Ch. 3 - Administrative action

Question 1

Why is administrative action important?

Answer 1

Its presence is decisive for the application of administrative law s33 and PAJA only apply to admin action.

Question 2

What is the preliminary question to any admin law inquiry?

Answer 2

Is there an administrative action?

Question 3

What two aspects iro the separation of powers does admin action have?

Answer 3

Institutional and functional aspects

Question 4

How should admin action theoretically be classified?

Answer 4

As executive, legislative, or judicial in nature.

- But, these are not completely distinct nor separate in practice, owing to checks and balances.

Question 5

With what is the executive function primarily concerned?

Answer 5

With the formulation of policy and the implementation of legislation.
- Executive functions are NOT automatically administrative actions

Question 6

What is the main function of the legislature?

Answer 6

The creation of legislation.

- Legislative acts do not qualify as admin action (it derives its power from the Constitution)

Question 7

How does the judiciary system differ from the executive and legislature?

Answer 7

The judiciary is a unitary system, whereas the executive and legislature are federal.

Question 8

With which branch os admin law largely concerned with?

Answer 8

With the activities of the executive branch, that is, the formulation of policy and the implementation of legislation.

Question 9

What is the dual nature of the executive?

Answer 9

1. The President and other members of Cabinet are primarily concerned with the formulation of policy
2. The public administration implements the policy as well as legislation
   - The distinction being that the executive as an institutional whole is not the more useful indicator of the presence of admin action; rather, the public administration is typically involved with the implementation of policy and legislation.

Question 10

What are the 4 branches capable of performing administrative action?

Answer 10

1. The ‘policy branch’
2. The public administration
3. The legislature
4. The judiciary

Question 11

Which case applies to admin action by the policy branch?

Answer 11

• Ed-U-College case
• Independent school challenged the annual subsidy formula by the MEC.
• The court found that the MECs determination of the formula amounted to admin action in that determination of the subsidy amounted to policy formulation in a narrow sense (ie. within a legislative framework)

Question 12

Which 2 cases relate to admin action by the public administration?

Answer 12

1. Gov. of RSA v Thabiso Chemicals: Tender Board cancelled contract; court found it did not amount to admin action
2. Earthlife v DG of Environmental Affairs: DG authorised Eskom to construct a reactor; court decided that this qualified as admin action.

Question 13

Which 2 cases relate to admin action by the legislature?

Answer 13

1. Fedsure Life Assurance case: Court found that enactment of legislation by an elected local council acting in accordance with the C is a legislative not admin act.
2. De Lille v Speaker of National Assembly: Court implied hat improper exercise of parliamentary privilege would activate the operation of the right to just admin action.

Question 14

Which 2 cases relate to admin action by the judiciary?

Answer 14

1. Le Roux v Honourable Magistrate: Court found that authorisation of search warrant was a judicial function; not admin action.
2. President of RSA v SARFU: CC acknowledged hat the court could perform administrative functions.

Question 15

Can any branch of the separation of powers perform admin action?

Answer 15

Ys, it is the NATURE of the function itself that is the critical consideration.

Question 16

Discuss the meaning of admin action within the phases of development of admin law

Answer 16

1. During the pre-constitutional period, admin law operated within the common-law tradition and a framework of parliamentary sovereignty. The power of judicial review under the common law derived from the courts’ inherent jurisdiction. The meaning of admin action was dominated by the question on the extent of the courts’ review powers over actions of the executive
2. The promulgation of the interim Constitution ushered in the constitutional period of admin law. The primary source of admin law was no longer the common law (but s24 of the int. C). Sec33 would only become operational once national legislation giving effect to the right to just admin action had been enacted.
3. In Feb 200, PAJA was promulgated (and become effective in Nov 2002). The Act introduced for the first time a statutory definition of admin action.

Question 17

Discuss admin action under the pre-constitutional period

Answer 17

• Governmental functions were classified for the purposes of judicial review.
• The term admin action was not the main criterion, emphasis was on the identity of the institution performing the function.
• Admin functions were categorised as: pure, legislative, judicial, or quasi-judicial.

Question 18

Discuss admin action during the pre-PAJA constitutional period

Answer 18

1. Sec33 provides that admin action must be lawful, reasonable and procedurally fair.
2. Even though the C established the centrality of admin action, it had left the concept undefined.
3. The right is not just to admin justice, but a right to just administrative action.
4. The operation of s33 is dependent on the presence of admin action.

Question 19

Discuss the SARFU judgment

Answer 19

1. The CC confirmed the predominance of a new approach to public power in this case - this case is central to the interpretation of s33 and the operation of admin law in general
2. Admin action is an incidence of the exercise of public power
3. The court notes that ‘the administration is that part of the gov which is primarily concerned with the implementation of legislation and that public admin forms part of the executive. Thus the INSTITUTIONAL and FUNCTIONAL nature of the public administration is clarified.
4. S33 is not a codification of the common-law principles. Thus, the C’s meaning of admin action is not limited to the common law.
5. Several factors can assist in determining whether an action is administrative:
   a. The power’s source, nature and subject matter;
   b. Whether the power relates to exercising a public duty, and whether the power can be associated more closely to policy matters or the implementation of policy.

Question 20

Discuss s84(2)

Answer 20

• It confers the listed powers on the President acting in the capacity of Head of State and not Head of Exeuctive.
• Head of State powers do not qualify as admin action, since they are ‘closely related’ to policy.

Question 21

What approach did SARFU confirm?

Answer 21

The functional approach in relation to the institutional approach.
- Thus, where any branch of state performs a public function, the identity or nature is not decisive for the application of public0law principles.

Question 22

Discuss the AAA Investments judgment

Answer 22

1. It illustrates the scope of the functional approach, which encompasses the activities of private entities too.
2. Minister of DTI issued an exemption notice
3. In the pre-constitutional era the nature of institutions and the way in which they exercised their power become relevant to determine judicial review
4. It is not necessary for the purposes of determining whether the legality principle applies, to decide whether the power is governmental
5. The purpose of the legislation was for regulation by the executive branch, therefore the function performed must be a public function

Question 23

Where is the definition of admin action found?

Answer 23

Sec 1(i) of PAJA.

• The courts have classified the definition as unwieldy.
• It is difficult to work with because a number of terms in the definition are defined separately in PAJA and the C.
• The general rule of statutory interpretation applies, which states that a term must be understood in its statutorily defined meaning unless it leads to injustice or absurdity.

Question 24

What are the 2 approaches to establishing whether particular action amounts to admin action?

Answer 24

1. The starting point is s33 of the C.

2. The starting point is the definition in s1 of PAJA and only then turn to s33 of the C.

Question 25

Discuss the case applicable to the “start with s33 of the C” approach

Answer 25

• Minister of Health v New Clicks (CC)
• Court stated that the starting point in determining whether PAJA is applicable is s33(1) of the C.
• The meaning of admin action must be determined by reference to s33 and not PAJA.
• Once it is determined that the exercise of the executive power authorised is admin action, the next question is whether PAJA excludes it.

Question 26

Discuss the case applicable to the “start with s1 of PAJA” approach

Answer 26

• Minister of Defence v Motau
• PAJA gives content to the right to just admin action in s33 of the C
• The role of s33 is secondary or a background one
• Where the def. of admin action under PAJA provides no interpretative difficulties, there would be no need to turn to s33.
  [The CC has previously made it clear that it is impermissible to rely on a constitutional right directly where specific legislation has been enacted to give effect to that right]

Question 27

What are the 7 elements identified by the CC as forming the definition of admin action

Answer 27

• In the case of Minister of Defence v Motau
  There must be -
  1. A decision of an administrative nature;
  2. BY an organ of state or a natural or juristic person;
  3. Exercising a public power or performing a public function;
  4. IN terms of any legislation or an empowering provision;
  5. That adversely affects rights;
  6. That has a direct, external legal effect; and
  7. That does not fall under any of the listed exclusions.

Question 28

Discuss ‘a decision of an administrative nature’

Answer 28

1. Sec 1(i) defines an admin action as a decision or failure to take a decision
2. It does not relate to steps that follow automatically from earlier conduct, even where such later steps may have legal consequences
3. The element of a decision implies a measure of finality in administrative action.
4. Admin law thus applies to an entire administrative process leading to a final decision as a whole. It does not apply in a piecemeal fashion.
   - This means that one cannot challenge the process in court before the final decision is taken.
5. The definition includes omissions as part of admin action. Thus, when an administrator does nothing it could constitute admin action.

Question 29

Discuss ‘what is administrative?’

Answer 29

• The courts have relied heavily on the meaning attributed to administrative action under s33.
• In Grey’s Marine Hout Bay case and in the Scalabrini case, the SCA aligned this part of the definition with the typical separation of powers exclusions from the ambit of admin law.
• These are primarily the legislative decisions of original legislatures, judicial decisions of courts and pure executive or policy decisions by the executive. None of these are administrative and are excluded.
• In Grey’s Marine Hout Bay the court stated that conduct of an administrative nature is generally “the conduct of the bureaucracy in carrying out the daily functions of the State, which necessarily involves the application of policy.

Question 30

Did the CC endorse the formulation of ‘administrative’ found in the Grey’s Marine case?

Answer 30

Yes, in the Motau case the CC endorsed this and held that this part of the definition fulfils two functions:

1. It requires a reviewing court to make a positive determination that the action complained of involves the exercise of public power ‘of an administrative character’
2. It indicates that a larger category of decisions are excluded from the definition than those listed in the exclusions.
   - Thus, the closer a decision is to the policy function of especially a politically elected official, the less likely it is that such decision will be of an administrative nature,

Question 31

What did the court state in Scalabrini?

Answer 31

That decisions heavily influenced by policy generally belong in the domain of the executive and the more a decision is to be driven y considerations of executive policy the further it moves from being reviewable under PAJA and vice versa.

Question 32

Discuss ‘by an organ of state or a natural or juristic person’

Answer 32

1. Admin action can be taken by public bodies or private entities
2. This confirms the functional approach, where the key question is what the nature of the function is that is being performed (rather than the institutional approach, which asks WHO is taking the action)
3. In the AAA Investments case the CC stated that the gov cannot be released from its human rights and rule of law obligations simply because it employes the strategy of delegating its functions to another entity.

Question 33

Discuss ‘exercising a public power or performing a public function’

Answer 33

1. The nature of the action stands at the core of the definition of admin action.
2. In the Chirwa case the CC confirmed that determining whether a power or function is ‘public’ is notoriously difficult.
3. In Chirwa the court (minority judgment) listed 4 factors that could give an indication:
   a. The relationship of coercion or power that the actor has in its capacity as a public institution;
   b. The impact of the decision on the public;
   c. The source of the power; and
   d. Whether there is a need for the decision to be exercised in the public interest
   - No single one of these factors will on its own determine whether a particular action is public, but may in combination point in one direction.
4. A decision will not necessarily be public in nature merely because the public has an interest in it.

Question 34

Discuss ‘ito a constitution, any legislation or an empowering provision’

Answer 34

1. Admin law also deals with delegated powers. Iow, the exercise of powers granted to the administrator by another authority in an instrument.

Question 35

Discuss ‘that adversly affects rights’

Answer 35

1. The most problematic of the elements of the definition.
2. In Greys Marine Hout Bay the court held that a literal interpretation of this element cannot be accepted. Rather, this element and the next (ie. direct, external legal effect) were intended to convey that admin action is action that has the CAPACITY to AFFECT legal rights. This position was confirmed by the CC in the Allpay case.
3. Thus, any impact on rights - whether negative or positive, will satisfy this element (Wessels case).
4. In the Joseph case it was indicated that the impact element of the definition of admin action should not be narrowly interpreted to refer only to private-law or common-law rights but also to public-law rights, which emerge from broad constitutional and statutory obligations placed on organs of state.

Question 36

Discuss ‘that has a direct, external legal effect’

Answer 36

1. It is common sense that a decision that has an adverse impact on rights will by implication have a direct, external legal effect.
2. A decision can be viewed as final it if manifests in a direct and external legal effect.
3. Thus, admin conduct that is wholly internal to the administration will not constitute admin action on its own, but only as part of the admin action that will emerge once a final decision is taken that has the requisite external effect.
4. A recommendation, even though it is still part of a larger multi-stage decision-making process, may on its own already have the necessary external effect to qualify as admin action.
5. In Greys Marine, the court held that an actual, external effect is not required. As long as the decision is aimed at generating such effect the present element will be satisfied - irrespective whether that effect eventually follows or not.

Question 37

Discuss ‘that does not fall under any of the listed exclusions’

Answer 37

1. There are 9 particular actions or action types that are expressly excluded from the definition of admin action. These are not subject to PAJA.
2. There are 2 main categories: The separation of powers exclusions (actions aa to ee) - these are executive, legislative or judicial actions; and pragmatic exclusions (actions ff to ii) - for practical reasons they are excluded from PAJA (even though they satisfy the first 6 reqs).
   3.