Administrative Action — Setting the Scene
Introductory Remarks From here, we will concentrate on the essence of administrative law, namely
administrative action must be
exercised validly.
Therefore, we should ask the question: When is administrative action performed validly?
Administrative action is valid when the decision of the administrator or organ of state is authorised in
law and all the requirements set by the law are met.. first, we must refer to the sources of adminIstrative
law, which include:
(1) the Constitution
(2) Legislation
(3) Case law
(4) Common law
(5) Administrative practice
(6) Ubuntu
(7) International law
(8) Writings in boos and journals expressing academic opinions
(9) Policy documents such as Green and White Papers
(10) Reports by functionaries such as the public protector
(11) Foreign law
To determine the requirements for valid administrative action, focus on the Constitution and specifically
on section 33 — the right to administrative action. Section 33represents the overarching constitutional
requirement that all administrative action must comply with if it is to be “just” (i.e. constitutionally
valid). Such action must be
(a) Lawful
(b) Reasonable
(c) Procedurally fair and
(d) Written reasons must be provided for any administrative action that adversely affects rights
Before the new constitutional dispensation came into operation (the introduction of the interim
Constitution in 1994 and the final Constitution in 1996), we had to rely mainly on
(i) Legislation
(ii) Common law
(iii) Judicial precedent or court decisions
To determine the requirements for valid administrative action. We still have to look at all other sources,
but more particularly both empowering legislation (before and after the Constitution) and PAJA,
common law and case law to understand how the requirements for validity have developed over the
years and how they contribute to the complete picture.
Other requirements for validity, for example those found in and developed by legislation, court decisions
ad common law, will be discussed on terms of the overarching constitutional requirement of section 33
of the Constitution.
,Just administrative action relates to the authority of the Adminstrator to act or take a decision. The
Adminstrator must be “legally empowered to perform the act”. The performance of the act must be by
the “lawfully constituted authority” only. In taking the decision, the administrator must obey the
prescriptions of the law, exercise his/her discretion impartially, follow the correct procedures taking the
decision — act procedurally fairly by, for example, listening to what the person has to say. Also, the
,decision-maker needs to justify the decision. The decision must be reasonable. The best way to justify
the decision is to provide adequate reasons for the decision.
Scenario 11 (from the study guide)
Sello has been issued with a licence to sell food from his food stall. The licensing officer who is issued the
licence followed the written and formal requirements for the issuing of licences set out in the municipal
by-law to the letter. However, he also demanded that Sello pay him an amount of R500 as “commission”
for issuing the licence (there is no such provision by the law).
Every day, Sello sells food at his stall. A few months later, the municipality open a community centre next
to his stall. Amongst other things, food is sold at the community centre. One day, Sello is told by Ms
Justina form he metre to remove his stall. He refuses. The next day, Ms Justina arrives at the stall with a
letter from the municipality informing Sello that the municipality has decided to revoke or cancel his
licence with immediate effect and that he must remove his stall immediately.
Sello approaches the licensing department at the municipality. The officials refuse to give him any
reasons for the cancellation of his license. However, he is told he may appear in person before a special
meeting of a licence review committee in a week’s time. At the hearing, eh is to allowed to present his
side of the story, neither is he allowed to raise any questions about the cancellation of the licence. He is
also prevented by the chairman of the committee, mrs Shady Dealings, from cross-examining the
witnesses.
The review committee rules that the cancellation of Sello’s licence was lawful, since provision is made for
the cancellation of licences in the by-law. Hello suddenly remembers that he has heard that Mrs Dealings
is the manager of the community centre in terms of a licence issued by the municipality.
ACTIVITY 6.1
Read the scenario carefully write down what you think are poor examples of just administrative action.
Give reasons for your views.
The concept of just administrative action
Section 33 of the Constitution
Section 33 reads as follows (you must memorise this definition)
Just Administrative Action
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
(3) National legislation must be enacted to give effect to these rights, and must —
(a) provide for the review of administrative action by 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
Note the following points:
(a) Just administrative action is aimed at preventing organs of state, public institutions and functionaries,
as well as natural and juristic persons — administrators — from abusing or misusing their power in their
dealings with an individual who is in subordinate position.. hence the constitutional demand that
administrative action must be performed lawfully, reasonably and in a procedurally fair manner.
(b) Just administrative action is directed at protecting him/her in any dealings with administrators. It
guarantees the individual just treatment/justice, fairness and reasonableness in his/her relationship and
dealings with administrators.
The Principles and Values of Section 195(1) of the Constitution and their relation to just administrative
action
, The importance of the protection of the individual and the prevention of abuse of power on the part of
administrators are emphasised though the listing of a number of values and principles, which are
outlined in chapter 10 of the Constitution under the title “Public Administration”. It contains an
inventory of values to which the public administration must adhere.
Section 195(1), entitled “Basic Values and Principles Governing [the] Public Administration” lists the
principles that the public administration must only take account of but must also obey. Public
administration must be governed by the “democratic values and principles enshrined in the
Constitution”, including the following:
(a) The promotion and maintenance of a high standard of professional ethics;
(b) The promotion of efficient, economic and effective use of resources;
(c) A development-oriented public administration;
(d) The provision of services impartially, fairly, equitably and without bias;
(e) A responsiveness to people’s needs and the encouragement of the public to participate in
policymaking;
(f) An accountable public administration;
(g) The fostering of transparency by providing the public with timely accessible and accurate
information;
(h) The cultivation of good human-resource management and career-development practices, to
maximise human potential;
(i) A public administration which is broadly representative of the South African pope, with employment
and personnel management practices based on ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve such broad representation.
In terms of subsection (2), the above-mentioned principles apply to (a) [the administration in every
sphere of government; (b) organs of state; and (c) public enterprises. Submission to these values and
principles will be in evidence when administrators abide by and obey them. Amongst the values crucially
important to administrators are the following: “…*a+ democratic government to ensure accountability,
responsiveness and openness” (see s1 of the Constitution). In complying with and acting upon these
principles, the administration of the state is kept on a sound legal footing and the requirements of just
administration action are met.
We can therefore say that just administrative action, which by its very nature includes and incorporates
accountability, responsiveness, openness and transparency in the execution of functions, will ensure:
(a) increased participation by the public in the exercise of public functions
(b) That the administration will weigh up their decisions against the values enshrined int he Constitution
(c) Administrative accountability
Other Overarching Terms Used to Refer to Just Administrative Action
Just “administrative action” is not the only term used to describe the overall validity of administrative
action or the requirement that all aspects of a particular matter must be considered by the
administration. Other collective concepts relating to just administrative action have developed over the
years — primarily through case law. When studying court decisions in which administrative-law
principles have been applied, you may come across terms such as
• Intra vires or ultra vires
• Applying one’s mind to the matter
• Legality
These are synonyms for just administrative action.
Introductory Remarks From here, we will concentrate on the essence of administrative law, namely
administrative action must be
exercised validly.
Therefore, we should ask the question: When is administrative action performed validly?
Administrative action is valid when the decision of the administrator or organ of state is authorised in
law and all the requirements set by the law are met.. first, we must refer to the sources of adminIstrative
law, which include:
(1) the Constitution
(2) Legislation
(3) Case law
(4) Common law
(5) Administrative practice
(6) Ubuntu
(7) International law
(8) Writings in boos and journals expressing academic opinions
(9) Policy documents such as Green and White Papers
(10) Reports by functionaries such as the public protector
(11) Foreign law
To determine the requirements for valid administrative action, focus on the Constitution and specifically
on section 33 — the right to administrative action. Section 33represents the overarching constitutional
requirement that all administrative action must comply with if it is to be “just” (i.e. constitutionally
valid). Such action must be
(a) Lawful
(b) Reasonable
(c) Procedurally fair and
(d) Written reasons must be provided for any administrative action that adversely affects rights
Before the new constitutional dispensation came into operation (the introduction of the interim
Constitution in 1994 and the final Constitution in 1996), we had to rely mainly on
(i) Legislation
(ii) Common law
(iii) Judicial precedent or court decisions
To determine the requirements for valid administrative action. We still have to look at all other sources,
but more particularly both empowering legislation (before and after the Constitution) and PAJA,
common law and case law to understand how the requirements for validity have developed over the
years and how they contribute to the complete picture.
Other requirements for validity, for example those found in and developed by legislation, court decisions
ad common law, will be discussed on terms of the overarching constitutional requirement of section 33
of the Constitution.
,Just administrative action relates to the authority of the Adminstrator to act or take a decision. The
Adminstrator must be “legally empowered to perform the act”. The performance of the act must be by
the “lawfully constituted authority” only. In taking the decision, the administrator must obey the
prescriptions of the law, exercise his/her discretion impartially, follow the correct procedures taking the
decision — act procedurally fairly by, for example, listening to what the person has to say. Also, the
,decision-maker needs to justify the decision. The decision must be reasonable. The best way to justify
the decision is to provide adequate reasons for the decision.
Scenario 11 (from the study guide)
Sello has been issued with a licence to sell food from his food stall. The licensing officer who is issued the
licence followed the written and formal requirements for the issuing of licences set out in the municipal
by-law to the letter. However, he also demanded that Sello pay him an amount of R500 as “commission”
for issuing the licence (there is no such provision by the law).
Every day, Sello sells food at his stall. A few months later, the municipality open a community centre next
to his stall. Amongst other things, food is sold at the community centre. One day, Sello is told by Ms
Justina form he metre to remove his stall. He refuses. The next day, Ms Justina arrives at the stall with a
letter from the municipality informing Sello that the municipality has decided to revoke or cancel his
licence with immediate effect and that he must remove his stall immediately.
Sello approaches the licensing department at the municipality. The officials refuse to give him any
reasons for the cancellation of his license. However, he is told he may appear in person before a special
meeting of a licence review committee in a week’s time. At the hearing, eh is to allowed to present his
side of the story, neither is he allowed to raise any questions about the cancellation of the licence. He is
also prevented by the chairman of the committee, mrs Shady Dealings, from cross-examining the
witnesses.
The review committee rules that the cancellation of Sello’s licence was lawful, since provision is made for
the cancellation of licences in the by-law. Hello suddenly remembers that he has heard that Mrs Dealings
is the manager of the community centre in terms of a licence issued by the municipality.
ACTIVITY 6.1
Read the scenario carefully write down what you think are poor examples of just administrative action.
Give reasons for your views.
The concept of just administrative action
Section 33 of the Constitution
Section 33 reads as follows (you must memorise this definition)
Just Administrative Action
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
(3) National legislation must be enacted to give effect to these rights, and must —
(a) provide for the review of administrative action by 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
Note the following points:
(a) Just administrative action is aimed at preventing organs of state, public institutions and functionaries,
as well as natural and juristic persons — administrators — from abusing or misusing their power in their
dealings with an individual who is in subordinate position.. hence the constitutional demand that
administrative action must be performed lawfully, reasonably and in a procedurally fair manner.
(b) Just administrative action is directed at protecting him/her in any dealings with administrators. It
guarantees the individual just treatment/justice, fairness and reasonableness in his/her relationship and
dealings with administrators.
The Principles and Values of Section 195(1) of the Constitution and their relation to just administrative
action
, The importance of the protection of the individual and the prevention of abuse of power on the part of
administrators are emphasised though the listing of a number of values and principles, which are
outlined in chapter 10 of the Constitution under the title “Public Administration”. It contains an
inventory of values to which the public administration must adhere.
Section 195(1), entitled “Basic Values and Principles Governing [the] Public Administration” lists the
principles that the public administration must only take account of but must also obey. Public
administration must be governed by the “democratic values and principles enshrined in the
Constitution”, including the following:
(a) The promotion and maintenance of a high standard of professional ethics;
(b) The promotion of efficient, economic and effective use of resources;
(c) A development-oriented public administration;
(d) The provision of services impartially, fairly, equitably and without bias;
(e) A responsiveness to people’s needs and the encouragement of the public to participate in
policymaking;
(f) An accountable public administration;
(g) The fostering of transparency by providing the public with timely accessible and accurate
information;
(h) The cultivation of good human-resource management and career-development practices, to
maximise human potential;
(i) A public administration which is broadly representative of the South African pope, with employment
and personnel management practices based on ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve such broad representation.
In terms of subsection (2), the above-mentioned principles apply to (a) [the administration in every
sphere of government; (b) organs of state; and (c) public enterprises. Submission to these values and
principles will be in evidence when administrators abide by and obey them. Amongst the values crucially
important to administrators are the following: “…*a+ democratic government to ensure accountability,
responsiveness and openness” (see s1 of the Constitution). In complying with and acting upon these
principles, the administration of the state is kept on a sound legal footing and the requirements of just
administration action are met.
We can therefore say that just administrative action, which by its very nature includes and incorporates
accountability, responsiveness, openness and transparency in the execution of functions, will ensure:
(a) increased participation by the public in the exercise of public functions
(b) That the administration will weigh up their decisions against the values enshrined int he Constitution
(c) Administrative accountability
Other Overarching Terms Used to Refer to Just Administrative Action
Just “administrative action” is not the only term used to describe the overall validity of administrative
action or the requirement that all aspects of a particular matter must be considered by the
administration. Other collective concepts relating to just administrative action have developed over the
years — primarily through case law. When studying court decisions in which administrative-law
principles have been applied, you may come across terms such as
• Intra vires or ultra vires
• Applying one’s mind to the matter
• Legality
These are synonyms for just administrative action.
