Unit 3: Requirements of administrative justice: lawful, fair
and reasonable administrative justice
Wednesday, 06 February 2019 11:45 AM
A. Judicial review of administrative action
Prescribed material:
Quinot, pages 106–118
Review (judicial oversight of administrative action) has a very specific – and very limited – nature:
- In general, courts review the manner in which a decision was taken, rather than the substance of that decision –
was the decision taken in the manner prescribed by the relevant law and in a manner consistent with the
requirements of lawfulness, fairness and reasonableness.
- However, sometimes the courts, when reviewing a decision, must inevitably consider the merits of the decision
(particularly when reviewing a decision for reasonableness).
- Section 8 of PAJA provides for the remedies that a court may grant in proceedings for judicial review.
Review Appeal
Concerned with how the decision was taken and whether it is Concerned with whether the correct or the best decision
a decision that complies with all law was taken
- SA courts have the constitutional mandate to review administrative action based on sections 33 and 34 of the
Constitution
- All affected person thus have the right to approach a court for the review of administrative action
Any attempt to limit the right to approach a court for the review of administrative action would
amount to an infringement of constitutional rights and will have to meet the requirement of section
36 if the Constitution as a justifiable limitation of fundamental rights to be constitutionally valid
- There is no general mandate for the courts to hear appeals against administrative action
Judicial review
- Judicial review is the specific procedure that has developed in common law ito which a court scrutinises
administrative action against the rules of administrative law
- Judicial review today is simply the enforcement of section 33 of the Constitution
- Grounds of review:
- In review there are a limited number of causes of action on which an applicant can approach a court to
scrutinise an administrative action
- An applicant must argue his case on review ito one or more of the grounds set out in section 6(2) of PAJA
B. Overview of section 6 of PAJA
,B. Overview of section 6 of PAJA
Administrative justice imposes three basic standards for valid administrative action (in terms of section 33 of the
Constitution, which is given effect by PAJA):
Lawfulness
- Administrators must act within their powers (intra vires rather than ultra vires)
Procedural fairness
- Administrators must follow a fair process
- Administrators must not be biased
Reasonableness
- Administrators must be able to justify their decisions by showing that they are:
Rational (always)
Effective (most of the time)
Proportional (only some of the time)
Section 6(2) of PAJA elaborates on the standards of lawfulness, procedural fairness and reasonableness, by setting out
more detailed requirements of each standard. Most of these requirements were developed under the common law,
prior to the enactment of PAJA, but some of them have been introduced in or revised by section 6(2).
Section 6(2) provides that a court has the power to judicially review an administrative action if the requirements of these
standards have not been met. The courts, when reviewing administrative action, test the action against the
requirements listed in section 6(2).
Section 33 also requires that reasons be afforded for administrative action on request
Action that is inconsistent with the requirements of just administrative action may be found to be invalid in judicial
review proceedings.
Standards for valid administrative action vs grounds of review (i.e. what is wrong
with the manner in which the decision was taken)
Standards Grounds
Lawfulness Unlawfulness
Fairness Unfairness
Reasonableness Unreasonableness
C. Lawfulness
Lawfulness simply entails that an administrator must act within the limits of her powers: those powers conferred upon
her by law.
, Section 6(2)(a)(i):
A court or tribunal has the power to judicially review an administrative action if the administrator who took it was not
authorised to do so by the empowering provision
Section 6(2)(f)(i):
A court or tribunal has the power to judicially review an administrative action if the action itself contravenes a law or is
not authorised by the empowering provision
Empowering provision - section 1 of PAJA:
An empowering provision means any law, a rule of common law, customary law, or an agreement/instrument/other
document ito which an administrative action was purportedly taken
Was the conduct authorised by a lawful, empowering source? (what?)
Prescribed material:
1. Sections 6(2)(a)(i) and 6(2)(f)(i) of PAJA
2. The definition of an ‘empowering provision’ in section 1 of PAJA
3. Hoexter, Chapter 5, pages 256–261
4. Minister of Education v Harris 2001 (4) SA 1297 (CC) paras [8]–[20]
Administrators have no inherent powers.
Their powers must be inferred from a lawful empowering source, which is usually legislation, but may also be
policy documents, guidelines, etc. Powers not exercised in terms of a lawful empowering source (i.e. without
lawful authority) will be unlawful and reviewable in terms of sections 6(2)(a)(i) and 6(2)(f)(i) of PAJA for lack of
authority.
We consider the following scenarios in relation to a lack of authority:
- No empowering provision at all
An administrator’s conduct is unlawful if there exists no provision empowering her to act.
□ See Port Nolloth Municipality v Xhalisa 1991 (3) SA
- Reliance on the wrong empowering provision
Where the administrator acted beyond the express power conferred by an empowering provision, but
there is another possible empowering provision in terms of which the power exercised would have
been authorized and the administrator’s reliance on the wrong provision was a bona fide error, the
administrator will be entitled to rely, ex post facto, on the correct empowering provision.
□ See Minister of Education v Harris 2001 (4) SA 1297 (CC) paras [8]–[20].
In January 2000 the Minister of Education published a notice which stated that a learner
may only be admitted to grade one at an independent school if he or she turns seven in
the course of that calendar year.
The purpose for the notice was to bring independent schools in line with public schools, in
respect of which the Minister had already imposed the turning-seven requirement.
Talya Harris formed part of a group of children who had for three years been attending
and reasonable administrative justice
Wednesday, 06 February 2019 11:45 AM
A. Judicial review of administrative action
Prescribed material:
Quinot, pages 106–118
Review (judicial oversight of administrative action) has a very specific – and very limited – nature:
- In general, courts review the manner in which a decision was taken, rather than the substance of that decision –
was the decision taken in the manner prescribed by the relevant law and in a manner consistent with the
requirements of lawfulness, fairness and reasonableness.
- However, sometimes the courts, when reviewing a decision, must inevitably consider the merits of the decision
(particularly when reviewing a decision for reasonableness).
- Section 8 of PAJA provides for the remedies that a court may grant in proceedings for judicial review.
Review Appeal
Concerned with how the decision was taken and whether it is Concerned with whether the correct or the best decision
a decision that complies with all law was taken
- SA courts have the constitutional mandate to review administrative action based on sections 33 and 34 of the
Constitution
- All affected person thus have the right to approach a court for the review of administrative action
Any attempt to limit the right to approach a court for the review of administrative action would
amount to an infringement of constitutional rights and will have to meet the requirement of section
36 if the Constitution as a justifiable limitation of fundamental rights to be constitutionally valid
- There is no general mandate for the courts to hear appeals against administrative action
Judicial review
- Judicial review is the specific procedure that has developed in common law ito which a court scrutinises
administrative action against the rules of administrative law
- Judicial review today is simply the enforcement of section 33 of the Constitution
- Grounds of review:
- In review there are a limited number of causes of action on which an applicant can approach a court to
scrutinise an administrative action
- An applicant must argue his case on review ito one or more of the grounds set out in section 6(2) of PAJA
B. Overview of section 6 of PAJA
,B. Overview of section 6 of PAJA
Administrative justice imposes three basic standards for valid administrative action (in terms of section 33 of the
Constitution, which is given effect by PAJA):
Lawfulness
- Administrators must act within their powers (intra vires rather than ultra vires)
Procedural fairness
- Administrators must follow a fair process
- Administrators must not be biased
Reasonableness
- Administrators must be able to justify their decisions by showing that they are:
Rational (always)
Effective (most of the time)
Proportional (only some of the time)
Section 6(2) of PAJA elaborates on the standards of lawfulness, procedural fairness and reasonableness, by setting out
more detailed requirements of each standard. Most of these requirements were developed under the common law,
prior to the enactment of PAJA, but some of them have been introduced in or revised by section 6(2).
Section 6(2) provides that a court has the power to judicially review an administrative action if the requirements of these
standards have not been met. The courts, when reviewing administrative action, test the action against the
requirements listed in section 6(2).
Section 33 also requires that reasons be afforded for administrative action on request
Action that is inconsistent with the requirements of just administrative action may be found to be invalid in judicial
review proceedings.
Standards for valid administrative action vs grounds of review (i.e. what is wrong
with the manner in which the decision was taken)
Standards Grounds
Lawfulness Unlawfulness
Fairness Unfairness
Reasonableness Unreasonableness
C. Lawfulness
Lawfulness simply entails that an administrator must act within the limits of her powers: those powers conferred upon
her by law.
, Section 6(2)(a)(i):
A court or tribunal has the power to judicially review an administrative action if the administrator who took it was not
authorised to do so by the empowering provision
Section 6(2)(f)(i):
A court or tribunal has the power to judicially review an administrative action if the action itself contravenes a law or is
not authorised by the empowering provision
Empowering provision - section 1 of PAJA:
An empowering provision means any law, a rule of common law, customary law, or an agreement/instrument/other
document ito which an administrative action was purportedly taken
Was the conduct authorised by a lawful, empowering source? (what?)
Prescribed material:
1. Sections 6(2)(a)(i) and 6(2)(f)(i) of PAJA
2. The definition of an ‘empowering provision’ in section 1 of PAJA
3. Hoexter, Chapter 5, pages 256–261
4. Minister of Education v Harris 2001 (4) SA 1297 (CC) paras [8]–[20]
Administrators have no inherent powers.
Their powers must be inferred from a lawful empowering source, which is usually legislation, but may also be
policy documents, guidelines, etc. Powers not exercised in terms of a lawful empowering source (i.e. without
lawful authority) will be unlawful and reviewable in terms of sections 6(2)(a)(i) and 6(2)(f)(i) of PAJA for lack of
authority.
We consider the following scenarios in relation to a lack of authority:
- No empowering provision at all
An administrator’s conduct is unlawful if there exists no provision empowering her to act.
□ See Port Nolloth Municipality v Xhalisa 1991 (3) SA
- Reliance on the wrong empowering provision
Where the administrator acted beyond the express power conferred by an empowering provision, but
there is another possible empowering provision in terms of which the power exercised would have
been authorized and the administrator’s reliance on the wrong provision was a bona fide error, the
administrator will be entitled to rely, ex post facto, on the correct empowering provision.
□ See Minister of Education v Harris 2001 (4) SA 1297 (CC) paras [8]–[20].
In January 2000 the Minister of Education published a notice which stated that a learner
may only be admitted to grade one at an independent school if he or she turns seven in
the course of that calendar year.
The purpose for the notice was to bring independent schools in line with public schools, in
respect of which the Minister had already imposed the turning-seven requirement.
Talya Harris formed part of a group of children who had for three years been attending
