Administrative Law

• Jurisdiction: South Africa
• Author: Murcott, M.
• Date: 10 March 2021
• DOI: https://doi.org/10.47348/YSAL/v1/i1a1
• Citation: 2019/2020 YSAL 70
• Pages: 70-96
• Published date: 10 March 2021

70

1. INTRODUCTION

Judicial review of public power remains an impor tant legal mechan ism in

the pursuit of a culture of just ification in South Af rica, ‘a culture in which

every exercise of power is expected to be just ified’ and to be consistent

with Constitution of the Republic of South Af rica, 1996.1 Two pr i m ar y

legal bases exist to promote a cultu re of justification in judicia l review

proceedings concern ing the exercise of public power. First, there is the

principle of legality, as an aspect of the value of the rule of law provided

for in s 1(c) of the Constitut ion, which imposes standards of lawf ulness

and rationality on exercise s of public power. Secondly, the Promotion of

Administrative Justice Act (PAJA) legislation constitutionally mandated by

the right to admini strative action provided for in s 33 of the Constitution,

controls public power that amounts to 'administ rative action’. PAJA

imposes standards of lawfu lness, procedural fair ness and reasonableness

on public power that amounts to administ rative action, and also a duty

to give reasons.2 In judicial rev iew proceedings, exercises of public power

that fail to satisfy t he standards of accountability i mposed by the principle

of legality, and administrative action th at fails to satisfy the sta ndards of

accountability imposed by PAJA, may be declared invalid and set aside,

or other appropriate remedies may be granted. Where t he public power is

performed in the context of a public-sector employment di spute, the Labour

Relations Act (LRA),3 specialised legislation regulating labour relations,

* BA LLB (UCT) LLM (Pret) LLD (NWU); Senior Lecturer, Department of Public Law,

University of Pretoria. ORCID: https://orcid.org/0000-0001-8311-2195.

† LLB (Pret); LLM (Wits); Lecturer, Faculty of Law, North-West University. ORCID: https://

orcid.org/0000-0002-7829-178X.

‡ BBusSc (Econ with Law) (UCT) LLB (UCT); Associate, Herbert Smith Freehills. ORCID:

https://orcid.org/0000-0003-0818-6121.

1 Etienne Mureinik ‘A bridge to where? Introducing the interim Bill of Rights’ (1994) 10

SAJHR 31, 32.

2 3 of 2000.

3 66 of 1995.

Administrative LawAdministrative Law

Melanie Murcott*, Gabrielle Burns† and Stewart Payne‡

2019/2020 YSAL 70

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AdministrAtive LAw 71

https://doi.org/10.47348/YSAL/v1/i1a1

could be applicable.4 During the period from June 2019 to July 2020, many

cases have been decided with reference to t he standards of accountability

imposed by legality, PAJA and the LRA. The purpose of t his chapter is to

comment on some of the major developments and trends in adm inistrative

law that have emerged from these cases. Ther e were no major developments

in legislation during t he period under review.5

First, we discuss cases t hat illustrate the tendency of the cour ts to fail

to determine, or properly justify, whether PAJA or legality is the proper

legal basis upon which to exercise the ir review jurisdict ion. We show that

although the courts somet imes make a clear and justi fied finding on whether

legality or PAJA ought to be the legal basis of review, in several cases the

courts have applied and developed the principle of legality and avoided

applying PAJA, often without offering a proper justific ation. The principle

of legality therefore continues to burge on.6 For instance, courts have begu n

invoking s217 of the Constitution as t he basis for reviewing public power

in the context of procurement dis putes, rather than invoking PAJA, albeit

that procurement decisions h ave been understood traditionally to amount

to administrative action.7 Secondly, we discuss cases which illustrate th at,

in the context of public-sector employment disputes, the court s adopt

divergent approaches in determini ng whether or not to exercise their review

jurisdiction, and have been u nable to chart their way through such cases in

a consistent and principled man ner. Thirdly, we focus on developments that

have emerged from cases concerni ng the review of conduct performed by

the Public Protector. These raise intere sting questions about the appropriate

degree of deference to be shown to inst itutions established in ter ms of

Chapter 9 of the Constitution. Fina lly, we discuss cases which illustrate

developments in the rule that in term s of the principle of legality judicial

review proceedings should be launc hed without unreasonable delay (the

delay rule under the principle of legality). This is par ticularly the case i n

the context of so-called ‘self-reviews’, where the state seeks to take its own

conduct on review. The cases reveal that the courts tend to condone delays

in self-reviews, even where such delays are unreason able, but then attempt

4 Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC) paras 94–104.

5 In October 2019, parliament adopted the Administrative Review Rules (2019 Rules) in

terms of s7(3) of PAJA. These rules repealed and replaced the 2009 Rules for Procedure for

Judicial Review of Administrative Action that were held to be unconstitutional for various

reasons (Lawyers for Human Rights v Rules Board for Courts of Law [2012] 3 All SA 153 (GNP)). The

2019 Rules are consistent with the current procedure for review of administrative action under

the Uniform Rules of Court and do not contain any significant amendments. The 2019 Rules

were reviewed in detail in (2019) 2(1) JQR Administrative Law.

6 Cora Hoexter ‘The enforcement of an official promise: Form, substance and the

Constitutional Court’ (2015) 132 SALJ 207 at 219.

7 Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) paras 38–39.

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