What Difference does the Promotion of Administrative Justice Act make to Administrative Law?

• Jurisdiction: South Africa
• Pages: 325-351
• Author: Iain Currie
• Published date: 15 August 2019
• Citation: 2006 Acta Juridica 325
• Date: 15 August 2019

What Difference does the Promotion of

Administrative Justice Act make

to Administrative Law?

IAIN CURRIE*

University of the Witwatersrand

I GOT THE PAJA BLUES AGAIN

Unloved, disrespected, misunderstood, ignored. If the misfortunes of the

Promotion of Administrative Justice Act 3 of 2000 (PAJA) were set to

music it would have to be the blues. Close your eyes and you might hear,

for an instant, the late great John Lee Hooker doing his unforgettable ‘I’ll

never get out of these PAJAblues alive’.

It should not have been this way. The origins of the Act lie in an

entirely well-meaning attempt at law reform that was mandated by the

1996 Constitution. The Act was intended to be an organised legislative

statement of the general administrative law of South Africa. The limits

and the legal minima for the lawful exercise of administrative power,

standards that previously had to be extricated from the bramble bush of a

century of judicial precedent, would be set down in a single, def‌initive

legislative statement for all (and particularly administrators) to see and

use. While it is perhaps still too early to declare it a reform that has failed,

PAJA has certainly been a reform that has met with a great of resistance

and misunderstanding from the courts that are its principal interpreters

and implementers.

Cora Hoexter’s article in this volume has described some of the

pathologies of the judicial response to PAJA brought on by the Act’s

threshold def‌inition of administrative action.

1

The courts, she shows,

have variously responded to the diff‌iculties of the def‌inition by: ignoring

it (and the Act) completely; fussing over the formal complexities of the

concept of administrative action at the expense of dealing with the

substance of the Act and the substance of the administrative-law

challenge; sidestepping the def‌inition by constructing a secondary system

of administrative law, largely identical in content to the common law and

grounded in the constitutional principle of legality. I want to add only a

brief coda to Professor Hoexter’s article. I am also concerned with the

judicial response to the Act but my focus is less on the threshold concept

of administrative action than on the remainder of the Act, on its measures

* Professor of Law, University of the Witwatersrand.

1

Cora Hoexter ‘Administrative Action in the Courts’in this volume.

325

2006 Acta Juridica 325

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imposing duties on administrators with the aim of ensuring the

lawfulness, reasonableness and, particularly, the procedural fairness of

administrative action. In those decisions in which PAJAhas been held to

apply (in other words, once one is over the threshold of administrative

action), what difference does the Act make to the conduct of administra-

tive review? The answer given by a number of judicial decisions,

including those of the highest courts, is – no difference.

This would not matter terribly much unless one thinks, as I happen to

do, that the Act was precisely intended to make a difference, that it is an

exercise in law reform. It would, after all, be a curious (or perhaps, a

resistant) response to legislation that is evidently intended to change the

law to say that it makes no difference to the underlying law and that one

might as well put the legislation aside and instead decide a case on the

basis of the underlying law. But PAJA is, it seems, not uniformly viewed

as reforming legislation. There is a competing conception of the Act that

underlies and sustains an interpretation that it makes no difference. It is,

and this may seem counter-intuitive at f‌irst, a conception of PAJA as a

type of codif‌ication of the common law.

2

The most high-prof‌ile example of this way of seeing PAJA can be

found in the recent litigation over the Medicine Pricing Regulations,

litigation that saw no fewer than 12 judgments delivered by three courts.

3

Eleven of those judgments grapple with the issue of the application of

PAJA and most (those that hold the Act to be applicable) with its

principles and requirements. The lone exception is the judgment of

Harms JA in the Supreme Court of Appeal. This decision (concurred in

by all the other members of the court) devotes a single paragraph to the

Act. Here it is in its entirety:

The question whether ministerial regulations and the recommendations of

the committee could have been the subject of scrutiny under the Promotion

of Administrative Justice Act 2 of 2000 formed a large part of the judgments

below. The majority held that they could not and the minority held

otherwise. Notwithstanding they were agreed that the regulations had to

2

Counter-intuitive because our ref‌lex is to conceive of codif‌ication as ‘a formal

enunciation of the law by the legislature [that] takes the place of unwritten law which has to be

ascertained from precedents and the treatises and opinions of the jurists’: HR Hahlo & Ellison

Kahn The South African Legal System and its Background (1968) 66. However,as I will show, in a

number of decisions on PAJA, the formal legislative enunciation of the law does not ‘take the

place’ of the common law,which continues to play a decisive role.

3

New Clicks SA (Pty) Ltd v Msimang NO; Pharmaceutical Society of SA v Minister of Health

2005 (2) SA 530 (C) (the majority judgment of Yekiso J (Hlophe JP concurring) and the

minority judgment of Traverso DJP); Pharmaceutical Society of South Africa v Tshabalala-Msimang

NO 2005 (3) SA 238 (SCA) (the judgment of Harms JA for the unanimous court); Minister of

Health v New Clicks SA (Pty) Ltd 2006 (2) SA 311(CC) (judgments of eight individual justices

and an en banc judgment). I am not counting the two judgments on the issue of leave to appeal

reported in New Clicks South Africa (Pty) Ltd v Tshabalala-MsimangNO 2005 (3) SA 231 (C).

326 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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