, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Mr X has come to seek your legal advice on whether the Department’s conduct falls within
the definition of administrative action as set out in Section 1 of the Promotion of Administrative
Justice Act 3 of 2000. In your answer, explain the meaning and legal significance of each
requirement contained in the statutory definition of administrative action and apply these
requirements to the facts above to determine whether PAJA is applicable.
LEGAL OPINION: WHETHER THE DEPARTMENT'S CONDUCT CONSTITUTES
ADMINISTRATIVE ACTION
1. INTRODUCTION
The first question that must be determined in advising Mr X is whether the decision of the Provincial
Department of Transport to revoke his Abnormal Loads Permit constitutes "administrative action" as
defined in section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). This is a
critical threshold question because PAJA only applies if the conduct in question falls within this
definition.¹ The definition of administrative action serves as the "gateway" or "doorstep" requirement
for the application of the right to just administrative action under section 33 of the Constitution.²
Without establishing that administrative action is involved, Mr X cannot rely on the protections
offered by PAJA.³
Section 1 of PAJA defines administrative action as:
"...any decision taken, or any failure to take a decision, by—(a) an organ of state, when—(i)
exercising a power 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; or (b) a natural or juristic
person, other than an organ of state, when exercising a public power or performing a public function
in terms of an empowering provision, which adversely affects the rights of any person and which has
a direct, external legal effect, but does not include..."⁴
This definition contains several cumulative requirements that must all be satisfied. The following
sections explain the legal significance of each requirement and apply them to Mr X's factual
scenario.
2. ANALYSIS OF EACH REQUIREMENT
2.1 A Decision (or Failure to Take a Decision)
Legal Significance: The definition requires that there must be a "decision" or a "failure to take a
decision". The term "decision" is defined broadly in section 1 of PAJA to include any decision of an
administrative nature, including "making, suspending, revoking or refusing to make an order, award
or determination" and "issuing, suspending, revoking or refusing to issue a licence, authority or other
instrument".⁵ The definition also includes "doing or refusing to do any other act or thing of an
administrative nature".⁶ A "failure to take a decision" includes a refusal to take a decision.⁷ The
definition is deliberately wide to encompass the vast range of administrative activities performed by
organs of state.⁸
¹ University of South Africa, ADL2601 Study Guide (Unisa 2019) 8.
² University of South Africa, ADL2601 Study Guide (Unisa 2019) 9.
³ University of South Africa, ADL2601 Study Guide (Unisa 2019) 66.
⁴ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁵ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁶ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁷ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁸ University of South Africa, ADL2601 Study Guide (Unisa 2019) 68.
1. Mr X has come to seek your legal advice on whether the Department’s conduct falls within
the definition of administrative action as set out in Section 1 of the Promotion of Administrative
Justice Act 3 of 2000. In your answer, explain the meaning and legal significance of each
requirement contained in the statutory definition of administrative action and apply these
requirements to the facts above to determine whether PAJA is applicable.
LEGAL OPINION: WHETHER THE DEPARTMENT'S CONDUCT CONSTITUTES
ADMINISTRATIVE ACTION
1. INTRODUCTION
The first question that must be determined in advising Mr X is whether the decision of the Provincial
Department of Transport to revoke his Abnormal Loads Permit constitutes "administrative action" as
defined in section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). This is a
critical threshold question because PAJA only applies if the conduct in question falls within this
definition.¹ The definition of administrative action serves as the "gateway" or "doorstep" requirement
for the application of the right to just administrative action under section 33 of the Constitution.²
Without establishing that administrative action is involved, Mr X cannot rely on the protections
offered by PAJA.³
Section 1 of PAJA defines administrative action as:
"...any decision taken, or any failure to take a decision, by—(a) an organ of state, when—(i)
exercising a power 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; or (b) a natural or juristic
person, other than an organ of state, when exercising a public power or performing a public function
in terms of an empowering provision, which adversely affects the rights of any person and which has
a direct, external legal effect, but does not include..."⁴
This definition contains several cumulative requirements that must all be satisfied. The following
sections explain the legal significance of each requirement and apply them to Mr X's factual
scenario.
2. ANALYSIS OF EACH REQUIREMENT
2.1 A Decision (or Failure to Take a Decision)
Legal Significance: The definition requires that there must be a "decision" or a "failure to take a
decision". The term "decision" is defined broadly in section 1 of PAJA to include any decision of an
administrative nature, including "making, suspending, revoking or refusing to make an order, award
or determination" and "issuing, suspending, revoking or refusing to issue a licence, authority or other
instrument".⁵ The definition also includes "doing or refusing to do any other act or thing of an
administrative nature".⁶ A "failure to take a decision" includes a refusal to take a decision.⁷ The
definition is deliberately wide to encompass the vast range of administrative activities performed by
organs of state.⁸
¹ University of South Africa, ADL2601 Study Guide (Unisa 2019) 8.
² University of South Africa, ADL2601 Study Guide (Unisa 2019) 9.
³ University of South Africa, ADL2601 Study Guide (Unisa 2019) 66.
⁴ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁵ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁶ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁷ Promotion of Administrative Justice Act 3 of 2000, s 1.
⁸ University of South Africa, ADL2601 Study Guide (Unisa 2019) 68.
