PAC2602
Exam-notes.
, lOMoARcPSD|4629831
1. Organ of State:
Organ of state – “organ of state” is defined in section 239 of the Constitution and includes (a) any
department of state or administration in the national, provincial or local sphere of government; or
any other functionary or institution that (i) exercises a power or performs a function in terms of the
Constitution or a provincial constitution; or (ii) exercises a public power or performs a public
function in terms of any legislation. However, a court or a judicial officer is not included.
Broader Definition:
Section 239(a):
any department of state or administration
In the national sphere, “any department of state or administration” refers to departments of state
or government departments such as the Departments of Agriculture, Forestry and Fisheries; Arts
and Culture; Science and Technology; Communications; Basic Education; Higher Education and
Training; Environmental Affairs; Tourism; Finance; Health; Home Affairs; Labour; Trade and
Industry; and so on. “Department” or “administration” may refer to an entire department and/or to
its administrators (officials or a particular official) – the public servant(s). “Organs of state” include
the members of cabinet (the ministers who are the executive heads of the various departments of
state). Deputy ministers are also “organs of state”. Both the President, as head of the national
executive (see s83(a)), and the Deputy President are organs of state as well. Note that although the
President, Deputy President and ministers are organs of state, not all their functions constitute
administrative action. Some of their functions are executive or constitutional functions. This
distinction will become clearer when we discuss “administrative action” in the next learning unit
where we introduce you to the important case of Pharmaceutical Manufacturers Association of
South Africa: In re Ex parte the President of the Republic of South Africa 2000 2 BCLR 241 (CC); 2000
2 SA 674 (CC).
In the provincial sphere, “organs of state” would include provincial departments of state – the
provincial public service, the Premiers of the nine provinces, and the other Members of Executive
Councils (MECs) who are the executive heads of the various provincial departments of state. In the
provincial sphere, we must also distinguish between administrative and executive functions of the
Premiers and the MECs.
In the sphere of local government, “organs of state” include municipalities and various municipal
councils vested with executive authority (s 151(1) and (2) of the Constitution respectively).
In short, in terms of section 239(a), “organ of state” refers to the administrators and
the departments of state constituting the public administration.
Section 239(b)
any other functionary or institution
(i) exercising a power or performing a function 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 …
, lOMoARcPSD|4629831
In terms of section 239(b), the definition of “organ of state” has been broadened.
We notice that this definition now also includes any functionary or institution that is not part of the
public administration, but which either exercises power or performs functions in terms of the
Constitution or a provincial constitution, or exercises public power or performs public functions in
terms of any legislation. It may nevertheless be difficult to decide in a particular case whether the
functionary or institution is acting in a public capacity or a private capacity. Or, more correctly,
whether the functionary or institution is exercising a public power or performing a public function
or a private power or function.
In Chirwa v Transnet Ltd 2008 4 SA 367 (CC), 2008 3 BCLR 251 (CC), Langa CJ observed in the
minority judgment that “… determining whether a power or function is “public” is a notoriously
difficult exercise. There is no simple definition or clear test to be applied” (at para 186).
Notwithstanding Langa CJ’s observation, it is possible to submit that we have to determine in each
case whether:
(a) the functionary exercises public power or performs public functions, and whether
(b) the functionary is doing so in terms of legislation.
The exercise of public power is therefore decisive. Hoexter “Just administrative action” in Currie
and De Waal (2013:659) explains:
This means that whether something is administrative action depends on the public nature of the
power that is being exercised rather than the person exercising it. As the Constitutional Court put it
in a pre-PAJA case [President of the Republic of South Africa v South African Rugby Football Union
(“SARFU”) 2000 1 SA 1 (CC)], what matters is not the functionary but the function.
_________________________________________________________________________________
In terms of s 239 of the Constitution an “organ of state” includes:
(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) any other functionary or institution that (i) exercises a power or performs a function in terms of
the Constitution or a provincial constitution; or (ii) exercises a public power or performs a public
function in terms of any legislation.
A court or a judicial officer is excluded.
The organs of state which can be identified are the sergeant and the police station. The sergeant
because he is a functionary who is (i) exercising a power or performs a function in terms of the
Constitution or (ii) exercises a public power or performs a public function in terms of any legislation.
The police station as such because it represents a department of state or administration established
in terms of the pertinent legislation.
_________________________________________________________________________________
In terms of s 239 of the Constitution the following are organs of state: any department of state or
administration in the national, provincial or local sphere of government; any other functionary or
Exam-notes.
, lOMoARcPSD|4629831
1. Organ of State:
Organ of state – “organ of state” is defined in section 239 of the Constitution and includes (a) any
department of state or administration in the national, provincial or local sphere of government; or
any other functionary or institution that (i) exercises a power or performs a function in terms of the
Constitution or a provincial constitution; or (ii) exercises a public power or performs a public
function in terms of any legislation. However, a court or a judicial officer is not included.
Broader Definition:
Section 239(a):
any department of state or administration
In the national sphere, “any department of state or administration” refers to departments of state
or government departments such as the Departments of Agriculture, Forestry and Fisheries; Arts
and Culture; Science and Technology; Communications; Basic Education; Higher Education and
Training; Environmental Affairs; Tourism; Finance; Health; Home Affairs; Labour; Trade and
Industry; and so on. “Department” or “administration” may refer to an entire department and/or to
its administrators (officials or a particular official) – the public servant(s). “Organs of state” include
the members of cabinet (the ministers who are the executive heads of the various departments of
state). Deputy ministers are also “organs of state”. Both the President, as head of the national
executive (see s83(a)), and the Deputy President are organs of state as well. Note that although the
President, Deputy President and ministers are organs of state, not all their functions constitute
administrative action. Some of their functions are executive or constitutional functions. This
distinction will become clearer when we discuss “administrative action” in the next learning unit
where we introduce you to the important case of Pharmaceutical Manufacturers Association of
South Africa: In re Ex parte the President of the Republic of South Africa 2000 2 BCLR 241 (CC); 2000
2 SA 674 (CC).
In the provincial sphere, “organs of state” would include provincial departments of state – the
provincial public service, the Premiers of the nine provinces, and the other Members of Executive
Councils (MECs) who are the executive heads of the various provincial departments of state. In the
provincial sphere, we must also distinguish between administrative and executive functions of the
Premiers and the MECs.
In the sphere of local government, “organs of state” include municipalities and various municipal
councils vested with executive authority (s 151(1) and (2) of the Constitution respectively).
In short, in terms of section 239(a), “organ of state” refers to the administrators and
the departments of state constituting the public administration.
Section 239(b)
any other functionary or institution
(i) exercising a power or performing a function 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 …
, lOMoARcPSD|4629831
In terms of section 239(b), the definition of “organ of state” has been broadened.
We notice that this definition now also includes any functionary or institution that is not part of the
public administration, but which either exercises power or performs functions in terms of the
Constitution or a provincial constitution, or exercises public power or performs public functions in
terms of any legislation. It may nevertheless be difficult to decide in a particular case whether the
functionary or institution is acting in a public capacity or a private capacity. Or, more correctly,
whether the functionary or institution is exercising a public power or performing a public function
or a private power or function.
In Chirwa v Transnet Ltd 2008 4 SA 367 (CC), 2008 3 BCLR 251 (CC), Langa CJ observed in the
minority judgment that “… determining whether a power or function is “public” is a notoriously
difficult exercise. There is no simple definition or clear test to be applied” (at para 186).
Notwithstanding Langa CJ’s observation, it is possible to submit that we have to determine in each
case whether:
(a) the functionary exercises public power or performs public functions, and whether
(b) the functionary is doing so in terms of legislation.
The exercise of public power is therefore decisive. Hoexter “Just administrative action” in Currie
and De Waal (2013:659) explains:
This means that whether something is administrative action depends on the public nature of the
power that is being exercised rather than the person exercising it. As the Constitutional Court put it
in a pre-PAJA case [President of the Republic of South Africa v South African Rugby Football Union
(“SARFU”) 2000 1 SA 1 (CC)], what matters is not the functionary but the function.
_________________________________________________________________________________
In terms of s 239 of the Constitution an “organ of state” includes:
(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) any other functionary or institution that (i) exercises a power or performs a function in terms of
the Constitution or a provincial constitution; or (ii) exercises a public power or performs a public
function in terms of any legislation.
A court or a judicial officer is excluded.
The organs of state which can be identified are the sergeant and the police station. The sergeant
because he is a functionary who is (i) exercising a power or performs a function in terms of the
Constitution or (ii) exercises a public power or performs a public function in terms of any legislation.
The police station as such because it represents a department of state or administration established
in terms of the pertinent legislation.
_________________________________________________________________________________
In terms of s 239 of the Constitution the following are organs of state: any department of state or
administration in the national, provincial or local sphere of government; any other functionary or
