1. Background and Context
Context:
1) What is administrative law?
o Definition:
o A subset of public, constitutional law that both empowers public authorities and holds them
accountable under the rule of law
o Transformative constitutionalism promotes a culture of justification over a culture of authority
2) Exercises of public power:
o Scope: found everywhere in daily life
o Not always clear-cut; often assessed on a range of factors
o Exclusions:
Private actions by public officials (dismissing a private secretary) are not administrative
actions
3) s33 CT Just administrative action:
o Three rights:
o Lawfulness
o Reasonableness
o Procedural fairness
o Right to written reasons when rights are adversely affected
o Requires national legislation to give effect PAJA
4) PAJA
o s1: Definition of AA
Applies to:
OOS when exercising constitutional or legislative powers
Private persons performing public functions under a law
Must:
Adversely affect rights and
Have direct, external legal effect
Exclusions:
Recommendations or internal decisions with no external legal consequence
Private decisions (employment of personal staff)
o s6: Judicial Review grounds
a) Lawfulness:
Must align with empowering provision
Key questions:
o Was the right person authorized?
o Was it made in the correct manner?
b) Procedural fairness:
Affected parties must be:
o Notified, and
o Given a chance to be heard
c) Reasonableness:
Consists of rationality and proportionality
o Rationality:
Is there a logical connection between action and purpose?
o Proportionality:
Was there a less restrictive way to achieve the same goal?
Pharmaceutical Manufacturers & Bato Star are
applicable here
o s8: Remedies:
Court can make any just and equitable order, including:
Setting aside the action
Remitting back for re-decision
Substituting its own decision
, 4) Administrative law analysis:
o a) Identify the challenged action
o b) Determine if it qualifies as AA (S1 PAJA)
o c) Is yes: assess whether it is
i) Lawful
ii) Reasonable
iii) Procedurally fair
o d) If no: determine the appropriate remedy (S8 PAJA)
1.1 Sources of Law:
1) Pre-constitutional era CL:
o System based on parliamentary sovereignty and influenced by English Law
o Legacy:
Still reflects features from English and other Commonwealth systems (Aus, Canada, NZ,
India)
CL remains a valuable source but is subject to the CT
2) Interim Constitution (ICT) 1993:
o Significance:
CT supremacy introduced
CL not abolished, but became subordinate to the CT
o s24 ICT:
First entrenched the right to administrative justice
Broadened the scope of reviewable AA
3) Final Constitution (CT):
o 1996 s33:
Right to lawful, reasonable and procedurally fair AA
Right to written reasons if rights are adversely affected
Requires national legislation to:
Provide for review
Impose a state duty to uphold these rights
Promote an efficient administration
Comparison to s24 ICT:
Simpler and clearer language
Mandatory legislation now imposed on Parliament
4) Pre-PAJA: Transitional period 1994-2000:
o s33 not self-sufficient, must be read with:
Schedule 6, Item 23 of CT until PAJA was passed, s33 must be interpreted in line with
S24 ICT
o PAJA only enacted in 2000, courts relied on constitutional principles and CL
o No definition of AA in s24 or s33 courts had to develop this concept
5) Judicial interpretation “AA”:
o Nel v Le Roux:
Judicial action is not AA
Concerned summary sentencing
Finding: Judicial actions are not administrative because:
Already subject to appeal and review
SOP doctrine respected
Not all public power is administrative
,o Fedsure Life Assurance:
Facts: local government passed budget reallocating funds: challenged under admin law
Issue: are municipal budget decision administrative?
Background:
Pre-1994: local governments had delegated powers
Post-1996: local governments have original constitutional powers
Court:
= legislative action
Local councils are elected, act deliberately and are politically accountable not
administrative
[41]-[42]:
By-laws made by the council are legislative in nature
There is no ‘fit’ between council powers and s24
Principle of legality:
Where s33 / PAJA doesn’t apply, all exercises of public power must still be lawful
Key takeaways:
CL remains important, but constitutional supremacy applies
Not all public power = AA
o Legislative and judicial actions are excluded
Principle of legality ensures minimum accountability for all public power
o President RSA v SARFU:
Executive does not = AA
Facts:
President Mandela appointed a commission of inquiry into SARFU
SARFU challenged the decision are reviewable AA
HC asked President to testify about his decision – first time for a sitting president
CC had to decide if = AA
Legal principle:
It is the function not the functionary that matters
[141]: What matters is not so much the functionary as the function. The question is
whether the task itself is administrative or not
3 factor test: Admin v Executive:
Source of power: s84(2)(f) = original constitutional power of President
Nature of power: political in nature more executive
Relation to policy v implementation: closer to policy formation, not legislative
implementation
Court: Not AA
[147]: The appointment of the commission did not = AA within the meaning of s33
o Still subject to review under principle of legality
[148]: The President must act in good faith and must not misconstrue the powers
Key takeaways:
Function > Functionary in determining AA
Executive does NOT = Administrative
Commissions of inquiry = executive power Not reviewable under s33
Still reviewable under legality principle
o Pharmaceutical Manufacturers:
Facts:
President prematurely brought an Act into force without regulations
Court asked: Is the President’s decision reviewable?
CL v CT? Container Logistics:
SCA held that CL and s33 are parallel systems
Litigants could choose either
[44]: Rejected the above: There is only one system of law, it is shaped by the CT.
all law including CL derives it force from the CT
Takeaway: CL is not separate from constitutional law
Nature of power: Legislative v Administrative
Decision to bring Act into force:
o = political not mechanical + closer to legislative than administration
o Core Principles Recap
, No dual system: Common law = part of constitutional order.
Admin ≠ executive/legislative/judicial, but:
All public power is subject to legality:
Must be lawful (Fedsure),
Must be rational (Pharmaceutical),
Must be in good faith (SARFU),
But not necessarily fair or reasonable (unless PAJA applies)
6) PAJA 2000:
o Purpose:
Gives effect to s 33 of the Constitution.
Defines administrative action.
Creates grounds for review:
Lawfulness
Procedural fairness
Reasonableness
Duty to give reasons
o When PAJA applies:
Must challenge directly under PAJA if the action qualifies as administrative.
o When PAJA doesn’t apply:
Use principle of legality (backup review).
From s 1(c): SA = rule of law state.
Applies to all public power.
Requires:
o Lawfulness
o Rationality
Does not require:
o Procedural fairness
o Reasonableness
Context:
1) What is administrative law?
o Definition:
o A subset of public, constitutional law that both empowers public authorities and holds them
accountable under the rule of law
o Transformative constitutionalism promotes a culture of justification over a culture of authority
2) Exercises of public power:
o Scope: found everywhere in daily life
o Not always clear-cut; often assessed on a range of factors
o Exclusions:
Private actions by public officials (dismissing a private secretary) are not administrative
actions
3) s33 CT Just administrative action:
o Three rights:
o Lawfulness
o Reasonableness
o Procedural fairness
o Right to written reasons when rights are adversely affected
o Requires national legislation to give effect PAJA
4) PAJA
o s1: Definition of AA
Applies to:
OOS when exercising constitutional or legislative powers
Private persons performing public functions under a law
Must:
Adversely affect rights and
Have direct, external legal effect
Exclusions:
Recommendations or internal decisions with no external legal consequence
Private decisions (employment of personal staff)
o s6: Judicial Review grounds
a) Lawfulness:
Must align with empowering provision
Key questions:
o Was the right person authorized?
o Was it made in the correct manner?
b) Procedural fairness:
Affected parties must be:
o Notified, and
o Given a chance to be heard
c) Reasonableness:
Consists of rationality and proportionality
o Rationality:
Is there a logical connection between action and purpose?
o Proportionality:
Was there a less restrictive way to achieve the same goal?
Pharmaceutical Manufacturers & Bato Star are
applicable here
o s8: Remedies:
Court can make any just and equitable order, including:
Setting aside the action
Remitting back for re-decision
Substituting its own decision
, 4) Administrative law analysis:
o a) Identify the challenged action
o b) Determine if it qualifies as AA (S1 PAJA)
o c) Is yes: assess whether it is
i) Lawful
ii) Reasonable
iii) Procedurally fair
o d) If no: determine the appropriate remedy (S8 PAJA)
1.1 Sources of Law:
1) Pre-constitutional era CL:
o System based on parliamentary sovereignty and influenced by English Law
o Legacy:
Still reflects features from English and other Commonwealth systems (Aus, Canada, NZ,
India)
CL remains a valuable source but is subject to the CT
2) Interim Constitution (ICT) 1993:
o Significance:
CT supremacy introduced
CL not abolished, but became subordinate to the CT
o s24 ICT:
First entrenched the right to administrative justice
Broadened the scope of reviewable AA
3) Final Constitution (CT):
o 1996 s33:
Right to lawful, reasonable and procedurally fair AA
Right to written reasons if rights are adversely affected
Requires national legislation to:
Provide for review
Impose a state duty to uphold these rights
Promote an efficient administration
Comparison to s24 ICT:
Simpler and clearer language
Mandatory legislation now imposed on Parliament
4) Pre-PAJA: Transitional period 1994-2000:
o s33 not self-sufficient, must be read with:
Schedule 6, Item 23 of CT until PAJA was passed, s33 must be interpreted in line with
S24 ICT
o PAJA only enacted in 2000, courts relied on constitutional principles and CL
o No definition of AA in s24 or s33 courts had to develop this concept
5) Judicial interpretation “AA”:
o Nel v Le Roux:
Judicial action is not AA
Concerned summary sentencing
Finding: Judicial actions are not administrative because:
Already subject to appeal and review
SOP doctrine respected
Not all public power is administrative
,o Fedsure Life Assurance:
Facts: local government passed budget reallocating funds: challenged under admin law
Issue: are municipal budget decision administrative?
Background:
Pre-1994: local governments had delegated powers
Post-1996: local governments have original constitutional powers
Court:
= legislative action
Local councils are elected, act deliberately and are politically accountable not
administrative
[41]-[42]:
By-laws made by the council are legislative in nature
There is no ‘fit’ between council powers and s24
Principle of legality:
Where s33 / PAJA doesn’t apply, all exercises of public power must still be lawful
Key takeaways:
CL remains important, but constitutional supremacy applies
Not all public power = AA
o Legislative and judicial actions are excluded
Principle of legality ensures minimum accountability for all public power
o President RSA v SARFU:
Executive does not = AA
Facts:
President Mandela appointed a commission of inquiry into SARFU
SARFU challenged the decision are reviewable AA
HC asked President to testify about his decision – first time for a sitting president
CC had to decide if = AA
Legal principle:
It is the function not the functionary that matters
[141]: What matters is not so much the functionary as the function. The question is
whether the task itself is administrative or not
3 factor test: Admin v Executive:
Source of power: s84(2)(f) = original constitutional power of President
Nature of power: political in nature more executive
Relation to policy v implementation: closer to policy formation, not legislative
implementation
Court: Not AA
[147]: The appointment of the commission did not = AA within the meaning of s33
o Still subject to review under principle of legality
[148]: The President must act in good faith and must not misconstrue the powers
Key takeaways:
Function > Functionary in determining AA
Executive does NOT = Administrative
Commissions of inquiry = executive power Not reviewable under s33
Still reviewable under legality principle
o Pharmaceutical Manufacturers:
Facts:
President prematurely brought an Act into force without regulations
Court asked: Is the President’s decision reviewable?
CL v CT? Container Logistics:
SCA held that CL and s33 are parallel systems
Litigants could choose either
[44]: Rejected the above: There is only one system of law, it is shaped by the CT.
all law including CL derives it force from the CT
Takeaway: CL is not separate from constitutional law
Nature of power: Legislative v Administrative
Decision to bring Act into force:
o = political not mechanical + closer to legislative than administration
o Core Principles Recap
, No dual system: Common law = part of constitutional order.
Admin ≠ executive/legislative/judicial, but:
All public power is subject to legality:
Must be lawful (Fedsure),
Must be rational (Pharmaceutical),
Must be in good faith (SARFU),
But not necessarily fair or reasonable (unless PAJA applies)
6) PAJA 2000:
o Purpose:
Gives effect to s 33 of the Constitution.
Defines administrative action.
Creates grounds for review:
Lawfulness
Procedural fairness
Reasonableness
Duty to give reasons
o When PAJA applies:
Must challenge directly under PAJA if the action qualifies as administrative.
o When PAJA doesn’t apply:
Use principle of legality (backup review).
From s 1(c): SA = rule of law state.
Applies to all public power.
Requires:
o Lawfulness
o Rationality
Does not require:
o Procedural fairness
o Reasonableness
