Wednesday, April 13, 2016




Stes de Necker

Next to South Africa's appauling health services, its “dysfunctional” educational system is perhaps the best example of how the South African Government abuses its own people.

In an article published in the Mail and Guardian, Ernst Roets of AfriForum said: “It is no secret that black children suffer more when it comes to education, because the most dysfunctional schools are those in the townships,” adding: “[The basic education minister] has admitted that about 80% of South African schools are dysfunctional.”

But is it true that only a small percentage of South African schools can be considered “functional”?

Roets’s claim was based on an Economist article from 2012 which stated that “the education minister herself admits that 80% of schools are still ‘dysfunctional’”. The article does not say when or where the minister was reported to have made the claim.

However, a year later basic education minister Angie Motshekga did tell a parliamentary media briefing that “the diagnostic test of the National Development Plan indicated that 80% of the schools were dysfunctional”.

This figure was also included in a 2012 article titled Education in SA: A tale of two systems by Nicholas Spaull, an education researcher in the economics department at Stellenbosch University. 

The article states that “roughly 75%” of pupils attended dysfunctional schools.

The Department of Basic Education has previously gauged the attendance levels of staff and learners to measure “functionality” of schools.

According to the department, in 2011/‘12 schools in all provinces had “good systems in place to manage class attendance by teachers with the exception of Eastern Cape and North West where the systems were unacceptable”.

According to basic education spokesman Elijah Mhlanga, the department no longer classifies schools according to whether they are functional or dysfunctional. “We don’t do this kind of categorisation because we believe it is destructive and demoralising to schools,”

According to Mhlanga, the department profiles schools based on their performance. High schools were assessed based on their matric examination results and primary schools were evaluated using their annual national assessment results.

“We give special attention to those performing below 70% at high school level… In primary schools if 50% of learners achieve below 40% we declare it as poor performing and we then put in place measures to support the schools,” 

Education researcher Spaull has conducted further research in this area since 2012. 

He analysed the South African data from the most comprehensive measurement of educational performance across a number of African countries, the Southern and Eastern African Consortium for Monitoring Educational Quality (SACMEQ).

This data was collected during the last quarter of 2007 from 9 083 grade six students and 1 488 grade six teachers in nearly 400 schools across South Africa. 

Schools were split into four wealth groups, with group 1 being the poorest 25% of schools. To determine the socioeconomic status of schools, students were asked “possession questions” – whether items such as a daily newspaper, bed or piped water were present in the place they stayed at during the school week.

The study found that pupils in South Africa’s wealthiest 25% of schools outperform students in the remaining 75% of schools. Spaull wrote that there are “two types of school systems in South Africa, largely split along historical-school-system and socioeconomic lines”.

According to Spaull’s research, only 4.1% of grade 6 pupils in South Africa’s wealthiest 25% of schools can be classified as functionally illiterate. A pupil is considered functionally illiterate if they cannot read a short and simple text and extract meaning.

In comparison, the percentage of pupils that are functionally illiterate ranges from 25.6% to 43.3% in the remaining 75% of schools.

With regards to numeracy, only 8.4% of grade 6 pupils in South Africa’s wealthiest 25% of schools are considered functionally innumerate. A pupil is considered functionally innumerate if they can’t translate graphical information into fractions or interpret common everyday units of measurement.

In comparison, the percentage of pupils that are functionally innumerate ranges from 44.8% to 56.9% in the remaining 75% of schools.

But the department is dismissive of Spaull’s research. According to Mhlanga “We do not believe that statistic.”

High schools show similar trends. Research conducted on grade 9 pupils in South Africa showed similar results to the primary school data. Trends in International Mathematics and Science Study (TIMSS) is a cross-national study that measures mathematics and science achievement.

The study tested 11 969 pupils in 285 South African schools in 2010 and 2011. Of the 48 countries that participated in TIMSS, South Africa came 47th for mathematics and 48th for science.

South Africa’s Human Sciences Research Council separated participating schools into 5 groups, ranging from 1 (poorest) to 5 (least poor). Their analysis showed that the least poor 20% of schools significantly outperformed the remaining 80% of schools in both science and maths.

TIMSS scores were classified as low, intermediate, high and advanced. In the wealthiest 20% of schools 43.5% of students achieved an intermediate score for science. This means that they had basic knowledge and understanding of practical situations in science.

In comparison, the percentage of pupils that achieved this score ranged from only 1.6% to 7.6% in the remaining 80% of schools.

With regards to maths, 36.3% of students in the wealthiest 20% of schools achieved an intermediate score. This means that they had the skills to apply basic mathematical knowledge in straightforward situations.

In comparison, the percentage of pupils that achieved this score ranged from only 0.6% to 4.3% in the remaining 80% of schools.

Mhlanga said that the TIMSS findings were outdated: “The challenge with the data from 2011 is that it reflected what happened years before that. A lot of work has been done in districts and provinces to raise the levels of school and learner performance. The department’s interventions included setting up a ministerial task team for mathematics, science and technology.”   

The next round of TIMSS results is expected to be published in December 2016.

The claim that 80% of State Schools in South Africa are dysfunctional is supported by the most recent available data. Results from international, standardised tests show that between 75% and 80% of South African schools are not able to impart the necessary skills to students.

Grade 6 students in the poorest 75% of schools performed significantly worse in literacy and numeracy than grade 6 students in the wealthiest 25% of schools. The trend is similar for grade 9 students, where students in the poorest 80% of schools achieved substantially lower results in maths and science compared to students in the wealthiest 20% of schools.

As can be expected, the Department of Basic Education has rejected the claim that 80% of South Africa’s schools are dysfunctional.

While the test data is between five and eight years old it is the most recently published standardised testing available. New data is expected to be published over the next two years and will show whether the department of basic education’s interventions are paying off as they claim.

Tuesday, April 12, 2016




Stes de Necker

Sharia law is the law of Islam.

The Sharia (also spelled Shariah or Shari'a) law is cast from the actions and words of Muhammad, which are called "Sunnah," and the Quran, which he authored.

As a legal system, the Sharia law covers a very wide range of topics. While other legal codes deal primarily with public behaviour, Sharia law covers public behaviour, private behaviour and private beliefs.  

Of all legal systems in the world today, Islam's Sharia law is the most intrusive and draconic, especially against women.

According to the Sharia law:

•  Theft is punishable by amputation of the right hand (above).
•  Criticizing or denying any part of the Quran is punishable by death.
•  Criticizing or denying Muhammad is a prophet is punishable by death.
•  Criticizing or denying Allah, the moon god of Islam is punishable by death.
•  A Muslim who becomes a non-Muslim is punishable by death.
•  A non-Muslim who leads a Muslim away from Islam is punishable by death.
•  A non-Muslim man who marries a Muslim woman is punishable by death.
•  A man can marry an infant girl and consummate the marriage when she is 9 years old.
•  Girls' clitoris should be cut (per Muhammad's words in Book 41, Kitab Al-Adab, Hadith 5251).
•  A woman can have 1 husband, but a man can have up to 4 wives; Muhammad can have more.
•  A man can unilaterally divorce his wife but a woman needs her husband's consent to divorce.
•  A man can beat his wife for insubordination.
•  Testimonies of four male witnesses are required to prove rape against a woman.
•  A woman who has been raped cannot testify in court against her rapist(s).
•  A woman's testimony in court, allowed only in property cases, carries half the weight of a man's.
•  A female heir inherits half of what a male heir inherits.
•  A woman cannot drive a car, as it leads to fitnah (upheaval).
•  A woman cannot speak alone to a man who is not her husband or relative.
•  Meat to be eaten must come from animals that have been sacrificed to Allah - i.e., be Halal.
•  Muslims should engage in Taqiyya and lie to non-Muslims to advance Islam.
•  The list goes on ......

Sharia law is applied in many countries internationally, for instance: 

•  Afghanistan (89%)
•  Algeria
•  Bahrain
•  Bangladesh (82%)
•  Brunei
•  Comoros
•  Djibouti (82%)
•  Egypt (74%)
•  Eritrea
•  Ethiopia
•  Gambia
•  Ghana
•  India
•  Indonesia (72%)
•  Iran
•  Iraq (91%)
•  Jordan (71%)
•  Kenya
•  Kuwait
•  Libya
•  Lebanon
•  Malaysia (86%)
•  Maldives
•  Mauritania
•  Morocco (83%)
•  Nigeria
•  Oman
•  Pakistan (84%)
•  Palestinian territories (Gaza strip & the West Bank - 89%)
•  Qatar
•  Saudi Arabia
•  Somalia
•  Sudan
•  Sri Lanka
•  Syria
•  Tanzania
•  Thailand (77%)
•  Uganda
•  United Arab Emirates (UAE)
•  Yemen

The number of countries that adopt (elements of) the Sharia law continues to grow around the world, as does the depth of its penetration in the countries that already use it.

The spread of Islam is not a new phenomenon.

Ever since Muhammad's troops spread out from Mecca in the 7th century, Islam has been expanding globally. But the spread of Islam in Western democracies is a new trend and one that is gaining momentum.

This spread of Islam in Western nations is led by the Muslim Brotherhood and other international Islamic groups that endeavour to maximize the spread of Sharia law and Islam in the targeted nations while minimizing detection and push-back.

This is achieved in five phases:

Phase 1: Arrival

When the first Muslims arrive in a Western democracy, they keep a low profile and make few if any demands on the host nation. Many quietly work as students, business owners, professors, doctors and other professionals, making good first impressions and gaining vocational respect.

Phase 2: Recognition

When a sufficient number of Muslims gather, they request recognition of the Sharia law being applied within their own community. To pre-empt resistance and suspicions, they publicly condemn "radical" Islam and even seek well-publicized inter-faith dialogue and gatherings.

They position Islam as a religion of peace whose Sharia law is not a threat to the host nation, especially since it would never be applied outside the Muslim community. Often, they are supported by the host nation's un-informed leaders who are eager to be seen as "progressive".

Phase 3: Penetration

When Muslims gain critical mass in a few cities, they begin to penetrate the host society. They create umbrella organizations that inflate their reach and unity, and use them to lobby the government, support (pro-)Muslim political candidates, conduct public relations campaigns and file lawsuits against alleged islamophobia, pressure public schools with Muslim students to hold prayers towards Mecca, endow Islamic studies departments at universities and place imams as 'chaplains' in armed forces and prison units.

Phase 4: Confrontation

When Muslims become a significant minority in the host country, they demand incorporating into its legal system elements of the Sharia law. Often, this demand is made while "rogue" elements from the Muslim community threaten or engage in violence (e.g., Europe and UK).

Phase 5: Imposition

When the Muslim population becomes the majority and/or Islam gains control of a nation (e.g., Taliban in Afghanistan), Sharia law is imposed on the host society, which is then locked down against non-Islamic influences, including Christianity.

The ideal Islamic state is Saudi Arabia, where Sharia law is the only law of the land and enforced without mercy.

Monday, April 11, 2016

ACTS PERFORMED BY THE STATE - South African Administrative Law


South African Administrative Law

Stes de Necker

South African administrative law is the branch of public law in this country which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or put differently, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense."

According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

Weichers defines administrative law as a body of legal rules governing the administration, organisation, powers and functions of administrative authorities.

For Baxter, it is a set of common-law principles which promote the effective use of administrative power, protect against misuse, preserve a balance of fairness and maintain the public interest.

Chaskalson describes it as the interface between the bureaucratic state and its subjects.

From this it may be seen that commentators agree that administrative law is concerned with attaining administrative efficiency, and with ensuring that this power is tightly controlled, so that no abuse may occur.

In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa, it was held that administrative law forms the core of public law. It overlaps with constitutional law because both deal with organs of state and their relationship to individuals.

Administrative law differs from constitutional law, however, in its emphasis on a particular branch of government (the public administration) and on a particular activity of the state (administrative action).

In President of the RSA v SARFU, the Constitutional Court held that the administration is that part of government which is primarily concerned with the implementation of legislation.

In summary, then, administrative law regulates the activities of bodies that exercise public powers or perform public functions. It empowers administrative officials so that they may implement policies or programs, and limits the exercise of power by requiring all administrative action meet the minimum requirements of lawfulness, reasonableness and fairness.

Administrative officials derive their authority or jurisdiction from a legal instrument or rule, and may only do what a law authorises them to so. This is known as the principle of legality, which requires that administrative authorities not only refrain from breaking the law, but that all their content comply with the Constitution and particularly the Bill of Rights.

The sources of administrative law are, in order of importance,

 Ø              the Constitution;
Ø              legislation; and
Ø              the common law.


The Constitution is the supreme law of the land. Any law or act which is inconsistent with it has no force or effect.

The effect of this provision is that laws and administrative acts must comply with the Constitution. The Constitution is binding on the executive branch of government in every sphere of administration.
The importance of the Constitution as a source of administrative law was best articulated in Pharmaceutical Manufacturers, where Chaskalson P held that the control of public power by the courts through judicial review is a constitutional matter.

The common-law principles that had been applied to control powers prior to 1994 have now been subsumed under the Constitution. As a source of administrative law, the Constitution establishes a variety of agencies and administrative structures to control the exercise of public power.

In Bato Star Fishing v Minister of Environmental Affairs, O'Regan J held that there are not two systems of law regulating administrative action—the common law and the Constitution—but only one system grounded in the Constitution.

The courts' power to review administrative action no longer flows directly from the common law, but rather from the constitutionally mandated PAJA (Promotion of Administrative Justice Act, 2000) and from the Constitution itself.

The ground norm of administrative law is now to be found in the first place not in the doctrine of ultra vires, nor in that of parliamentary sovereignty, nor in the common law itself, but rather in the principles of the Constitution.

The common law informs the provisions of PAJA (Promotion of Administrative Justice Act, 2000) and the Constitution, and derives its force from the latter. The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of PAJA and the Constitution.


           Legislation includes
  Acts of Parliament;
  Provincial legislation;
  by-laws; and
   regulations, etc.

All these statutes may confer authority to take action and make decisions. For a statute to be valid, it must conform to constitutional requirements.

Provincial legislation

Section 125(2)(b) of the Constitution states that the Premier of a province exercises its executive authority, together with the other members of the Executive Council, by implementing all national legislation within the functional areas listed in Schedules 4 or 5 of the Constitution, except where the Constitution or an Act of Parliament provides otherwise.

Local-government legislation

Section 151 of the Constitution states that the executive and legislative authority of a municipality is vested in its municipal council. The municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.

In Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council, the court found that the imposition of the rates and levies and the payment of the subsidies did not constitute "administrative action" under section 24 of the Interim Constitution.

By-laws cannot fall within the definition of administrative action in PAJA; therefore they are not subject to the principles of just administrative action.

Subordinate legislation

Subordinate legislative bodies, such as the President, when promulgating proclamations, and ministers, when issuing regulations, do not have original legislative competence and must act within the confines of the enabling legislation.

In Minister of Health v New Clicks, Chaskalson stated that the making of delegated legislation by a member of the executive is an essential part of public administration, in that it gives effect to legislative policies. Further, it provides the detailed infrastructure whereby this can take place.

PAJA (Promotion of Administrative Justice Act, 2000)

In Sasol Oil v Metcalfe, Willis held that "PAJA cannot be regarded as ordinary legislation," because it seeks to give effect to fundamental rights contained in the Bill of Rights.

Willis described the Act further as "triumphal legislation."

Common law

Common law as a source of authority was mainly limited to the prerogative powers. A prerogative is a discretionary power given to someone by virtue of the fact that he holds a particular office.

 In President of RSA v Hugo, it was held that the common-law prerogative powers no longer exist in South African law as an independent source of power.

The reason for this is that the executive may not have inherent common-law powers which go beyond the ambit of the Constitution. The common law continues to influence administrative law until such a time as it is set aside on grounds of constitutional inconsistency.

Some of the administrative-law principles which have their origin in the common law are now written down in the Constitution or in legislation. The common-law principle of reasonableness, for example, is contained in the Constitution and PAJA.

In Marais v Democratic Alliance, the court found that common laws of procedural fairness and natural justice were applicable to a dispute between a mayor and a political party, even though the dispute itself did not fall under the scope of PAJA.

In contrast, however, it was also held that PAJA must first be looked to as the source of law to resolve a dispute. In Pharmaceutical Manufacturers, the court held that the principles that have previously provided the grounds for judicial review of public power have been subsumed under the Constitution; in so far as they might continue to be relevant to judicial review, they gain their force from the Constitution.

International and foreign law

The Constitution obliges the courts to consider international human rights. Administrators must recognise international documents which deal with international human rights whenever they are relevant to the administrator's functions, and must act in accordance with these international documents.

The courts are not confined to instruments that are binding on South Africa. In S v Makwanyane, the Constitutional Court held that both binding and non-binding international law may be used as a tool of interpretation.

Under foreign law, section 39(1) of the Constitution provides that a court may consider foreign law. Courts are however not compelled to consider foreign law.



Prior to 1994, South African administrative law was underdeveloped. The reason for this was that Parliament's surrender of more and more power to the executive. The law was not used to check or to structure these powers.

Under this system, the courts could not question the validity of Acts of Parliament. In R v Mchlery, Lord De Villiers held that the courts had no right to enquire into or as to whether the legislature had acted wisely or unwisely for the benefit of the public or individuals.

The procedure for the review of administrative action under rule 53 of Uniform Rules of Court lacked clearly defined guidelines for how administrative action could be assessed. The principle of parliamentary sovereignty implied ministerial responsibility for administrative action. Ministerial responsibility was complementary to judicial review, in that judicial review is concerned with the legality of administrative action; and ministerial responsibility is concerned with merits of administrative action.

The efficiency of ministerial responsibility was reduced by the imbalance of party representation in the South African Parliament.

South African administrative law is similar to its English equivalent, especially in relation to judicial review of administrative action. For this reason, British cases are often cited and relied upon by South African courts.

There are fundamental differences in substance, however. The conditions, composition and politics of South African society were and are different.

Under apartheid, Parliament had the power to enact whatever it wished (however unreasonable and however unacceptable). The Parliament was not elected by universal franchise. The largest section of the population was excluded from representation on grounds of race. Laws affecting black people conferred extensive powers upon the administration. South Africa was isolated from the rest of the world, so its public law became insular.

In Lunt v University of Cape Town, regarding a refusal to allow a post-graduate into medical school, the court applied the legitimate-expectation doctrine in a contractual setting.


As early as the late 1980s, there were a number of reform initiatives aimed at reforming the undesirable state of administrative law in South Africa. Most of the reforms were court-driven and therefore known as judge-made reforms. There were limitations, however, which were embedded in the judicial process. Judges have no control over cases which come before them, so it was difficult to effect a programmatic reform.

A significant step was the decision in Attorney General, Eastern Cape v Bloom.

The President had enacted a set of regulations which, for example, excluded a detainee from having a fair trial. This implied that the President could exclude natural justice. The court held that this was a dire mistake, and that the President could not exclude procedural fairness. This decision clarifies the underlying principle which was incorrectly interpreted in the case of Omar v Minister of Law and Order, in which it was held that the State President, when enacting emergency regulations in terms of the Public Safety Act, could excuse the right to a hearing as well as the right of detainees to legal representatives.

Another reform was the recognition of the doctrine of legitimate expectation – this came as a result of landmark case of Transvaal v Traub, which extended the applicability of the right to be heard to cases which did not necessarily affect one's liberty, property or existing rights.

The courts also recognised unreasonableness as a ground of judicial review, which was expressed in Jacobs v Waks and reaffirmed in JSE v Witwatersrand Nigel Limited, where it was held that it is the function of the court to determine what was and what was not relevant to the exercise of discretionary administrative power.

There were also sporadic initiatives taken by the government, but these were limited, because there was no incentive for those in power to change administrative law in any meaningful way. The South African Law Review, however, published reports in 1986 and 1992 which included draft legislation to codify judicial review.

In SA Roads Board v Johannesburg City Council, the rigid classification of functions as either administrative or legislative was rejected; instead a distinction must be drawn between statutory powers which equally affect the members of a community at large; those powers which have a general impact and are calculated to cause particular prejudice to an individual or a particular group of individuals.

These reforms cleared the way for a new phase of administrative law reform, rooted on the principles of democratic rule and constitutional supremacy.


Before 1994, South Africa had embraced the doctrine of parliamentary sovereignty. Now, however, the Constitution dictates that all exercises of public power be rational, justifiable and reasonable. The Interim Constitution provided a bridge from an authoritarian past to a democratic future.

Section 24 of the Interim Constitution provided that every person shall have the right to lawful administrative action where any of his or her rights or interests is affected or threatened; procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened; be furnished with reasons in writing for administrative action which affects any of his or her rights or interests, unless the reasons for such action have been made public; and administrative action which is justifiable in relation to the reasons given for it, where any of his or her rights is affected or threatened.

Section 33 of the final Constitution provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair; that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons; and that national legislation must be enacted to give effect to these rights, and must provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; impose a duty on the state to give effect to the rights above; and promote an efficient administration.


Administrators must obey the law and must be authorised by the law for the decisions they make. This is the same as the principle of legality; it is the authority of an administrator to act. The administrator must obey the law, whether general or specific, and must act within his delegated powers.

Affordable Medicines Trust v Minister of Health concerned a challenge to the validity of a licensing scheme introduced by the government. The applicants sought an order declaring the invalidity of certain sections of the Medicines and Related Substances Act which authorised the Director-General of Health to issue licences to dispense medicines to health practitioners, which could result in wide, unlimited and uncircumscribed arbitrary legislative powers. It was submitted that this was a breach of the principle of legality. The challenge raised the question of whether it is permissible for parliament to leave it to the Director-General to prescribe the conditions on which a licence may be issued.

It was held that there is nothing preventing Parliament from delegating subordinate regulatory authority to other bodies, nor is there anything that prevents Parliament from conferring upon the Director-General the discretion to determine the conditions. The delegation must not be so broad or vague, however, that the authority to whom the power is delegated is unable to determine the nature and the scope of the powers conferred, as this would lead to arbitrary exercise of delegated powers.

On the principle of legality, the court held that constitutional democracy is founded on the values of the supremacy of the Constitution and the rule of law; any law or conduct inconsistent with it is invalid. The exercise of public power must therefore comply with the Constitution, which is the supreme law, and with the doctrine of legality, which is part of that law.

The Constitution entrenches the principle of legality and provides the foundation for the control of public power.

In exercising the power to make regulations, the Minister has to comply with the Constitution and the empowering provision. If he exceeds the powers conferred by the empowering provisions, there is a breach of the doctrine of legality.

In Nala Local Municipality v Lejweleputswa District Municipality, the legality of a meeting at which a decision to investigate alleged irregularities of the applicants was called into question. It was held that, in line with the principle of legality embodied in the Constitution and built into PAJA, administrative action not authorised by an empowering provision is unlawful and invalid, and that a person prejudiced by it may have it reviewed and set aside. It was held that the meeting did not comply with the requirements of the standard rules and orders, and therefore that it was irregularly convened and was therefore invalid.

In Platinum Asset Management v Financial Services Board, the argument was raised by Platinum Asset Management that an authorisation of an inspection of the applicant's business by the registrar in terms of the Inspection of Financial Institutions Act was "overboard, undefined and unspecified," and therefore in contravention of the principle of the rule of law and the doctrine of legality. The applicants relied on case law to the effect that the absence of clear parameters in the letter of appointment renders the appointment overboard and inconsistent with the rule of law entrenched in section 1 of the Constitution. Because of the circumstances of the case, however, it was held that the applicants had no basis for reliance on section 1.

In Mgoqi v City of Cape Town, Mgoqi acted as the municipal manager of the City of Cape Town in terms of contract of employment between him and the city council. The former mayor of the city altered the contract and extended the period for which it ran. When a new mayor was elected, there was a meeting at which the extended contract was reviewed and revoked. The first application concerned the inconsistency of this with the Constitution and therefore its unlawfulness and invalidity. The second application, brought by the city of Cape Town, was for the review and setting aside of the first Mayor's decision to extend the contract of employment.

In terms of the second application, the court dealt with the matter on the basis of the doctrine of legality. It was held that the first Mayor did not have the power to make his decision. 

This was argued on three grounds by the City:

  1. The statutory framework does not allow the delegation of power to extend the municipal manager's contract to the mayor, and the former mayor's unilateral exercise of power could never have been lawful.
  2. The city's own system of delegation, like the statutory framework, does not allow the delegation of power to appoint a municipal manager.
  3. Even if the municipal system of delegation did allow the delegation of the power to the mayor, it was not properly done, as there was a requirement for the council to be in recess at the time that the former mayor purportedly exercised her recess powers. 

Furthermore, there was no consultation. In terms of empowering provisions, therefore, the former mayor failed to act in terms of the requirements laid out in the relevant sections.

The court held on all three grounds that the former mayor's decision to extend the contract of employment was fatally flawed, unlawful and invalid.

In Van Zyl v Government of RSA, the applicants sought the review and the setting aside of a decision by the government (the decision not to engage in diplomatic relations with the government of Lesotho), in order to protect the applicant's property rights and interests in Lesotho.

An example of delegation may be found in section 7 of the Refugees Act, in terms of which the Minister of Home Affairs may delegate any power granted to or duty imposed on him by the Act to an officer in the Department of Home Affairs. 

To be lawful, a delegation of a power or a duty by the Minister has three requirements:

      1. The Minister (no one else) must take the decision to delegate a power or duty.
2. The person to whom the power or duty is delegated must be an officer in the Department of Home Affairs.
3. The power or duty delegated must be one provided for and conferred on the Minister in the Refugees Act.

If any of these requirements are not met, the delegation will be unlawful. In addition, any action taken by the officer concerned who is not properly authorised is unlawful.


The Interim Constitution, in section 24, provides that every person has the right to administrative action which justifiable. The Constitution, in section 33, states that everyone has the right to administrative action which is lawful, reasonable and procedurally fair.

The content of reasonableness remains unclear, but it was held in the case of Bato Star Fishing that what will constitute a reasonable decision will depend on the circumstances of each case.
Factors include
  • ·         the nature of the decision;
  • ·         the identity and expertise of the decision-maker;
  • ·         the range of factors relevant to the decision;
  • ·         the reasons given for the decision;
  • ·         the nature of competing interests; and
  • ·         the impact of the decision.

It was held further, in the case of Rowan v Williams, that a decision must be capable of objective substantiation. In order to prove justifiability in relation to the reasons given for it, it must be objectively tested against the three requirements of suitability, necessity and proportionality. Gross unreasonableness is no longer a requirement for review. The constitutional test embodies the requirement for proportionality between the means and the end.
In short reasonableness requires that:
  • ·         the information available to an administrator support the decision made;
  • ·         the decision be supported by sound reasons;
  • ·         the decision make logical sense in relation to the available information;
  • ·         the empowering provision and other relevant provisions be correctly understood and        applied;
  • ·         the adverse effect of the decision be proportionate to the objective sought to be achieved; and
  • ·         there not be a less restrictive means to achieve the purpose of the decision.

Procedural fairness

Section 33(1) of the Constitution provides for a right to administrative action that is procedurally fair. 

The question is this: How to determine the content of the right? 

There are three legal sources:
Ø  the provisions of PAJA;
Ø  the provisions of the common law; and
Ø  the interpretation provided by judicial decisions (under the Interim Constitution and the final Constitution).

The common law embodies certain principles of natural justice, including audi alteram partem (or "hear the other side") and nemo iudexin sua causa (or "no-one may be a judge in his own cause").

Requirements for the opportunity to be heard are as follows:

  • ·         that there be proper notice of the intended action;
  • ·         that there be reasonable and timely notice;
  • ·         that there be personal appearance;
  • ·         that there be legal representation;
  • ·         that there be evidence and/or cross-examination;
  • ·         that there be a public hearing; and
  • ·         that the other side be properly informed of the considerations which count against him.

Section 3(1) of PAJA provides that administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

Section 33 of the Constitution is of paramount importance.

The operation of section 33 remained suspended until legislation was enacted in the form of PAJA, which rendered section 33 binding and enforceable. Section 33 brought about far-reaching changes to administrative law. Section 33 aims to cause administrative decision-making to be open, transparent and rational, to provide a safeguard against capriciousness and autocratic tendencies, and promote administrative accountability and justice.

Interaction between common law, PAJA and the Constitution

In Minister of Environmental Affairs & Tourism v Phambili Fisheries, the respondent successfully challenged in the court a quo the decision of the Chief Director of Marine Coastal Management to allocate a maximum amount of hake that they were permitted to catch, being less than what they had asked for. The empowering provision was the Marine Living Resources Act. The respondents were both companies of historically disadvantaged persons. They argued that the Chief Director had failed to consider adequately the need for transformation when allocating less to them than they had requested.

In Bato Star Fishing, the applicant relied on three grounds in its application for special leave to appeal:

(a)    that the Supreme Court of Appeal (SCA) had misconstrued the nature of the objectives in section 2 of the Act;
(b)   that the SCA incorrectly concluded that the Chief Director's decision should not be set aside on the ground that he failed to apply his mind to the quantum of hake applied for by the applicant and its ability to catch such quantum; and
(c)    that the SCA had erred in finding that the alleged "undisclosed policy change" by the Department did not infringe the applicant's right to procedural fairness.

The court held that there are not two systems of administrative law, one founded on the Constitution and one founded on the common law. There is now but one system of administrative law founded in the Constitution and expressed in PAJA.

Section 1 of PAJA defines the scope of administrative action. It was held that the cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law, as in the past, and that the authority of PAJA to ground such causes of action rests squarely on the Constitution.

In Petro Props v Barlow, the applicant was the owner of immovable property on which it intended to construct and operate a filling station. It had the backing of Sasol, with which certain agreements had been concluded. The respondents were opposed to the development, fearing that a filling station in the proposed location will be detrimental to the wetland surrounding it. In spite of this, the applicant was granted authorisation in terms of section 22 of the Environmental Conservation Act (ECA).  A campaign was launched in opposition to this. The application was for an interdict to prohibit the respondents from continuing the campaign.

The respondents resisted the application for an interdict on the ground that it would violate the constitutional right to freedom of expression.

The applicants argued that sections 35 and 36 of the ECA operate as a limitation on the constitutional right to freedom of expression and that the limitation was justifiable in terms of section 36 of the Constitution. This argument was rejected. The court held that such limitation on the rights in the Bill of Rights was not justifiable in terms of section 36, as the factors must be considered on the criterion of proportionality.

The structure of the applicants' argument was based on section 7 of PAJA, which limits access to the right to have administrative action reviewed until internal appeal or review procedures have been exhausted. One difference between the right to administrative action and the other rights in the Bill of Rights is that PAJA explicitly places that limitation on access to the protection of section 33.
The mere fact that alternative procedures exist does not create this limitation.

In the new constitutional order, the control of public power is always a constitutional matter.

The court's power to review administrative action no longer flows directly from the common law but from PAJA and the Constitution itself. The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter.

The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of PAJA and the Constitution.

Promotion of Administrative Justice Act (PAJA)

Purpose and preamble

This law was passed to realise the vision of an open and accountable system of administrative law that is fair and just. It is designed to constrain government, and represents a decisive break from the past.

The purpose of the Act is to give effect to the right to administrative action which is lawful, reasonable and procedurally fair, and the right to written reasons for administrative action.

The preamble of the Act promotes efficient administration and good governance, and emphasises the importance of a culture of accountability, openness and transparency in public administration.


"Administrative action"

"Administrative action" is defined in the Promotion of Administrative Justice Act (PAJA) as any decision taken, or any failure to take a decision, by an organ of state, when exercising a power in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation; or 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.

The Act resolves to control exercises of public power, even by private actors, with the requirements of lawfulness, procedural fairness and reasonableness. It is the nature of the functions performed, as opposed to the nature of the functionary, that is important. It has been argued that this definition has shortfalls, in that, for example, it excludes the nine categories of public functions.


A decision in this context includes a proposed decision and a failure to take a decision. An administrative decision must be taken without unreasonable delay, or within the time period that may be prescribed for the particular administrative action.

In PAJA, a "decision" is defined as any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be, under an empowering provision, including a decision relating to making, suspending, revoking or refusing to make an order, award or determination; giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; imposing a condition or restriction; making a declaration, demand or requirement; retaining, or refusing to deliver up, an article; or doing or refusing to do any other act or thing of an administrative nature.

A reference to a failure to take a decision must be construed accordingly.

A decision is the exercise of discretionary powers. It is a legislative function performed by an elected legislative body, not subordinate legislation.

In Noupoort Christian Care Centre v Minister of National Department of Social Development the applicant argued that the failure by the respondent to determine the question of whether the applicant was entitled to a permanent licence amounted to unlawful administrative action. It was held that inaction on the part of the respondent falls under the definition of administrative action in section 1 of PAJA. A decision includes any decision of an administrative nature made under an empowering provision, including the decision relating to issuing or refusing to issue a licence.

"Of an administrative nature"

Most decisions that administrators take as part of their official functions are of an administrative nature. There is necessarily a public character to the phrase. The relationship is one of inequality or subordination. It excludes decisions made in the exercise of legislative and judicial power. These are decisions connected with the daily or ordinary business of government. The effect of the phrase "of an administrative nature" is that only decisions made in the course of exercising and performing powers and functions will qualify as administrative action subject to PAJA.

In Gamevest v Regional Land Claims Commissioner, Northern Province and Mpumalanga, the appellant challenged a decision of the Regional Land Claims Commissioner to accept the claim of the fifth respondent for certain land in terms of the Restitution of Land Rights Act. The steps to be followed in terms of section 11 of the Act are as follows:

  • §  The applicant lodges the claim.
  • §  Once it is accepted, notice is given in the Government Gazette of this fact.
  • §  The Commissioner investigates the matter.
  • §  The matter is referred to the Land Claims Court.

When the matter reached the court, PAJA had not yet come into force, so it was necessary to rely on the common law. On the facts, the alleged decision was merely an opinion expressed by a representative of the Commissioner at the first stage of the process; it was therefore not an administrative decision that could be set aside.

In Platinum Asset Management v Financial Services Board; Anglo Rand Capital House v Financial Service Board, the applicants were companies believed to be carrying on operations buying and selling shares on behalf of paying clients on various international stock exchanges without the necessary approval in terms of section 445 of the Stock Exchange Control Act. On the basis of this belief, the CEO authorised inspections of the applicants, which subsequently took place.

The applicants sought the review and setting aside of the decision to authorise an inspection on the basis that the inspection was ultra vires the powers conferred in section 3(1), because the applicant companies were not "financial institutions" or "associated institutions" within the meaning of section 3(1); that the authorisation made was vague and overboard; that the investigation was initiated at the behest of a foreign regulating authority, and the purpose of the authorisation, in seeking to ensure compliance with the laws of that country, was ulterior that the inspectors responsible for carrying out the investigation were not independent; and that the investigation was ultra vires because the Financial Services Board (FSB) is empowered to investigate only contraventions of laws supervised by the FSB, namely laws relating to financial institutions.

There are, then, two sets of actions, regarding respectively the decision of the CEO to authorise inspections; and the inspections themselves.

It was held that, while the CEO's decision would not amount to administrative action within the meaning of section 1 of PAJA, whether the actions of the inspectors would was a separate inquiry.
As to the meaning of administrative action, it was noted that rights need only be affected, rather than affected adversely, in order to meet the definitional standards of section 1 of PAJA.

There is, furthermore, no distinction between administrative action as defined in PAJA and administrative action as defined in section 33 of the Constitution, so the procedural requirement cannot be avoided. If PAJA applies to a case, therefore, its provisions must be determinative of the merits of the case.

"Empowering provision"

The importance of this provision lies in the determination of lawfulness of the administrative action. An "empowering provision" is a law; a rule of common law; customary law; or an agreement, instrument or other document in terms of which an administrative action was purportedly taken.

The empowering provision is an extremely important aspect of any administrative action. Any action not authorised by the empowering provision is not allowed. In fact, section 6 of PAJA says that a court may set aside decisions where the decision was taken by an administrator who was not authorised to do so by the empowering provision; the decision was taken by someone who was delegated to take the decision, but the empowering provision did not allow such delegation; a "mandatory and material procedure or condition" set out in the empowering provision was not followed; or the action was taken for a reason that was not authorised by the empowering provision; or the action was not rationally connected to the purpose of the empowering provision. An "enabling statute" is that legislation which allows the administration to act.

In the case of natural or juristic persons, a wider definition of "empowering provision" is employed to accommodate instances where natural or juristic persons exercise public power or perform public functions, such as the functions awarded to them in terms of outsourcing agreements.

The powers contained in the empowering provision may be express; they may also include tacit powers, in which case rules can be applied to establish the content and ambit of the administrator's authority in the particular circumstance.

Administrators operate under certain conditions and for the most part have very little freedom to choose how they would like to make decisions. They are controlled by empowering provisions, which govern decisions according to sets of rules. These rules may come in the form of conditions, expressed by such terms as "age," "fit and proper," "exceptional circumstances," "reasonable," etc.

These are often hard to define, so some of these concepts need to be given meaning. This is done by setting a standard against which people or circumstances can be measured. Such standards need to be relevant; fair; and reasonable.

In some circumstances, there are guidelines about how an administrator should act. These can be found by looking at how such decisions have been made within their department, and how the courts have interpreted these words in the past. Sometimes the Preamble to the empowering Act may also say what the purpose of the Act is.

"Not specifically excluded by the Act"

The Act specifically excludes some decisions of administrators, such as decisions made in terms of the Promotion of Access to Information Act.  

Examples include

  • ·         the exercise of powers by the Executive in the national, provincial and local spheres of government
  • ·         the making of legislation;
  • ·         the judicial functions of the courts;
  • ·         the actions of traditional leaders and a special tribunal;
  • ·         a decision to prosecute;
  • ·         appointment of judicial officers;
  • ·         decisions under PAIA; and
  • ·         a decision in terms of section 4(1).

It is important to note that in section 33 the adjective "administrative," not "executive," is used to qualify "action." This suggests that the test for determining whether conduct constitutes "administrative action" is not whether or not the action concerned is performed by a member of the executive arm of government.

What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not. It may well be that some acts of a legislature may constitute "administrative action."

Similarly, judicial officers may, from time to time, carry out administrative tasks.

The focus of the enquiry as to whether conduct is "administrative action" is not on the arm of government to which the relevant actor belongs, but on the nature of the power he or she is exercising.