PBL 310 Unit 2: Meaning of Administrative Action – Class Notes (2019)

Unit 2: Meaning of administrative action
Wednesday, 06 February 2019 11:45 AM



- Administrative action defined in s 1 of PAJA
- Fulfilling promises to people and communities is what administrative action is about
- Where just administrative action is performed, social justice is achieved
- Why is it important to define administrative action?
○ Because only then will be know if PAJA is applicable
○ Positive founding has to be made about this issue (whether or not administrative action or not)
- Why ought some exercises of public power to be excluded from the definition of administrative action?
○ Yes, for 3 reasons:
 Desirability
 Impossibility
 Necessity

Basic approach to reasoning
- Conduct can either be public or private
○ Public - administrative/executive - which legality grounds of review apply where PAJA doesn’t apply
○ Private power - there are a few situations in which private power can be susceptible to review (where the
private power mimics public power - e.g. local sports club)

The role of legality
- Safety net as a basis for judicial review of public power where it is not admin power to ensure accountability of
that power
- If only public power which amounted to administrative action could be reviewable  would not be a good thing
○ Before apartheid president had prerogative powers which means that his conduct was not up for review
- Set of standards which can review non-administrative action:
○ (where conduct is public power but not admin action)
 Lawfulness
 Rationality and
 Must follow a fair process where it would be irrational not to follow a fair process
□ If however conduct is administrative action we have s 33 and PAJA telling us that conduct must
be lawful, reasonable (which is more than just rationality) and that the conduct must be
procedurally fair

□ Complete overlap for non-administrative action and administrative action where we are talking
about review for lawfulness
□ Some degree of fairness in both situations
 Is fairness always required where public power is not admin action?
◊ No fairness is only required where it would be irrational not to follow a fair process
 Yes, only where it would be irrational (**possible MCQ question)
◊ True by virtue of s 33

, ◊ True by virtue of s 33
 All public must be rational, but not all public must be reasonble
◊ It requires rationality, but it requires more than rationality
 Impact of the decision must be proportionate
– Legality requires a lighter form of scrutiny by only requiring that
decisions be rational (there is a legitimate purpose for the decision)
– Whereas reasonableness which is a requirement of admin action also
requires that the impact of the decision should not be disproportionate
□ Admin action and public power which is not admin action ito legality entail two different sets of
standards - however there is a big overlap
 Which standards are more demanding?
◊ Administrative law standards under s 33 and PAJA are more demanding than the
standard required of public power that is not administrative action
◊ Is this a good thing that some forms of public power only required the standards of
legality and not PAJA?
 Reasons some forms of public are not under as much judicial review/should
not be subject to all the demands of admin law:
1) Undesirable to subject certain public conduct to all the reqs of admin
action
 Would cause inefficiency
 Procedural fairness requirements - would cause inefficiency
(if, every time there was a decision, would have to go
through full demands of admin law required)
 Would make it impossible for the executive branch to fulfil
its executive role efficiently
2) Not always possible to impose the full demands of admin law
 In particular with a political decision - not possible to apply
reasonableness
 Where decisions are taken by a majority vote - cannot
establish individually why members made the vote which
they did
 Wouldn’t be possible to ask for reasons
3) Sometimes unnecessary to apply all the demands
 Where legislative decisions are taken - a full process and set of
rules is applicable to creating legislation in parliament - therefore
not necessary for all the demands of admin law rules to apply
 Should all the demands of admin law apply to the /investigations of the SIU
– No  not reasonable to expect the SIU to give continuous reasons for
its investigations and for it to give notice of such investigations
 Would be undesirable for these investigations to be subject to the
full standards of admin law
 Should be able to substantiate whether certain conduct should or
should not be subject to all the demands of admin law
The role of variability

, The role of variability
- Another way to fulfil the separation of powers - is to change the kind of intensity with which review different kinds
of conduct
○ Two ways in which you can ensure sufficient government:
 Not the kind of conduct a fair process should apply to; or
 Should be some kind of fair process, but the extent of the fair process will be very light
- Varying judicial scrutiny

- How to work out what is admin action
○ Determined with reference to s 1 of PAJA which defines admin action and includes a palisade of
qualifications
 First palisade - working out whether or not conduct is a decision
 Second palisade - whether/not the decision is administrative in nature or whether it falls into another
category - only decisions which are admin in nature falls under admin action - needs to be public in
nature
 Third palisade - impact of the decision must be adverse and must affect rights' must also be external
to the decision maker
- Know diagram in slides
- In order for conduct to be admin action:
○ Public official must take a decision [choice between two or more legitimate options]
○ Decision maker can choose to grant or refuse a permit/issue a directive etc.
○ Whenever a choice is made - the choice involves an exercise of discretion (e.g. Valentine's day examples on
ClickUp)
○ When a choice is made - the conduct then becomes not-mechanical in nature
 Choice cannot be made while acting like a machine
 (refer to mechanical example on ClickUp re Valentine's day)

- Administrative law case is a case where administrative law might apply
○ Casino case (which was an administrative law case)
 Courts have to start analysis with "is this a case where administrative law applies?"
□ Any case where the court has to enquire whether or not the conduct is administrative action
such that administrative law applies = an administrative law case
 Casino case was therefore an administrative law case because the court had to decide whether or not
the administrative law might apply
- Whenever we deal with a case in this course we have to ask whether administrative law applies
○ Whenever we deal with conduct and whether or not it involves public power - we have to ask if the conduct
is administrative action or not
○ Requirements for administrative action (does the conduct amount to administrative action - palisade of
qualifications):
 Definitional requirements
□ Difference between the type of conduct we are concerned with and the standards that regulate
that conduct
- Requirements/palisades:
First palisade - working out whether or not conduct is a decision