Learning Unit 2

Administrative Action
References
• Prescribed text
• Jonathan Klaaren and Glenn Penfold, Just Administrative Action.
Overview
• Administrative action
• concept which finds its meaning not from section 33 of
the Constitution.
• Constitutional Court, have endeavoured to define.
• Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• provides a definition for administrative action.
LU 2
1. Role administrative-law reviews played in the pre-
democratic era.
2. Decisions of an executive and administrative nature.
Factors laid out in the SARFU case.
3. Decisions of a legislative and administrative nature.
4. Decisions of a judicial and administrative nature.
LU 2
• 5. Action taken by a public entity in a private setting.
• 6. The exercise of public powers by bodies not part of public
administration.
• 7. The meaning of administrative action.
• 8. The seven elements contained in the definition of administrative
action.
• 9. The negative effects of having a narrow definition of administrative
action.
Learning Unit 2: Theme Breakdown
• 6 Sessions
• Theme 1: The pre-democratic era.
• LO1: Discuss the meaning of ‘administrative action’ prior
to the adoption of the Constitution, 1996.
• PM: Chapter 3
Theme 1: The pre-democratic era.
LO1: Discuss the meaning of ‘administrative action’ prior to
the adoption of the Constitution, 1996.

• Under Common Law governmental action classified for Judicial

review.
• Emphasis not on administrative action but on the identity of
institution performing function.
• They were categorized as:
• Pure administrative action
• Judicial or quasi –judicial administrative action.
LO 1
• Pure administrative : review
• Legislative administrative action: reasonableness review.
• Quasi-judicial administrative action: subject to principles
of Natural Justice.
Theme 2: Administrative Action
under the pre-PAJA Constitutional
period
• PM: Chapters 1 (paras 1.3.2 and 1.3.4) and 3 (paras 3.2, 3.3 and 3.6)
• President of the Republic of SA v SARFU 2000 (1) SA 1 (CC)
• Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council 1999 (1) SA 374 (CC)
• Nel v Le Roux NO 1996 (3) SA 562 (CC)
• Permanent Secretary of the Department of Education of the Eastern Cape and
Another v Ed-U-College (PE) 2001 (2) SA 1 (CC).
• AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007
(1) SA 343 (CC)
Introduction
• 33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.
• (2) Everyone whose rights have been adversely affected by administrative action has the right to be
• given written reasons.
• (3) National legislation must be enacted to give effect to these rights, and must -
• (a) provide for the review of administrative action by a court or, where appropriate, an
• independent and impartial tribunal;
• (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
• (c) promote an efficient administration.
Intro
• Just administrative action is a human right and subject to
S 36
• Administrative action not defined in Constitution.
• Refers to “just” meaning lawfulness, reasonableness,
and procedural fairness of the action.
• Must be an administrative action for S33 or PAJA to apply.
LO2: Distinguish between decisions of an
executive and administrative nature with
reference to relevant case law.
• Introduction: p70
• Where is executive power derived from?
• How is this executive power exercised?
• What is the primary function of the Executive?
• P 12
LO2
• Important to distinguish between policy branch and
administration.
• Discuss the following cases:
• 1. Permanent Secretary case: p71
• 2. Pharmaceutical case: p71
• 3. Gov of Republic of SA: P72
• 4.Earthlife case: p 72
1.3.4
• How far does the Judiciary power extend?
• Separation of powers and notion of deference.
• Whether decision reviewable not always clear.
• In SA Common Law before 1994:
• Courts used doctrine of classification of functions.
One of 5 categories:
1. Of a law making nature
2. Judicial nature
3. Quasi judicial nature
4. Purely administrative nature
5. Ministerial nature
Purpose of categories
• Administrative accountability
• In modern SA Law a distinction is made between
executive and administrative action.
LO3: Discuss the factors laid out in the
SARFU case and be able to apply them in a
given scenario.
• Institutional to Functional
• Dealt with the interpretation of S 33 and operation of
administrative law.
• Administrative action an incidence of exercise of
administrative power.
• What was the legal issue in SARFU’s case? p76
Sarfu case
• This distinction between administrative and executive action took centre stage in
the Constitutional Court’s decision in SARFU 1.
• This case involved a review of President Mandela’s decision to institute a
commission of inquiry into South African rugby in terms of FC s 84(2)(f) and to
declare the Commissions Act6 applicable to the inquiry.
• During the course of its judgment, the SARFU 1 Court pointed out that a
determination as to whether conduct constitutes administrative action does not
equate with the enquiry as to whether the action is performed by a member of the
executive arm of government. In an oft-quoted passage, the court remarked that:(
Jonathan Klaaren, Glenn Penfold)
LO3
• “What matters is not so much the functionary as the function”
• What factors determine whether an action is administrative?p76
• Closer to policy executive closer to implementation administrative.
• Distinction between executive and administrative action:
• Distinction between the implementation of legislation, which is
administrative action, and the formulation of policy, which is not.
LO4: Distinguish between decisions of a
legislative and administrative nature with
reference to relevant case law.
• P72: Discuss
1.Fedsure case
2. EFF case
The distinction between legislative
and administrative action
• In Fedsure, the Constitutional Court was called on to review a
municipal council’s decision to pass resolutions adopting a budget,
imposing rates and levies, and paying subsidies.
• In examining whether the resolutions amounted to administrative
action, the Constitutional Court emphasised the changed
constitutional landscape in which administrative review operated
following the advent of the Interim Constitution. ( Jonathan Klaaren
and G Penfold,Just Administrative action. )
Ed-U-College case
• In Ed-U-College, the Constitutional Court held that a specific allocation by the MEC for
Education in the Eastern Cape of funds for independent schools out of the total budgetary
allocation for education in the province, which was derived from the explanatory
memorandum to the relevant Appropriation Act, did not constitute administrative action.
• The Ed-U-College Court emphasised the legislative nature of the explanatory memorandum.
• It stated that the estimate expenditures set out in the memorandum are debated in the
legislature itself and are the basis on which votes on the Bill are decided.
• This memorandum therefore ‘play[s] an important role in the legislative process which leads
to the approval of an appropriation Bill’. . ( Jonathan Klaaren and G Penfold,Just
Administrative action. )
Pharmaceutical Manufacturers case.
• The Court concluded that, having regard to the nature and
source of the power, and particularly the fact that it required a
‘political judgment as to when the legislation should be
brought into force, a decision that is necessarily antecedent to
the implementation of the legislation’, the decision to bring the
law into operation did not constitute administrative action as it
was ‘closer to the legislative process than the administrative
process’
LO5: Distinguish between decisions of a
judicial and administrative nature with
reference to relevant case law.
• P73
1. Le Roux case
2. SARFU
LO6: Distinguish between when action taken
by a public entity in a private- law setting is an
exercise of private and/or public power.
• P 8 1.3.2
• Historically in 1900 goods and services privately owned.
• Today government provides most of the services.
• Government vs privatization???? Debate
Public vs Private
• Administrative action is confined to the exercise of public power.
• The difficulty is that the line between public and private power is a
very difficult one to draw.
• The question as to the classification of contractual powers (or rights)
exercised by public entities has recently become particularly
significant in light of the increased practice of public entities
engaging in outsourcing, corporatisation, privatisation and generally
entering into contracts with third parties.
 Cape Metropolitan Council v Metro
Inspection Services (Western Cape) CC &
Others.
• The Supreme Court of Appeal unanimously held that the
cancellation of the contract did not amount to
administrative action. According to the SCA, the
municipal council was exercising a contractual power
derived from the agreement between the parties.
LO7: Analyse the exercise of public powers
by bodies not part of the public
administration.
• P 80
• Functional approach
• What is the nature of the function?
• Constitution: “any other functionary or institution exercising a public power or
performing a public function.
• Non-public entities: recognized as “organs of state”
• PAJA: natural or juristic persons can perform administrative actions under PAJA.
• P 87 EXAMPLE.
• AAA Investment case:
LO8: Distinguish between institutional and
functional approaches to public power with
reference to relevant case law.
• SARFU Judgement discuss.
• AAA Investments discuss
Theme 3: Administrative action in
terms of PAJA
• PM: Chapter 3 (paras 3.7 and 3.8)
LO9: Define extensively the meaning
of administrative action in terms of
PAJA.
• PAJA S 1(i)
• Definition in PAJA serves a gate keeping function.
• Definition complex and narrow with certain limitations.
• such as the requirements of a ‘decision’,‘adversely affects the
rights of any person’ and ‘direct, external legal effect.
• PAJA more restrictive view of administrative action.
Definition
• Section 1 of PAJA sets out the definition of administrative action for purposes of the Act.

• This definition, when read with the definition of a ‘decision’, essentially

• comprises following elements:

• (1) a decision of an administrative nature;

• (2) made in terms of an empowering provision (or the Final Constitution, a provincial
• constitution or legislation);

• (3) not specifically excluded from the definition;

• (4) made by an organ of state or by a private person exercising a public power or performing a public function;
• (5) that adversely affects rights; and

• (6) that has a direct external legal effect.

Read counter point
• Clicks case: P 80
• DISCUSS
LO10: Examine the seven elements
contained within the definition of
administrative action in PAJA.
1. A decision of an administrative nature
2. By an organ of state or natural or juristic person
3. Exercising a public power or performing a public function
4. Ito any legislation or an empowering provision
5. That adversely affects rights,
6. That has a direct,external legal effect and
7. That does not fall under any of the listed exclusions.
LO 10
• PAGES 82-99
• Discussion
LO11: Discuss the negative effects of having
a narrow definition of administrative
action in terms of PAJA.
• PAJA adopts a more restrictive definition of ‘administrative action’, the
constitutional right could be used to challenge PAJA as failing to give effect
to the constitutional right.
• P 79/80
• P 100 : 3.8