Administrative law – LAWS4063A
Topic 2: Administrative Action (Including the Principle of Legality)
Prescribed Reading:
• Quinot (2020): Chapter 3 (70-101)
• President of the Republic of South Africa and Others v South African Rugby Football
Union and Others (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10
September 1999) esp para 143 (260 paras)
• Permanent Secretary of the Department of Education of the Government of the
Eastern Cape Province and Another v Ed-U-College (PE) (Section21) [2000] ZACC 23;
2001 (2) SA 1 (CC); 2001 (2) BCLR 118 (CC) (29 November 2000) esp para 18 (25 paras)
• Minister of Defence and Military Veterans v Motau and Others [2014] ZACC 18; 2014
(8) BCLR 930 (CC); 2014 (5) SA 69 (CC) (10 June 2014) esp paras 26-51 and fn 28 (129
paras)
• AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and
Another [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006)
esp paras 39-45 (Yacoob J) and 119-121 (O’Regan J) (155 paras)
• Calibre Clinical Consultants (Pty) Ltd v National Bargaining Council for the Road Freight
Industry [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) (19 July
2010) (64 paras)
• Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works [2005] ZASCA 43; [2005] 3
All SA 33 (SCA); 2005 (6) SA 313 (SCA) (13 May 2005) (36 paras)
• Joseph v City of Johannesburg 2010 (4) SA 55 (CC), esp paras 27-30 [2009] ZACC 30;
2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October 2009) (78 paras)
• Cape Metropolitan Council v Metro Inspection Services Western Cape CC and Others
(10/99) [2001] ZASCA 56 (30 March 2001)
Learning Outcomes:
• Explain the meaning and content of the constitutional right to just administrative
action.
• Explain the meaning and content of the right to just administrative action in terms of
PAJA.
• Explain and critique the definition of administrative action with reference to PAJA.
• Apply and interpret the meaning of administrative action with reference to its
components.
• Explain the meaning, scope and application of the principle of legality.
Page 1 of 13
, 3.1 Introduction
➢ Admin action must be present for admin law to be applied
S33 and PAJA only apply to admin action
1st Q to admin law inquiry = is there admin action?
3.2 Separation of powers and classification of state functions
➢ SoP = useful ref point for contextualising and describing admin action
➢ I.t.o. SoP state institutions and functions classified as – executive, legislative & judicial
Not completely sep in practice due to checks and balances
➢ Executive power: - most often
• Derived from C
• Exercised @ national, provincial & local level (federal)
• Formulation of policy (not AA) & implementation of legislation (AA)
• Exec func not automatically admin action
➢ Legislative power:
• Derived from C
• Exercised @ national, provincial & local level (federal)
• Creation of legislation
• Legislative acts not automatically admin action
➢ Judicial power:
• Unitary
• Derived from C
• Exercise of judicial function not AA
➢ SoP cannot say which functions are AA
Any of the 3 branches’ actions could qualify as AA → more nuanced approach
required
➢ Note:
• Executive has dual nature
President & cabinet: formulates of policy
Public administration: implements policy & legislation
• Thus exec as institutional whole not indicator of presence of admin action
Classification NOT very useful Ultimately question whether qualifies as AA more
nuanced → could be any of the 3 above
Def of AA usually associated w. implementation of legislation (Executive)
Page 2 of 13
Topic 2: Administrative Action (Including the Principle of Legality)
Prescribed Reading:
• Quinot (2020): Chapter 3 (70-101)
• President of the Republic of South Africa and Others v South African Rugby Football
Union and Others (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10
September 1999) esp para 143 (260 paras)
• Permanent Secretary of the Department of Education of the Government of the
Eastern Cape Province and Another v Ed-U-College (PE) (Section21) [2000] ZACC 23;
2001 (2) SA 1 (CC); 2001 (2) BCLR 118 (CC) (29 November 2000) esp para 18 (25 paras)
• Minister of Defence and Military Veterans v Motau and Others [2014] ZACC 18; 2014
(8) BCLR 930 (CC); 2014 (5) SA 69 (CC) (10 June 2014) esp paras 26-51 and fn 28 (129
paras)
• AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and
Another [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006)
esp paras 39-45 (Yacoob J) and 119-121 (O’Regan J) (155 paras)
• Calibre Clinical Consultants (Pty) Ltd v National Bargaining Council for the Road Freight
Industry [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) (19 July
2010) (64 paras)
• Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works [2005] ZASCA 43; [2005] 3
All SA 33 (SCA); 2005 (6) SA 313 (SCA) (13 May 2005) (36 paras)
• Joseph v City of Johannesburg 2010 (4) SA 55 (CC), esp paras 27-30 [2009] ZACC 30;
2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October 2009) (78 paras)
• Cape Metropolitan Council v Metro Inspection Services Western Cape CC and Others
(10/99) [2001] ZASCA 56 (30 March 2001)
Learning Outcomes:
• Explain the meaning and content of the constitutional right to just administrative
action.
• Explain the meaning and content of the right to just administrative action in terms of
PAJA.
• Explain and critique the definition of administrative action with reference to PAJA.
• Apply and interpret the meaning of administrative action with reference to its
components.
• Explain the meaning, scope and application of the principle of legality.
Page 1 of 13
, 3.1 Introduction
➢ Admin action must be present for admin law to be applied
S33 and PAJA only apply to admin action
1st Q to admin law inquiry = is there admin action?
3.2 Separation of powers and classification of state functions
➢ SoP = useful ref point for contextualising and describing admin action
➢ I.t.o. SoP state institutions and functions classified as – executive, legislative & judicial
Not completely sep in practice due to checks and balances
➢ Executive power: - most often
• Derived from C
• Exercised @ national, provincial & local level (federal)
• Formulation of policy (not AA) & implementation of legislation (AA)
• Exec func not automatically admin action
➢ Legislative power:
• Derived from C
• Exercised @ national, provincial & local level (federal)
• Creation of legislation
• Legislative acts not automatically admin action
➢ Judicial power:
• Unitary
• Derived from C
• Exercise of judicial function not AA
➢ SoP cannot say which functions are AA
Any of the 3 branches’ actions could qualify as AA → more nuanced approach
required
➢ Note:
• Executive has dual nature
President & cabinet: formulates of policy
Public administration: implements policy & legislation
• Thus exec as institutional whole not indicator of presence of admin action
Classification NOT very useful Ultimately question whether qualifies as AA more
nuanced → could be any of the 3 above
Def of AA usually associated w. implementation of legislation (Executive)
Page 2 of 13
