PART A:

Study Unit 2: the type of conduct that is subject to the requirements of Administrative
Justice: the meaning of “administrative action”.`
1. In administrative law we always start with a case where administrative law might
apply in reference to the facts, and
2. then we move to look at the type of conduct informing the correct legal basis for
review, and
3. then the standards applicable to the conduct (review grounds).
The first step is we start with the conduct – And the conduct can either be public power or
private power….
 If it is Public power – We need to determine if its Administrative Action or non-
administrative action.
o If the conduct is Administrative action = then we use grounds in PAJA for
review,
 Requirements for just administrative action:
 Conduct must be lawful, reasonable (going beyond rationality),
procedurally fair irrespective of the impact of fairness on the
rationality of the decision.
 These requirements/standards are more demanding than that
necessary for public power that is not administrative action.
o If its non-administrative action then we use legality as a ground for review.
 The role of legality is that it plays as a safety net: a basis for
judicial review of public power when it does not amount to admin
action to ensure accountability as held in the Motau and Gijima
cases.
 Legality’s requirements for public power in order to promote the
rule of law:
 Conduct must be lawful, rational, follow a fair process where it
would be irrational not to do so.
 If it is Private power – then we can review the conduct on common law bases if the
power mimics public power.

Ought some exercise of public power to be excluded from the definition of ‘administration
action?’ – The answer to this is simply, Yes. There are three reasons for this:
1. Desirability - It would be undesirable for all public conduct to be subject to all of the
requirements under public law because this could affect an effective government –
creating inefficiency. (eg, if the Minister had to issue notice for every public policy
decision etc…)
2. Impossibility – it is not always possible to impose the full demands of administrative
action, especially in political decision making – the political affiliations will generally
decide on behalf of the supporters of the political party.
 3. Necessity – It is sometimes unnecessary to apply the demands of administrative law
rules because other laws or rules apply. (eg. Making legislative rules in parliament –
there is a full set of rules guiding or governing this – administrative law rules are not
necessary).
These exclusions standards, will not always be applicable to a function – SAFRU inquiry
case – may be necessary to exclude its application to a function sometimes – but not all the
time (fully exclude the application of PAJA to a functionary like SIU). These three reasons
also give effect to the separation powers doctrine.
The role of Variability:
The role of variability is to ensure that the intensity of judicial scrutiny when testing conduct
against administrative law grounds of review may vary according to the context of a
particular case.
PART B:
The definitional elements of administrative action in terms of section 1 of PAJA – a palisade
of qualifications. When will Public power amount to Administrative Action such that it is
reviewable in terms of PAJA rather than in terms of legality?
Conduct must meet the Elements of administrative action:
1. Determine if the conduct is a decision: A choice between two or more legitimate
option – it allows the exercise of discretion and it is not merely mechanical
conduct. (where an official has a duty to take a decision but fails to take a decision,
the failure to take a decision amounts to a decision as affirmed in the:
o Vumazonke: (failure to make a decision within a reasonable time for the
grants application)… The applicant for social-grant had applied to the
department of Social grants but had not received an outcome for an extended
period of time, the court held that the failure by the official to decide whether
they were eligible for social grant was found to be a decision as a reasonable
period would have been three months.
o Phenithi: (where a principal dismissed an educator in the operation of a law) a
school teacher was absent from work without an excuse for an extended time,
she was then dismissed in terms of a legislation which stated that if an
educator was absent from work for longer than 14 days without an excuse, he
or she will be deemed to be dismissed and the court held that there was no
decision because there was no exercise of discretion, the Principal acted by
virtue of operation of law and not in his own discretion. (Note: Where a
decision flows from the operation, then it is not a decision for the
purposes of PAJA, a decision in terms of PAJA is made from discretion).
o Gamevest: (Acceptance of Land claims applications) the land owners wanted
to challenge the very first step in a land claim, someone had lodged a land
claim and in order to lodge such a claim an official has to accept the claim and
the official has to accept if the formal requirements are met, the acceptance in
this case was the issue, the land owners wanted to stop the acceptance of the
claim by the official. The legal question before the court was whether a
 decision was taken, and the court held that no decision had been taken,
because this was mechanical conduct, and a clerical act. (Mechanical and
clerical acts are not an exercise of discretion).
2. If the decision is administrative in nature as opposed to legislative, executive or
judicial.
o Justice Khampepe tells us how to distinguish executive and legislative action –
look at what they perform – not who they are and where is the power for what
they are doing come from?
 If it is from the constitution – it is likely that the person is exercising
executive function
 If from legislation – then administrative.
 Look at the constraints – if not a huge discretion – (the more
constraint) = then its administrative. The wider the discretion the more
likely it is that it is executive power.
 And lastly, how much scrutiny is it appropriate for the court to impose
on the power?
 If highly appropriate – then Administrative
 If more likely to show more respect – then Executive. (Motau
case)
o Scalabrini case: (HC) The closing of the office was found to be
administrative in nature and regulated by PAJA, but the (SCA) found that it
was executive in nature because it was more political.
3. By whomever performed, of a public nature.
4. Impacts people in a specific way, in that it adversely affects rights and has a direct,
external legal effect and
5. Which does not fall within any of the specifically listed grounds for exclusion in
section 1 of PAJA.
When is a decision is taken in terms of PAJA?
- When the decision is administrative on its own.
- When there is an unequal power relationship between the holder of power and the person
whom it is exercised,
- The official is acting in terms of legislation (implementing law).
Administrative v legislative decisions.
 Legislative function usually involves the making of law.
 Judicial function usually involves the adjudication of disputes through interpretation
and application of law and enforcement of rights.
 Executive function usually involves the exercise of administrative public power
(implementation of laws by the state and policy making).
Overlaps:
 Sometimes the creation of law – overlaps into the functions of public administration.
We have two possible situation where this is the case:
1. Can the creation of Municipal by-laws ever be “administrative in nature’?
  For this we will look at the DA v eThekwini Municipality –
(municipalities decision to rename streets) municipal counsel takes a
decision to rename streets and the DA was not happy with this decision, it
felt that there was a wide spread change of street names that was not
necessary and there was no sufficient consultation with regards to
renaming these streets, this was as a result of an ANC policy, and the
eThekwini Municipality resolved by a majority vote in an open plenary
session to change the street names (the majority was the ANC) – the
decision was influenced by the political agenda of the ANC – the court
had to decide if this was administrative or executive
o If administrative – additional public participation processes into the
decision was required… the DA challenged the decisions to
rename the street in terms of PAJA and ultimately conceded before
the court that the decisions were not administrative and the court
agreed “first of all, it must look at the nature of the decision as
opposed to who made the decision” – SARFU inquiry case .
 Looking at the source of the power to make these by-laws
(the source was the constitution),
 second, the court had to look at the manner in which the
decision was taken – (plenary session which involves
participation and debates and the public was engaged and
the fact that there were political motivations = original law
making source) –
 the manner in which the decision took place was
participative and open, therefore the conduct was not
administrative. (Municipality took a legislative decision in
terms of these by-laws)…. To determine if creation of by-
laws is administrative we need to consider the nature.. etc…
the conclusion is that by-laws are legislative and not
Executive
o (Note that each branch (including legislative) is divided into three
spheres of levels: Municipality – Provincial – National legislative
spheres).
o Schedule 4 and 5 indicated that the municipalities decision to make
decisions regarding changing names was within their scope of
competence. – DA could use Legality.
2. Consider whether the creation of Ministerial regulations is administrative or
legislative?
(i) For this we are to read the New clicks case (Ministers create
regulations to implement law and the legislation empowers them to do
so, the outcome of these regulations results in “the creation of law”).
(ii) The New clicks case concerned regulations issued by the Minister of
Health to ensure equity of prices of medicine and to bring the prices
down, pharmacies including the New clicks complained about the
regulations and said it would affect their ability to sell medicine at
competitive prices and that procedural fairness had not been complied
 with in the creation of the regulations as the Minister did not properly
consult with them , to assert that they had to be consulted they had to
argue that the creation of the regulation was administrative action,
however, at this point the principle of legality had not evolved to
include the procedural fairness standard.
 Chaskalson, Langa and O’regan (3) said YES it was
administrative action because always the creation of
ministerial regulations will be Administrative Action.
 Ngcobo and Van der Westhuizen (2) said SOME but not all
regulations would be administrative action.
 Sachs said SOMETIMES it would amount to administrative
action.
 Remaining judges (out of the 11) declined to answer the issue,
as a result, the issue was undecided after the case.
 Subsequently, the courts have said it doesn’t really matter
whether they are administrative or legislative (however, this is
ignorance to the principle of subsidiarity), accordingly, when
dealing with such cases, need to look at various factors because
these cases must be dealt with this on a case to case basis.
 Ultimately, Melanie is of the conclusion that Ministerial
regulations are on the overlap between the executive and
legislative as there is no clear answer.
 Can the creation of policy ever be administrative?
 Generally, the creation of policy is an executive function as affirmed in the Ed-U-
College (concerning reduction of funds given independent schools by the MEC of
Education in the EC). case which was about a challenge by certain independent
schools against a decision by the Eastern Cape Provincial government in relations
to subsidies (government funding) payable to them, the schools said they needed
these subsidies and they had planned based on them – the provincial government
had decided to reduce these subsidies. This was a major problem for the schools
(they said they ought to have been given a right to be heard before this decision so
they can plan properly) and they challenged 3 decisions:
(i) Determination of a budget by the provincial legislation.
(ii) Allocation the budget.
 These two decision were found to be legislative following the
ratio in the eThekwini case
(iii) Decision of the MEC for Education to set a formula on the basis of
which actual payments would be made to individual schools.
 This decision was found to be Administrative in character
because it amounted to a policy formulation in a narrow sense,
because it occurred within the framework of legislation rather
than in a broad sense where political judgement is exercised
outside the legislation’s framework. (para 18)
o This answers the Question whether policy decisions can
be administrative action?
 The answer is: YES – when it occurs in a narrow
sense of a legislative framework .