Administrative Action & PAJA Overview

Administrative Action & PAJA

• Administrative action pre-Constitution, post-Constitution but before PAJA, and as defined in PAJA
• PAJA and section 33 of the Constitution regulate the right to just administrative action.
• Administrative action is a prerequisite for applying administrative law.

Three Phases of Administrative Action

• Pre-constitutional period
• Constitutional period prior to PAJA's enactment
• Constitutional period subsequent to PAJA's enactment

Pre-Constitutional Period

• Administrative law operated within common-law tradition and parliamentary sovereignty.
• Judicial review power derived from courts' inherent jurisdiction.
• Meaning of administrative action was determined by the extent of court review powers over executive actions, limiting administrative law.

Constitutional Period Prior to PAJA

• The primary source of administrative law was section 24 of the interim Constitution.
• Common law remained a source of administrative law, alongside the Constitution.
• The final Constitution entrenched the right to just administrative action in section 33.
• Section 33 (of the Constitution) didn't immediately operate due to the Constitution’s Schedule 6.
• Section 33 became operational after national legislation for the right to just administrative action was enacted within three years.

From Institutional to Functional - Sarfu Judgment

• The Constitutional Court emphasized a new approach to public power in the Sarfu case.
• The Sarfu case is crucial for interpreting section 33 and applying administrative law generally.
• Administrative action is one aspect of public power exercise.
• Courts must define the scope of 'administrative action'.
• The appointment of a commission by the President, under section 84(2)(f) of the Constitution, may (or may not) qualify as administrative action.

Administrative Action Under PAJA

• PAJA's Section 1 defines administrative action.
• PAJA's definition of administrative action acts as a gatekeeper for legal recourse.
• Parties must prove conduct is considered administrative action as defined.
• An administrator needs only to follow procedural steps set out in PAJA's Act when taking action, if that action is administrative.

Elements of Administrative Action

• Seven elements are identified by the Constitutional Court in Minister of Defence case to prove administrative action.
  • Decision (of an administrative nature),
  • By an organ of state/natural/juridical person
  • Exercising public power/performing public function
  • In terms of legislation/empowering provision,
  • Adversely affects rights,
  • Has direct, external legal effect
  • Does not fall under listed exclusions

Decision of an Administrative Nature

• The decision must have a degree of finality. (in administrative context)
• PAJA applies to the entirety of an administrative process until a final decision.
• Cannot apply the concept of a "decision" piecemeal; it must be examined as an entire process.
• The action cannot be challenged in court before a final decision is reached.

Decision Which Are Administrative in Nature

• Actions fall under public power/administrative character.
• Actions involve applying existing policy to particular factual circumstances. This is distinct from policy creation.

By an Organ of State or a Natural or Juridical Person

• Administrative action can be taken by public or private entities.
• PAJA's functional approach emphasizes the importance of the nature of the action, not necessarily the entity.
• Organizations exercising public powers or performing public functions are part of administrative action's scope.

Exercising a Public Power or Performing a Public Function

• The action's nature is central to determining admin action.
• Focus is on what is done, not who did it. (Functional, not institutional approach).

What is a Public Power or Public Function

• Chirwa's case gives guidance in determining a public function or power.
• Useful factors:
  • Power relationship relating to the public institution,
  • Decision on public interest,
  • Source of power,
  • No single factor is determining; consideration of all factors may point to it.

In Terms of a Constitution, Any Legislation or an Empowering Provision

• Administrative law concerns the granting/exercise of delegated powers.
• Decisions derive their authority from specific constitutions, legislation, or empowering instruments.
  • National Constitution, Provincial Constitution, Legislation etc.

That Adversely Affects Rights

• Administrative action may affect rights under the law. (e.g., BOR Rights)
• Rights under other laws or common law are also influenced by this factor.
• The effect on rights must occur adversely.

That Has a Direct, External Legal Effect

• The decision must be final.
• Circumstances may dictate that action is administrative even if subsequent action is contemplated.
• Acts internal to the administrative body would not qualify,
• Administrative action has a measurable impact in the outside world.

That Does Not Fall Under Any of the Listed Exclusions

• Listing of nine exclusions for administrative action from PAJA’s context.
• The actions do not need to be reviewed under PAJA guidelines.

The Exclusions

• These are executive functions at various levels (national, provincial, municipal).
• This includes legislative work and judicial officer work.
• The issuance of prosecution orders.
• Decision making for Judicial Officer appointments.
• Decisions aligning with PAJA, and section 4(1) regarding public participation.

This quiz explores the evolution of administrative action in South Africa, including its status pre- and post-constitution, as well as the impact of the PAJA legislation. Key phases in administrative action, such as the pre-constitutional period and the constitutional framework leading to PAJA, are discussed to highlight the legal foundations of administrative law.