Administrative Law: South African study guide

About this module

Administrative Law teaches how the law controls the everyday exercise of public power by government departments, officials, municipalities and other bodies: when their decisions count as "administrative action", what makes those decisions lawful, reasonable and procedurally fair, when reasons must be given, how a decision can be challenged in court, and what a court can order. Educational tool, not legal advice. All law is South African.

Level: usually third or fourth year (LLB). Prior knowledge: Module 6 (Constitutional Law), especially the Bill of Rights and the separation of powers.

How this guide teaches. Each chapter starts with a problem, gives the big picture, teaches the rules with case boxes (the legal issue, what the court held, and why it matters), lists common mistakes, sums up in short, and ends with practice questions, flashcards and a quiz. Cases are taught by the legal issue they decide, not by their facts.

Common cases and how they are checked

Module blueprint

AL1: The constitutional framework and legality

Problem. A municipal council passes a resolution increasing property rates. A ratepayer wants to challenge it as "unfair administrative action". Another applicant wants to challenge a minister's regulations directly under s 33 of the Constitution, without relying on PAJA.

The big picture. Before 1994, administrative law was a common-law system of review, limited by parliamentary sovereignty. Today, s 33 of the Constitution gives everyone the right to administrative action that is lawful, reasonable and procedurally fair, and to written reasons when their rights have been adversely affected. PAJA gives effect to s 33. Public power that is not administrative action is still controlled by the principle of legality, part of the rule of law (Constitution s 1(c)).

AL1.1 Two pathways

• PAJA: for decisions that qualify as administrative action (AL2). It has detailed grounds of review, procedures and time limits.
• Legality: for all other exercises of public power (for example, legislation, executive decisions and, as AL7 shows, an organ of state's challenge to its own decision). It requires that power be exercised lawfully, within the powers conferred, and rationally, for the purpose for which it was given.

Case: Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council (Constitutional Court, 1998)

• Legal issue: Are a municipal council's resolutions setting rates and levies "administrative action", and if not, are they subject to any judicial control?
• Held: Decided under the interim Constitution (whose s 24 protected administrative justice). A municipal council is a deliberative, elected legislative body, and its by-laws and resolutions to impose rates and spend public funds are legislative, not administrative, action (paras 41–45). But it may act only within the powers lawfully conferred on it: the exercise of public power is legitimate only when lawful. This principle of legality is fundamental to the Constitution and applies to legislative and executive action that is not administrative action (paras 56–59) (Chaskalson P, Goldstone and O'Regan JJ).
• Why it matters: it is the foundation of legality review of all public power. The requirement that public power also be exercised rationally was added later, in Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the RSA [2000] ZACC 1; 2000 (2) SA 674 (CC) (paras 85–90).

Case: Minister of Health v New Clicks South Africa (Pty) Ltd (Constitutional Court, 2005)

• Legal issue: May a litigant challenge administrative action directly under s 33 of the Constitution, bypassing PAJA?
• Held (Chaskalson CJ): PAJA was required to cover the field and purports to do so; a litigant cannot avoid PAJA by going behind it to rely directly on s 33 or the common law (paras 92–97). Making delegated legislation can be administrative action under s 33 (paras 109–118). (The members of the Court differed on whether PAJA applied to these regulations; several found it unnecessary to decide (para 13).)
• Why it matters: where conduct is administrative action, PAJA is the route (the principle of subsidiarity).

Back to the problem. The rates resolution is legislative, not administrative, action, so PAJA does not apply; the ratepayer must rely on legality (Fedsure). The second applicant cannot bypass PAJA: if the regulations are administrative action, the challenge must be brought under PAJA (New Clicks).

In short. s 33: lawful, reasonable, procedurally fair administrative action and reasons; PAJA gives effect to it. Non-administrative public power is subject to legality: lawfulness (Fedsure) and rationality (Pharmaceutical Manufacturers). Where PAJA applies, it must be used (New Clicks; subsidiarity).

Common mistakes

• Thinking that the common law of review still runs alongside PAJA.
• Thinking that public power outside PAJA is beyond review.

AL1 practice

1. Is the passing of a by-law by a municipal council reviewable under PAJA? Answer: no; it is legislative action, reviewable under the principle of legality (Fedsure).

Flashcards

Quiz

1. Public power that is not administrative action is: (a) unreviewable (b) reviewable under the principle of legality (c) reviewable under PAJA. Answer: (b).