Determining whether an administrator has

unlawfully abdicated his or her power to make a

decision
It will not always be easy to determine whether an
administrator has unlawfully abdicated his or her power to
make a decision. In a modern state, an administrator may
rely on other functionaries to assist him or her to make a
sound decision. When the decision of an administrator,
who is authorised to make a decision, is informed by the
advice of others, this will not necessarily be unlawful. In
complex matters of a technical nature the administrator
may not necessarily have the requisite expertise to make a
proper decision. In such cases, it will not necessarily be
unlawful for that administrator to take advice from others.
The situation will be different where the authorised
administrator fails to exercise his or her discretion at all
and, instead, rubberstamps the decision of somebody who
is not authorised to make the decision at all. For example,
say a departmental official is authorised to make a decision
on whether or not to grant a fishing licence. The decision is
based, inter alia, on a technical assessment of whether the
granting of such a licence would threaten the sustainability
of fishing in a particular area. If that departmental official is
not a marine biologist with expertise about the effects of
fishing in an area on the fish stock in that area, there would
arguably be nothing wrong with that official consulting a
marine biologist for advice. However, the situation will be
different when, say, that official grants a fishing licence to
someone after having been instructed to do so by a
politician who is not authorised to make a decision on the
granting of fishing licences.
Apart from the points set out above, the requirement of authority also
provides that the administrator must comply with any statutory
requirements or preconditions attached to the exercise of the power in
question. It is not surprising, therefore, that section 6(2)(b) of the PAJA
allows for administrative action to be reviewed and set aside if there is no
compliance with a mandatory or material procedure or condition.
c) The concept of jurisdiction
An administrator is required to remain within the substantive and
procedural bounds of his or her powers and may not misconstrue these. If
he or she fails to do so, the decision could be reviewed on the basis that he
or she lacks jurisdiction to exercise that power. The concept of jurisdiction
may be divided into two separate elements, namely a material mistake of
law – where the legal provision on which the decision is based is wrongly
interpreted – and, more controversially, a material mistake of fact. A
material mistake of law occurs when an administrator misinterprets the
law. As a result of this misinterpretation, the administrator misunderstands
the nature of his or her power and, therefore, exercises it improperly.78
This ground of review is referred to in section 6(2)(d) of the PAJA which
simply states that a court may review an administrative action if the action
was materially influenced by an error of law. In so far as this provision is
concerned, it is important to note that it is only decisions based on material
errors of law that will be set aside. Materiality has been defined as follows:
If, for instance, the facts found by the tribunal are such
as to justify its decision even on a correct interpretation
of the statutory criterion, then normally (ie: in the
absence of some other review ground) there would be no
ground for interference.79
Thus, if the same conclusion would have been reached had the decision
maker not erred, the decision will not be set aside as the error is not
material.
A material mistake of fact occurs when an administrator fails to follow
a prescribed procedure or makes a decision in breach of a substantive
condition the administrator was required to fulfil before making the
decision. A material mistake of fact can enable an administrator to inflate
his or her jurisdiction by accumulating powers beyond those that the
empowering legislation confers on him or her. Although this ground is not
explicitly referred to in the PAJA, it is recognised as a ground for judicial
review.80
d) Abuse of discretion
This ground – which tends to overlap with the requirement of
reasonableness – is dealt with in some detail in the PAJA. Section 6(2)(e)
thus provides that administrative action may be reviewed on the grounds
that it was taken:
• for a reason not authorised by the empowering provision
• for an ulterior purpose
• because irrelevant considerations were taken into account and relevant
considerations were not
• because of the unauthorised or unwarranted dictates of another person or
body
• in bad faith or arbitrarily or capriciously.
When a power is granted for one purpose, it cannot be exercised for any
ulterior purpose or objective. As the Constitutional Court held in the
Pharmaceutical Manufacturers case:
Powers are not conferred in the abstract. They are
intended to serve a particular purpose. That purpose can
be discerned from the legislation that is the source of the
power and this ordinarily places limits upon the manner
in which it is exercised. If those limits are transgressed a
court is entitled to intervene and set aside the decision.81
An example of a power being exercised for a purpose for which it was not
granted can be found in the pre-constitutional judgment of Van Eck NO
and
Van Rensburg NO v Etna Stores.82 This case dealt with wartime
regulations
permitting the administrator to seize food in order to obtain evidence of
suspected violations of the regulations. The administrator acting in terms
of
these regulations seized bags of rice as part of a food distribution scheme
and not to obtain evidence of contravention of the regulations. As the
administrator had acted for an improper purpose, the decision was set
aside.