deck_16279055 Flashcards
The Elements of Administrative Action according to Section 1 of PAJA provides:
➢ Administrative action means any decision taken or any failure to take a decision by:
▪ An organ of State, when:
* Exercising a power in terms of the Constitution or a Provincial Constitution; or
* Exercising a public power or performing a public function in terms of any legislation; or
▪ 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 which has a direct, external legal effect.
The Act then lists nine specific exclusions from the definition LIST THE FIRST FIVE
➢ The first five consist of:
▪ The executive powers or functions of the national executive
▪ The provincial executive and a municipal council
▪ The legislative functions of Parliament
▪ A provincial legislature or a municipal council
▪ The Judicial functions of judicial officers and traditional
leaders.
* This approach is supported by cases such as:
Nel
Fedsure
SARFU
The Act then lists nine specific exclusions from the definition (The next 4 exclusions are a mixed bag consisting of:)
▪ A decision to institute or continue a prosecution
▪ A decision relating to any aspect regarding the appointment of a judicial officer by the Judicial Service Commission
▪ Any decisions in terms of PAIA
▪ Any decision taken, or failure to take a decision, in terms of Section 4(1) of PAJA.
The “narrowness” of the Definition
➢ In Grey’s Marine Hout Bay, the judge described the definition as cumbersome.
➢ The requirements and exclusions provide for a very narrow definition of administrative action under PAJA.
➢ The terms within the definition are themselves defined leading to an altogether complicated definition, consisting somewhat of
wheels within wheels
The Seven Elements listed
❖ A decision (or failure to take a decision)
❖ Of an administrative nature
❖ By an Organ of State or a natural or juristic person
❖ Exercising a public power or performing a public function
❖ In terms of any legislation (or in terms of an empowering provision)
❖ That adversely affects rights
❖ That has a direct external legal effect
❖ And that does not fall under any of the listed exclusions
❖ The South African Law Reform Commission conceived of administrative action, a definition in broad terms.
➢ It referred to ‘any act performed, decision take or rule or standard made, or which should have been performed, taken
or made’ by various actors.
The definition as provided by the SALRC adds two elements to the definition of a decision:
➢ The requirement of an “empowering provision.”
➢ The phrase “of an administrative nature.”
The SALRC definition is surprisingly inclusive because it includes:
➢ Decisions that are only proposed to be made.
➢ Omissions of all kinds.
➢ Includes retaining, or refusing to offer up an article
▪ Sibiya v Director-General: Home Affairs
- It was argued that where an identity document had been issued but not actually delivered to an applicant, this scenario fell outside the definition of administrative action
❖ Formal or Clerical Acts as an Act that may not involve a decision
➢ Nedbank Ltd v Mendelow NO
▪ The Supreme Court of Appeals held that certain acts of the Master and Registrar of Deeds did not amount to administrative action as they were of a purely mechanical nature and entailed no choice or evaluation
Pheniti v Minister of Education as an Act that may not involve a decision
➢ Pheniti v Minister of Education
▪ This is a deeper analysis than in my original notes pack.
▪ The court assumed a technical analysis of deemed discharge.
▪ Deemed discharge is when someone is automatically fired exlege (by operation of law) when they have been absent from work for a certain period of time, unless the employer directs otherwise.
▪ This case is criticized for several reasons but most importantly:
* There was still a decision not to allow them to stay (so the idea that there is no decision doesn’t really make sense).
* This is in tension with Constitutional Values and such a technical approach was rejected in the Armbruster case which dealt with forfeiture of currency (see my main set of notes)
➢ Grootboom as an Act that may not involve a decision
▪ The court easily accepted deemed discharge in the employment context.
Preparatory Conduct as an Act that may not involve a decision
➢ Preparatory Conduct does not generally have an adverse effect on rights and therefore it is excluded from administrative action
Case law on preparatory steps
Offit Enterprises v Coega
▪ The SCA made it clear that the PAJA does not encompass future administrative action in the sense of ‘something that has not yet happened and may not ever happened, and if it does happen, may take place in a different legislative
and economic environment.
Administrative Rule Making as an Act that may not involve a decision
➢ New Clicks
▪ The Constitutional Court did not rule that administrative rule making constituted a decision in terms of PAJA.
▪ Chaskalson, as an individual judge, wrote in his dictum that it could be considered Administrative Action.
▪ Other courts have gone on to rule that it IS administrative action.
▪ The Constitutional Court remains undecided