can challenge it through PAJA. If I am the
decision maker of this same decision wanting to challenge this for my own interest, I
must go via legality.
There are overlaps between POL and PAJA, however they are not the same.
POL does not have reasonableness, but PAJA does – the administrative action has to be
reasonable (rational and proportional)
POL does not have procedural fairness in a sense, it has procedural rationality – which is required
when to not hear the other side would be irrational.
Under s 7(1) of the PAJA – any challenge to admin action must be brought as soon as possible,
and not later than 180 days after the decision maker has been made aware.
Ultimately, Gijima didn’t avoid PAJA – it just found that PAJA was not applicable on the facts.
Special statutory review: While PAJA is the general legislative standard, Parliament has enacted
specific statutes in various sectors that provide for analogous review regimes outside of PAJA.
Specific > general admin law.
The Labour Relations Act (LRA) and Sidumo – review of CCMA arbitrations.
This deals with review of decisions of CCMA arbitrators.
LRA infused with s 33.
, The review of the CCMA arbitrations was provided for in the LRA, but the grounds of review
were narrow, and there was no mention of reasonableness or rationality.
The court found that the grounds of review in the LRA had to be infused with the s 33 standard of
reasonableness. These grounds were now to be read as including and requiring a ground of
reasonableness.
Apply to other areas of SSR?
Where the LRA path is lacking, the s 33 protection has to be infused.
Common law: Since the enactment of the Bill of Rights — especially section 33 — the common law is
no longer the primary source of administrative law. However, it still plays a supporting role in the
broader administrative justice system.
Indirect use: informs the interpretation of PAJA and s 33 (the PAJA grounds of review came from the
CL)
Direct use: for review of private power by private bodies.
ALSO acts as a gap filler, and ameliorates the harsher aspects of PAJA (Kohn – Our Curious
Administrative Law Love Triangle)
Compared to pre-1994, CL has a fairly limited role
Fairly limited scope.
Public law claim pertaining to unconscionable State conduct
This is NOT one of the pathways to review under administrative law despite seeming so.
Origin – KZN Joint Liaison Committee v MEC, Dept of Education KwaZulu-Natal.
Principles of reliance, accountability and rationality.
NOT concerned with s 33 but other right(s).
May lead to further PAJA avoidance.
Pathways to review: conclusion
NOT free alternatives despite what some courts do
You cannot decide that you do not want to use the PAJA, or you want to use the common law
because its easier. Even though the courts have had difficulties in navigating these pathways, there is
usually no choice – as the CC has stated, where you are dealing with admin action, you must deal
with the PAJA unless you are challenging it through section 33.
Concern is the ever-expanding POL.
The reason the POL is a threat to PAJA is because courts have far too often relied on the POL instead
of doing the hard work that the PAJA requires.
PAJA avoidance can occur in many ways – in some cases courts refuse outright to use the PAJA. In
some cases, we have courts using the POL because the grounds of review are similar, and they might
get the court to the same outcome anyway.
We also get cases that touch on both PAJA and the POL – and the court sometimes doesn’t make it
clear whether it is reviewing under the POL or the PAJA.
