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
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
