Administrative Action

Question 1

The Definition of Administrative Action as per section 1 of PAJA

Answer 1

v A decision
v Of an administrative nature
v By and Organ of State or natural or juristic person
v Exercising a public power or performing a public function
v In terms of the Constitution, legislation or other empowering
provision
v That adversely affects rights
v Has direct, external legal effect
v But does not fall within the listed exclusions

Question 2

What is a decision?

Answer 2

v Section 1 of PAJA says a decision includes the following:
* Active Giving of Something
* Permissions
* Permission Document
* Limitations
* Demands
* Failing to Perform

Ø doing or refusing to do any other act or thing of an administrative
nature

Question 3

Bhugwan v JSE Ltd 2010 (3) SA 335 (GSJ)

Answer 3

1) Final application, request or claim
2) An investigative process
3) Evaluative process
4) Final decision through the exercise of statutory or public power

Question 4

Acts that do not involve a decision

Answer 4

Formal or clerical acts
Operation of Law
Administrative rulemaking
Investigative Actions
Preparatory steps

Question 5

Cases on formal/clerical acts

Answer 5

Gamevest (Pty) Ltd v Regional Land Claims Commissioner
Ø Kuzwayo v Representative of the Executor of the Estate of the Late Masilela
Ø Plover’s Nest Investments (Pty) Ltd v De Haan
Ø Maleka v Health Professions Council of South Africa

Question 6

Decision in Gamevest case

Answer 6

Mere receipt of a land claim is not administrative action

Question 7

Decision in Kuzwayo case

Answer 7

Signing of a declaration to convert a site permit to the right of ownership and signing deed of transfer

Question 8

Decision in Plover’s nest investment case

Answer 8

Clerical error in a letter is not administrative decision

Question 9

Decision in Maleka case

Answer 9

§ Clerical error removing member from register of practitioners is administrative action within PAJA.
§ This is because there is not decision, it is an exception because the mistake is so egregious that it constitutes administrative action anyway.

Question 10

Case law on Operation of Law

Answer 10

Ø Minister van Onderways en Kultuur v Louw
Ø Phenithi v Minister of Education
Ø Maswanganyi v NPA and Grootboom
Ø Armbruster And Another V Minister Of Finance And Others 2007 (CC)

Question 11

Ø Minister van Onderways en Kultuur v Louw

Answer 11

§ Termination of employment under ‘deemed discharge’ provisions is not administrative action.
§ Deemed discharge not a decision
§ Because à Decision = conduct involving exercise of discretion, when a choice is made between 2 or more equally legitimate possible options, as opposed to conduct occurring merely by operation of law

Question 12

Phenithi v Minister of Education

Answer 12

Same as Kultuur

Question 13

Compare with Maswanganyi v NPA and Grootboom

Answer 13

§ Courts generally reluctant to treat labour matters under PAJA
§ Reversal of termination of employment by operation of law
when essential jurisdictional facts fell away

Question 14

Armbruster And Another V Minister Of Finance

Answer 14

§ Does forfeiture of currency by operation of law constitute administrative action.
§ The Court held that, according to the regulations, the currency was not forfeited immediately upon seizure.
§ So because not immediate, and requiring decision of the officers, it is was not operation of law.
§ If it was operation of law, then it would not be administrative action

Question 15

New Clicks case on administrative rule making

Answer 15

“Of an administrative nature” encompasses regulation making within the scope of the definition of ‘decision’, read with S 4 of PAJA.

High Court says regulations do not constitute
administrative action.
§ BUT compare that with the Constitutional Court with dictum by Chaskalson:
* Regulations could constitute administrative action

Question 16

¨ Esau And Others V Minister Of Cooperative
Governance And Traditional Affairs

Answer 16

Endorses idea that regulations could constitute admin action

Its supported by:
* City Of Tshwane Metropolitan Municipality Cable City
* Minister Of Health And Another V Alliance Of Natural Health Products

Question 17

General rule on investigative actions

Answer 17

§ Preliminary steps such as investigations do not constitute decisions AND investigations do not adversely affect any rights

Question 18

Case law on Investigative actions

Answer 18

§ Bernstein And Others V Bester No And Others (Cc) (1996)
.
§ Competition Commission Of Sa V Telkom Sa Ltd And Others (Sca) (2009)

Question 19

Bernstein And Others V Bester

Answer 19

An investigation is not administrative action since it determines facts and is not a final decision

Question 20

Competition Commission Of Sa V Telkom Sa Ltd And Others

Answer 20

• Decision to refer matter to Competition Tribunal and referral itself = investigative in nature, thus not admin action.
• Investigations do not adversely affect any rights

Question 21

Other Administrative Acts

Answer 21

§ Mzamba Taxi Owners’ Association V Bizanza Taxi Association

§ Emakhasaseni Community V Minister of Rural Development

Question 22

§ Mzamba Taxi Owners’ Association V Bizanza Taxi Association

Answer 22

• Endorsement of voluntary agreements between minibus
  taxi associations and provincial taxi registrar – not administrative action.

Question 23

Emakhasaseni Community V Minister of Rural Development

Answer 23

Notice to landowners setting out amount of compensation calculated by Office of Valuer-General = not administrative action

Question 24

Case law on Preparatory Steps

Answer 24

v Competition Commission V Yara (SCA) (Pty) Ltd 2013 (Sca)

v Commissioner: Sars V Brown

v Offit Enterprises (Pty) Ltd V Coega Development Corporation 2010
(SCA)

Question 25

Competition Commission V Yara

Answer 25

Ø Preparatory steps in an investigative process do not constitute administrative action

Question 26

Commissioner: Sars V Brown

Answer 26

Request by SARS by lifestyle questionnaire is a preliminary investigation and does not amount to administrative action
Ø BUT compare with Weir-Smith No V Master Of Hcsa, Gauteng Division, Pretoria [2020] Zagpphc: Decision to compel trustees to deliver range of documents under constituted admin
action

Question 27

Offit Enterprises

Answer 27

Ø PAJA does not encompass future admin action in the sense of ‘something that has not yet happened and may not ever happen,
and if it does happen, may take place in a different legislative and economic environment.
Ø Nor could it be argued that officials had ‘failed to take an expropriation decision, the possibility of which they were blissfully unaware until litigation commenced.

Question 28

Grey’s Marine Hout Bay v Minister of Public Works

Answer 28

‘of an administrative nature’ means:
§ The conduct of the bureaucracy in carrying out the daily functions of the State, which necessarily involves the application of policy, usually after its translation into law.

Question 29

Case Law (If there is any question on ‘administrative nature’

Answer 29

Sokhela v MEC for Agriculture and Environmental Affairs

New Click Case (Regulation making)

Grey’s Marine Hout Bay v Minister of Public Works (Bureaucracy)

Question 30

Sokhela v MEC for Agriculture and Environmental Affairs

Answer 30

In deciding whether a decision is one of an administrative nature the appropriate starting point is to determine whether it would constitute administrative action within the meaning of s 33 of the Constitution.

Ø The boundaries between administration action and other forms of conduct by organs of state will often be difficult to draw.

Ø Thus, it is done on an ad-hoc basis

Ø The requirement of administrative nature demands that a detailed analysis be undertaken of the nature of the public power or public function in question to determine its true character.

Ø Thus, there is no mechanical process by which to determine whether a particular exercise of public power or performance of a public function will constitute administrative action

Question 31

Overview of “By an Organ of
State”

Answer 31

v The requirement that decisions be made by an Organ of State or person exercising public power or performing a public function.
v Decisions can be taken by public or private entities.
v PAJA definition of “organ of State” refers back to Constitution section 239 which includes private entities performing public
functions

Question 32

Section 239 Constitution

Answer 32

v Any department of state or administration in the national, provincial or local spheres of government;
v Or any other functionary or institution:

Ø Exercising a** power or performing a function** in terms of the Constitution or a provincial Constitution; or

Ø Exercising a public power or performing a public function in terms of any legislation

Ø But does not include a court or a judicial officer

Question 33

Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange

Answer 33

Ø Non-statutory bodies under a duty to act in the public interest.

Question 33

Private Entities Exercising Regulatory Powers cases

Answer 33

v Dawnlaan Beleggings (Edms) Bpk

v Cronje

v Ndoro

v Coetzee

v Brandhouse Beverages

Question 34

v Cronje v United Cricket Board of South Africa

Answer 34

Ø Voluntary bodies not exercising public power.

Question 35

v Ndoro v South African Football Association

Answer 35

Ø Do sporting bodies exercise public powers?

Question 36

v Coetzee v Comitis

Answer 36

Ø The National Soccer League performs a public function and must act in the public interest.

Question 37

v Brandhouse Beverages (Pty) Ltd

Answer 37

Ø ASA decisions are admin action – voluntary association but still official regulator of ad industry must thus act in public interest.

Question 38

Political Parties (Cases)

Answer 38

Dube v Zikalala
Marais v Democratic Alliance
Van Zyl v New National Party

Question 39

elaborate on each of the political parties cases

Answer 39

Dube v Zikalala
Ø Generally, decisions of political party’s not administrative action.
Private, voluntary.

v Marais v Democratic Alliance
Ø There is a public interest in the decisions of political parties, but they are not administrative action.

v Van Zyl v New National Party
Ø The decision to recall a delegate at the National Council of Provinces does not amount to administrative action.

Question 40

Removal of a person from an approved panel (Case)

Answer 40

Motala v Master

Decision to remove a person from an approved panel was upheld

Question 41

Public Protector and Auditor General

Answer 41

Minister of Home Affairs v Public Protector
Ø Remedial action of the Public Protector does not constitute administrative action.

MEC for Economic Opportunities, WC v Auditor-General
Ø Decision of the AGSA amounts to administrative action – Auditor-General forms part of the public administrations; its function is to administer and it does not have broad discretionary powers
Ø However, when this matter was taken to the SCA it was ruled as NOT being administrative action.
Ø FOR TEST PURPOSES, mention both.

Question 42

A decision must be made under an empowering provision

Answer 42

Marais v Democratic Alliance
Ø Under a law, rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action.
Ø But ‘instrument’ does not seem to cover those of a contractual nature.
Ø Ultra vires decisions do not constitute administrative action because they lack an empowering provision.

Kirland Investments
Ø A decision is binding until set aside.

M & G Media Ltd v 2010 FIFA World Cup Organising Committee South Africa
Ø In terms of legislation ‘capable of meaning something wider than functions specifically authorised by legislation, and could thus encompass functions performed ‘in accordance with legislation.’

Question 43

Exercising public power or performing a
public function

Answer 43

President Of RSA And Others V South African Rugby Football Union And Others
In determining whether it is an administrative action, consider function performed rather than which functionary performs an action
v It does not matter who is doing it, but the nature of what is being done

Question 44

Supporting Cases on Exercising
public power or performing a public function

Answer 44

AMCU v Chamber of Mines of South Africa
v The predominant focus is on the nature of the power being exercised. The question is not so much who exercises the power, nor
even where does the power come from: but what does the power look and feel like? What does it do?

AAA Investments (Pty) Ltd
Focus is on whether power or function is public and not to equate this with whether or not the power or function is governmental.

City Power (Pty) Ltd
v There is a performed public function in distributing electricity to the local community if it was a private company established by the City of Johannesburg.
v So the government established the company to perform the public power by proxy. Therefore, it is a public function.

Question 45

Can Parliament perform administrative action?

Answer 45

v De Lille v Speaker

Ø The court did not seek to dictate to Parliament; it could not have done so.
It recognised the separation of powers and its desirability, as well as that the proper exercise of parliamentary privilege was a matter for Parliament alone.
Where, however, the court can and must interfere is where Parliament has improperly exercised that privilege and acted mala fide or capriciously and in defiance of the constitutionally inherent rights of a Member, such as the right to just administrative action.

Ø Therefore, it appears that Parliament cannot exercise administrative action because Acts of Parliament are excluded
under PAJA.

Question 46

Licensing (Does it Constitute Administrative Action)

Answer 46

Lebowa Granite (Pty) Ltd
Ø Awarding a licence to one amid application by many is similar to the award of a tender.

Maimela
Ø Refusal to grant a firearm licence?

Magingxa
Ø Revocation of a firearm licence
v PAJA Definition

Ø Issuing, suspending, revoking, or refusing to issue a license, authority or other instrument; or (Permission Document)

Ø Use this to answer the questions posed in case law.

Question 47

Powers exercised by public bodies in a private setting

Answer 47

Cape Metropolitan Council v Metro Inspection Services
Ø Cancellation of contract under common law. Municipality not exercising public power.

Tlokwe Local Municipality v Gqweta
Ø Public power not engaged when a municipality cancels a tender?

Associated Portfolio Solutions (Pty) Ltd v Basson
Ø Private financial service provider wielded public power when it exercised its authority under S 14(1) of Financial Advisory and
Intermediary Services Act 37 of 2002

v Mobile Telephone Networks (Pty) Ltd v SMI Trading
Ø Decision by the licensee to invoke S 22 of Electronic Communications Act 36 of 2005 was public and constituted administrative action.

Question 48

Ø Harvey v Umhlatuze Municipality

Answer 48

Ø The applicant had no right to reclaim and repurchase properties that had been expropriated from him for a particular purpose and which the municipality now intended to use for a new purpose by disposing of them en block.

Question 48

v A decision that adversely affects rights

Answer 48

Ø Harvey
Ø The applicant had no right to reclaim and repurchase properties that had been expropriated from him for a particular purpose and
which the municipality now intended to use for a new purpose by disposing of them en block.

Ø Earthlife Africa
§ Ministerial determines that 9600MW of new generation
capacity would be sourced from nuclear energy adversely affected the rights of non-nuclear power producers.

Ø Airports Company South Africa
§ No rights adversely affected.
§ In terms of investigations

Question 49

Earthlife Africa v Minister of Energy

Answer 49

§ Ministerial determines that 9600MW of new generation capacity would be sourced from nuclear energy adversely affected the rights of non-nuclear power producers.

Question 50

Airports Company South Africa v ISO Leisure

Answer 50

§ No rights adversely affected.
§ In terms of investigations.

Question 51

Ø TIPS:
Ø LAW TO BE APPLIED for “A decision that adversely affects rights”

Answer 51

Remember to apply your mind and make a value judgement.
§ Section 33(2) of Constitution à Where there is an adverse effect by administrative action, reasons must be given.
§ Section 3 of PAJA (Individual) à If material and adverse
then it must be procedurally fair.
* Unless it has a trivial effect.
§ Section 4 of PAJA (Public) If material and adverse then it
must be procedurally fair.
* Unless it has a trivial effect.
§ Competition Commission of SA v Telkom
* Investigations do not adversely affect rights
§ Harvey v Umhlatze
§ Earthlife Africa

Question 52

Has a direct, external legal effect
Ø LAW TO BE APPLIED

Answer 52

• Grey’s Marine Hout Bay
• Joseph and Others v City of Johannesburg and Others

Oosthuizens Transport

Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa
v Hidro-Tech Systems (Pty) Ltd and Another

Question 53

• Grey’s Marine Hout Bay
• Joseph and Others v City of Johannesburg and Others

Answer 53

It seems to be common sense that a decision which has an adverse impact on rights will by implication also have a direct, external legal effect

Question 54

Oosthuizens Transport (Pty) Ltd and Others v MEC, Road Traffic Matters, Mpumalanga and Others

Answer 54

¨ Just because action might still follow, but hasn’t happened yet, doesn’t mean there isn’t administrative action.
¨ In this case there was a recommendation to suspend, based on an investigation but the suspension didn’t happen yet.
¨ Court said this was enough and that not all
recommendations lack the requisite finality for it to be administrative action.
¨ Also held that an actual direct, external legal effect is not required (following the Grey’s Marine Hout Bay case).
As long as the decision is aimed at generating
such effect the present element will be satisfied,
irrespective of whether that effect eventually follows or not.

Question 55

Viking Pony Africa Pumps

Answer 55

Ø Regarding investigations. Investigation alone is
not administrative action, but a recommendation in terms of it which highlights
culpability may be.

Question 56

TIPS FOR APPLYING TO FACTS

Answer 56

§ Apply a value judgement.
§ Investigation only à No direct external legal effect.
§ Recommendation made in terms of investigation à Could have direct external legal effect + Administrative Action.
§ Apply the logic of:
* Adverse effect = Direct external legal effect

Question 57

Nature of the Function

Answer 57

You must consider in any analysis:
v The source of the power
v The nature of the power
v Subject matter at hand
v Whether power relates to exercising a public duty
v Whether the power is closer to a policy matter or implementation of legislation
v Whether need for a decision to be made is in the public interest

Question 58

Excluded from the meaning of
administrative action

Answer 58

a) Executive powers or functions of the National Executive,

b) Executive powers or functions of the Provincial Executive,

c) The executive powers or functions of a municipal council

d) Legislative functions of Parliament, provincial legislature or a municipal council

e) Judicial functions of a judicial officer of a court or special tribunal of the SIU and Tribunals Acts

f) Judicial functions of a traditional leader under customary law or any other law

g) A decision to institute or discontinue a prosecution

h) Decision regarding the nomination, selection or appointment of persons by the Judicial Service Commission

i) Decision taken, or failure to take a decision in terms of section 4(1) of PAJA