ACTS
PERFORMED BY THE STATE
South
African Administrative Law
Stes de Necker
Wikipedia
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.
Constitution
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
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.
History
Pre-1994
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.
Reform
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.
Post-1994
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.
Lawfulness
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:
- 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.
- The city's own system of
delegation, like the statutory framework, does not allow the delegation of
power to appoint a municipal manager.
- 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.
Reasonableness
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.
Definitions
"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.
"Decision"
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.
