Administrative Law

• Author: van Coller, Helena
• Published date: 28 March 2022
• Date: 28 March 2022
• Citation: 2020/2021 YSAL 72
• Pages: 72-100

72

1. INTRODUCTION

During the per iod from July 2020 to June 2021, many cases were decided

about the definition of admi nistrative action and the di fferent pathways

to review. Several issues dealing with procedures a nd remedies were also

considered by the courts. In the context of t he definition of admi nistrative

action, the court paid speci fic attention to the elements of ‘exercising a public

power or performing a public funct ion in terms of an empowering provision’

and ‘a direct, external legal effect ’. The Promotion of Administ rative Justice

Ac t ( PAJ A) 1 imposes standards of lawf ulness, procedural fair ness and

reasonableness on public power that amounts to admi nistrative action.

Decisions on these i ssues remain relevant, because exercising these powers

in a manner th at fails to satisfy the sta ndards of accountability i mposed

by PAJA may lead to these decisions bei ng declared invalid and se t aside.

In judicial review proceedi ngs, appropriate remedies under PAJA may be

granted. The particu lar focus wil l be on correcting a nd substitution as a

remedy and structura l interdicts will also be considered.

Unless excluded for a specific reason, conduct th at amounts to

administrat ive action is reviewable under PAJA. In some cases, the cou rts

reviewed decisions through t he lens of PAJA, and in others, u nfortunately

they did not. The reliance on di fferent pathways to review and the tendency

of the courts to still fa il to determine t he proper legal basis upon which

to exercise their review jur isdiction, therefore, continue to be releva nt. In

terms of the grounds of rev iew, several cases raised issues of procedural

fairness and bias, but in most i nstances, the courts d ismissed the se

arguments. In relation to corre cting and substit ution as a remedy under

PAJA, the courts conf irmed that exceptional c ircumsta nces are needed to

justify a substitut ion order under s8(1)(c)(ii)(aa) of PAJA. Many cases dealt

* LLB LLM (UFS) LLM (Utrecht) LLD (UJ); Professor, Faculty of Law, Rhodes University.

ORCID: https://orcid.org/0000-0002-8519-7580.

1 3 of 2000.

Administrative LawAdministrative Law

Helena van Coller*

2020/2021 YSAL 72

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AdmINIstrAtIve LAW 73

with the delay rule under the pri nciple of legality in the context of ‘self-

reviews’, where the state seek s to take its own conduct on review. In the

context of the status of unlawfu l acts, it seems that the Constitutional Court

had provided some clarification.

2. CASES

2.1 ADMINISTRATIVE ACTION

Several cases under review considered whet her a particular dec ision

constituted admin istrative action in terms of s1 of PAJA. In Magnificent Mile

Trading 30 (Pty) Ltd v Celliers NO2 the Con stitutional Court accepted that the

relevant decisions (the grant and refus al of prospecting and m ining rights)

were administrative action. T he Supreme Court of Appeal (SCA) held that

these decisions have the potentia l to adversely affect rights and that t hey

are not contractual in nat ure, but ‘unilateral admini strative act[s] by the

Minister or her delegate in terms of their statutory powers’.3

The classification of the conduct of body corporates of se ctional titles

schemes is not always that clear. Some cases have classi fied their conduct as

private i n nature,4 whilst other c ases have regarded their conduct as public,

like the recent case of BAE Estates and Esc apes (Pty) Ltd v Trustees for the Time

Being of the Legacy Body Corporate.5 In BAE Estates, the owner of one of the

units instr ucted the applicant to find a tenant for his unit. The ten ants were

permitted to sublet the un it through Airbnb, which resulted i n a stream of

complaints to the second respondent concern ing the conduct of these Airbnb

occupants. These complaints were di rected to the applicant, in its capacity

as the owner’s agent. The first respondent, the truste es of the Legacy Body

Corporate, took a decision barring the applicant from conduct ing business in

the sectional t itle scheme. The applicant then brought an urgent application

seeking the set ting aside of the decision on numerous g rounds and costs,

to be couched in the form of a rule nisi. The applicant subm itted that the

decision amounted to admin istrative action in terms of PAJA.6 The first

respondent submitted that the deci sion did not constitute admin istrative

action, ‘in that it had not exercised a public power nor performed a public

2 2020 (4) SA 375 (CC).

3 Executrix of the Estate of the Late Josephine Terblanche Gouws v Magnificent Mile Trading 30

(Pty) Ltd (unreported, [2018] ZASCA 91, 1 June 2018, available online at http://www.saflii.org/

za/cases/ZASCA/2018/91.html) para 28.

4 See, for instance, Abraham v Mount Edgecombe Country Club Estate Management Association

Two (RF) (NPC) (unreported, [2014] ZAKZDHC 36, 17 September 2014, available online at

https://www.saflii.org/za/cases/ZAKZDHC/2014/36.html); Khyber Rock Estate East Home

Owners Association v 09 of Erf 823 Woodmead Ext 13 CC (unreported, [2007] ZAGPHC 137,

14 August 2007, available online at http://www.saflii.org/za/cases/ZAGPHC/2007/137.html).

5 2020 (4) SA 514 (WCC).

6 Para 14.

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