‘Administrative Action’ in the Courts

• Jurisdiction: South Africa
• Author: Cora Hoexter
• Pages: 303-324
• Date: 15 August 2019
• Published date: 15 August 2019

‘Administrative Action’ in the Courts

CORA HOEXTER*

University of the Witwatersrand

Twelve years ago South Africans acquired constitutional rights to just

administrative action for the f‌irst time.

1

Simultaneously and ineluctably

we acquired the new concept of ‘administrative action’ itself. This

threshold concept describes the area of operation of the rights to

administrative justice. Most obviously, and as the Constitutional Court

made clear early on in a series of ground-breaking decisions, these rights

do not apply to legislative,

2

executive

3

and judicial

4

decisions. But more

recently that basic threshold has been raised considerably. The Promotion

of Administrative Justice Act 3 of 2000 (PAJA), which was mandated by

the Constitution in order to give effect to the rights in s 33 of the 1996

Constitution,

5

has severely circumscribed the realm of administrative

action by means of an elaborate statutory def‌inition.

6

While I accept that the rights in s 33 must attach to something, I have

little faith in the benef‌its of threshold concepts in general. I have even less

faith in the way in which this particular concept has been def‌ined in the

Act. As I have indicated a number of times since the enactment of the

PAJA,

7

to me the statutory def‌inition seems parsimonious, unnecessarily

complicated and probably as unfriendly to users as it is possible to be.

Indeed, my opinion is that this part of the PAJA creates many more

* Professor of Law, University of the Witwatersrand.I am grateful to Clive Plasket for his

comments on a draft of this paper.

1

Rights to administrative justice were initially contained in s 24 of the interim

Constitution (Constitution of the Republic of South Africa,Act 200 of 1993) and subsequently

in s 33 of the 1996 Constitution (Constitution of the Republic of South Africa,Act 108 of

1996).

2

Fedsure Life Assurance v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC) at

paras 33–45.

3

President of the Republic of South Africa v South African Rugby Football Union (the SARFU

case) 2000 (1) SA 1 (CC) at para 142.

4

Nel v Le Roux NO 1996 (3) SA 562 (CC) at para 24.

5

Section 33 reads as follows: ‘(1) Everyone has the right to administrative action that is

lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely

affected by administrative action has the right to be given written reasons. (3) National

legislation must be enacted to give effect to these rights, and must – (a) provide for the review

of administrative action by a court or, where appropriate, an independent and impartial

tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and

(c) promote an eff‌icient administration.’

6

Section 1 of the PAJA.

7

See C Hoexter ‘The future of judicial review in South African administrative law’(2000)

117 SALJ 484; C Hoexter with R Lyster (I Currie ed) The New Constitutional and Administrative

Law vol II Administrative Law (2002), especially at 99ff; C Hoexter ‘Contracts in administrative

law: Life after formalism?’ (2004) 121 SALJ 595; C Hoexter ‘The principle of legality in South

African administrative law’ (2004) 4 Macquarie LJ 165.

303

2006 Acta Juridica 303

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problems than it solves, and here I do not mean merely technical

diff‌iculties such as the precise meaning of phrases contained in the

def‌inition. The judicial tendencies to which I shall draw attention in this

paper suggest problems of a far more fundamental and systemic nature.

This paper is not primarily concerned with the characteristics of

administrative action or with what the courts have already classif‌ied as

administrative. Nor is it my aim to offer a complete survey of the case

law. I hope to show merely that my pessimism about the concept of

administrative action is apparently being justif‌ied by some of the

responses of the courts over the last few years – both to ‘administrative

action’ in its constitutional incarnation and to theAct’s def‌inition of it.

I ADMINISTRATIVEACTION: THE CONSTITUTION AND

THE ACT

South African administrative lawyers have had to adapt from the old

context of undemocratic legislative sovereignty to a new one of

constitutional democracy. We have also had to adapt from a system of

common-law review to one based on constitutional rights to administra-

tive justice. More recently we have had to work out the relationship

between the common law, the constitutional rights and a statute that

purports to give effect to the constitutional rights. These radical changes

of the last decade are a fascinating study in themselves.

8

A particular area

of interest is the Constitutional Court’s pioneering work in giving

meaning to ‘administrative action’, a term not def‌ined in the interim or

1996 Constitutions. Another area obviously worth examining is the

def‌inition in the Act and its various elements.

This is not the place for close discussion of these topics, however. The

work of the Constitutional Court in this regard is, I hope, too well

known to require detailed explanation here.

9

Similarly, the various

elements of the def‌inition in the Act have been subjected to minute

examination by a number of commentators,

10

and I trust that there is no

need to canvass them in detail now. Instead I wish to make a few essential

points about the realm of administrative action established by the

Constitutional Court and that established by the PAJA, and to note what

the consequences are when action falls outside the latter. All of these

8

See K O’Regan ‘Breaking ground: Some thoughts on the seismic shift in our

administrative law’ (2004) 121 SALJ 424.

9

See eg I Currie & J Klaaren The Promotion of Administrative Justice Act Benchbook (2001)

35ff; C Plasket The Fundamental Right to Just Administrative Action: Judicial Review of

Administrative Action in the Democratic South Africa (unpublished PhD thesis, Rhodes University,

2002) 126ff; Hoexter Administrative Law (n 7) 93ff;JRdeVille Judicial Review of Administrative

Action in South Africa (2003) 35ff.

10

See eg Currie & Klaaren (n 9) 40ff; Plasket (n 9) 149ff; Hoexter Administrative Law (n 7)

99ff; De Ville (n 9) 38ff.

304 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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