Learning Unit 5: Administrative action

5.1 DEFINITION OF ADMINISTRATIVE ACTION

Section 1 of PAJA - “administrative action” means any decision taken, or any failure to
take a decision, by—

(a) ~ organ of state, when— (i) exercising a power in terms of the Constitution or a
provincial constitution; or (ii) exercising a public power or performing a public function
in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public
power or performing a public function in terms of an empowering provision, which
adversely affects the rights of any person and which has a direct, external legal effect,
but does not include--

• (aa) the executive powers or functions of the National Executive, including the
powers or functions referred to in sections…
• (bb) the executive powers or functions of the Provincial Executive, including the
powers or functions referred to in sections…
• (cc) the executive powers or functions of a municipal council;
• (dd) the legislative functions of Parliament, a provincial legislature or a
municipal council;
• (ee) the judicial functions of a judicial officer of a court referred to in section...
• (ff) a decision to institute or continue a prosecution;
• (gg) a decision relating to any aspect regarding the appointment of a judicial
officer, by the Judicial Service Commission;
• (hh) any decision taken, or failure to take a decision, in terms of any provision
of the Promotion of Access to Information Act, 2000; or (ii) any decision taken,
or failure to take a decision, in terms of section 4(l).

The following definitions are important:

‘administrator’ – an organ of state or any natural or juristic person taking

administrative action.

1|Page
‘decision’ – any decision of an administrative nature made, proposed to be made, or
required to be made, under an empowering provision, including a decision relating to-

• (a) making, suspending, revoking or refusing to make an order, award or

determination;
• (b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
• (c) issuing, suspending, revoking or refusing to issue a licence, authority or
other instrument;
• (d) imposing a condition or restriction;
• (e) making a declaration, demand or requirement;
• (f) retaining, or refusing to deliver up, an article; or
• (g) doing or refusing to do any other act or thing of an administrative nature,
and a reference to a failure to take a decision must be construed accordingly.

‘empowering provision’ – a law, rule of common law, customary law, or an

agreement, instrument or other document in terms of which an administrative action
was purportedly take.

‘failure’ – a refusal to take a decision.

‘organ of state’ – it has an assigned meaning in terms of s 239 of the Constitution.

(1) Decision

• An action will qualify as administrative action when it takes the form of a

decision.

(2) Of an administrative nature

• An enquiry into the element “of an administrative nature” brings us to the

distinction between constitutional law and administrative law. Both
constitutional law and administrative law form part of public law and are
concerned with state governance, as well as the distribution and exercise of
public power.

2|Page
 • Constitutional law deals with the actions of and interaction between the organs
of state of the three branches of government: the Legislature, the Executive
and the Judiciary.
• Administrative law is concerned with only one branch of the state system,
namely the Executive.
• Constitutional law is concerned with the structure of the organs of state, as well
as with matters relating to the formulation of government policy (usually in the
form of legislation).
• Administrative law is concerned with the day-to-day implementation and
administration of this policy.

(3) Under an empowering provision

• This element underscores one of the most important features of administrative

law, which is the exercise of public power or the performance of a public
function must have an authoritative source of some kind. The decision must be
permitted by law.

(5) Adversely affects the rights of any person

• By including this element, the legislature’s intention was to create a restriction

to the reach of PAJA. Only when the action imposes a burden on someone,
will it qualify as administrative action.

(6) That has a direct, external legal effect

• This element is aimed at restricting the reach of PAJA. The inclusion of this
element was made to avoid challenges to administrative decisions without any
real impact.

3|Page
Action that does NOT qualify as administrative action

(7) … that is not specifically excluded by the list of nine broad categories of
exclusions mentioned in subparagraphs (aa) to (ii) of PAJA

(a) Executive powers and functions

• Powers and functions of the national, provincial, and local executives do not
qualify as administrative action. Those functions at the highest level which are
constitutional in nature are excluded.
• The President’s actions as head of state in the national sphere are excluded.
These powers are listed in s 84(2) of the Constitution and do not qualify as
administrative action.

(b) The legislative functions of Parliament, provincial legislatures and municipal

councils

• Legislative functions of Parliament, provincial legislature and municipal

councils are excluded. This exclusion is in line with the Fedsure CC judgment
where a distinction between legislation and administrative action was set out.
• Administrative law deals with the implementation of legislation and NOT with
the making of legislation through the exercise of original, deliberative law-
making powers, which is the functional area of constitutional law.

(c) The judicial functions of a judicial officer of a court

(d) Decisions under the Promotion of Access to Information Act 2 of 2000

(e) Decisions in terms of s 4(1) of PAJA

• Section 4 deals with the procedural fairness of administrative action when such
action affects the rights of the public.
• The effect of this exclusion to prevent review of the administrator’s discretion
to choose the particular procedure to follow before making a decision affecting
the public.

4|Page
 Judicial interpretation of administrative action

Administrative action is confined to decisions in terms of s 1 of PAJA. The legislature

provides us with a definition of a ‘decision’ and we must turn to this term. A decision
is confined to conduct of an administrative nature in terms of an empowering provision.

Prior to the adoption of PAJA, the CC let us know what does not constitute
administrative action rather than what is. Legislative action, powers exercised by the
President (when acting as head of state and exercising constitutional duties) does not
amount to administrative action.

Two leading judgments in this regard are President of the Republic of South Africa v
South African Rugby and Football Union; and Pharmaceutical Manufacturers
Association of South Africa: In re: ex parte President of the Republic of South Africa
CC judgments.

Constitutional instruction

Section 33 of the Constitution – Just administrative action

(1) Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action
has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must (a)
provide for the review of administrative action by a court, or where appropriate,
an independent and impartial tribunal; (b) impose a duty on the state to give
effect to the rights in ss (1) and (2); and (c) promote an efficient administration.

5|Page
5.2 THE NEED TO ESTABLISH WHETHER ADMINISTRATIVE ACTION IS
INVOLVED

It is important to determine exactly what administrative action is and whether

administrative action is involved in a particular situation. administrative action is the
entrance – literally the doorstep or threshold – requirement for the application of the
right to just administration action.

5.3 CLASSES OF ADMINISTRATIVE ACTION

Three classes of administrative action and the distinctive characteristics of each

(1) Legislative administrative acts

(2) Judicial administrative acts
(3) Administrative acts

(1) Legislative administrative acts

• Most easily recognised action of administration. They have a specific form and
are published in an official document such as the Government Gazette.
• General relationships are created, varied or ended by administrative legislative
acts.
• Specific rules apply to the adoption, repeal or amendment of all legislative
administrative acts.
• Power to delegate a legislative power only exists where it is expressly stated in
statutory authority.
• All acts must be within the framework of the authority given by the original Act.
The regulations may not conflict with any statute, be vague and unclear, or
restrict the provisions thereof.

6|Page
(2) Judicial administrative acts

• It is action that is almost like that of a court. It has a quasi-judicial character.

Similar to courts, administrators interpret and apply legal rules to disputes in
concrete situations through specialist bodies such as tribunals (e.g. the Film
and Publications Appeal Board).

(3) Administrative acts

• Here individual administrative law relationships are created and/or varied.

Administrative acts relate to the day-to-day business of implementing and
applying policy, legislation or an adjudicative decision.
• These acts include every possible aspect of government activity, such as
granting a license, promoting an employee, stamping a passport, etc.
• Police – the arrest of a suspect brings administrative acts into play as the police
conduct a very special form of authoritative action, which is subject to the law.
• Discretionary administrative acts – the decision maker has a wide discretion
of power and this means that the law leaves a large measure of freedom to the
decision-maker. A typical example is where you find “in his or her opinion” where
there is a statute, regulation or municipal by-law.

Separation of powers and three classes of administrative action

• Legislature – power to create, amend, or repeal legal rules.

• Judiciary – power to control both the legislative and executive authority through
interpreting legal rules, and applying them to concrete situations when legal
disputes are resolved.
• Executive – power to formulate policy, and then give effect to this policy through
the execution and administration of legal rules.

In administrative law, the key principle is “deference” which entails that courts should
show respect to the powers of the administrator; defer to the administrator when
assessing administrative decisions made by the administrator. The court must be

7|Page
cautious not to usurp the functions of the executive while at the same time it should
scrutinise its decisions in accordance with constitutional rights, rules and principles.

Department of Transport v Tasima (Pty) Ltd; Tasima (Pty) Ltd v Road Traffic
Management Corporation;1 and Merafong City Local Municipality v Anglogold Ashanti
Ltd 2
show the extent to which the justices differ on this principle; and the permitted
extent of judicial control over administrative conduct.

5.4 THE LEGAL FORCE OF ADMINISTRATIVE ACTION

The legal force of administrative action refers to the effect of such action in law. We
distinguish between the moment administrative action takes effect (i.e., becomes
operative or comes into force) and the point when the legal force of administrative
action is terminated.

When does administrative action take effect?

Legislative administrative acts

• It affects the individual as soon as the regulation or proclamation has been

promulgated and/or the stated date of commencement arrives.

Judicial administrative acts

• It takes effect as soon as the particular judicial institution – tribunal or board –

gives its ruling or delivers its judgment unless the statute provides for a period
in which an appeal may be lodged.

Administrative acts

• It takes effect upon the decision becoming known, either by publication or

announcement.

1
[2018] ZACC 21.
2
2017 (2) SA 211 (CC).

8|Page
 Termination of the legal force of administrative action

The legal force of administrative action is ended by –

• Repeal or revocation
• Amendment
• Lapse of time
• Withdrawal of one of the subjects to the relationship
• By court order.

When the administrator or organ of state cannot amend, repeal, revoke or vary its
decision, it is said to be functus officio (roughly translated it means “having completed
the task or duty; no longer functioning”). In other words, the matter has been finally
dealt with and the administrator or organ of state is no longer able to change his or her
or its mind and revoke, withdraw or revisit the decision. The organ of state has
discharged his or her official function, and he or she cannot re-examine or change the
decision afterwards.

It is important to establish when the organ of state will be functus officio.

Legislative administrative acts

• These acts may be repealed, revoked, or amended at any time. The power to
repeal or amend generally relates only to the future. The repeal may not be
retrospective effect.

Judicial administrative acts

• An administrative tribunal (such as the Refugee Appeal Board) is functus officio

once it has made its ruling, and cannot vary or revoke the decision.

9|Page
Administrative acts

• There must be a distinction between valid and invalid action.

Invalid administrative action – administrative action may be invalid for various

reasons (such as failing to meet the requirements). The administrator may alter or
withdraw any invalid administrative acts, as he would be rectifying defective action.
Should a person challenge the validity of the administrative act before a court or
tribunal, the authority cannot alter such act.

Invalid administrative act must be set aside by way of judicial review. The court in
Merafong held that an organ of state must challenge an unlawful (or invalid)
administrative act, without any unwarranted delay. In Kwa Sani Municiplaity v
Underberg/Himeville Community Watch Association,3 the SCA held that an
administrative body may not ignore one of its administrative acts if it is invalid. The
administrative body must approach a court to have the decision set aside.

Valid administrative action – we must distinguish between (1) onerous/burdensome,

(2) beneficial and (3) status-affecting administrative action.

• Onerous / Burdensome – these acts place a duty on the individual or prohibit

an individual from doing something or refusing to grant them a licence.
• Valid beneficial – these acts may be altered by the authority only where the
power to do so has been conferred expressly or by necessary implication.
• Status-affecting – the authority may not rescind or withdraw this decision
unless the revocation is authorised expressly or by necessary implication.

3
[2015] 2 All SA 657 (SCA).

10 | P a g e