Hoexter chapter 3

Question 1

The Elements of Administrative Action according to Section 1 of PAJA provides:

Answer 1

➢ 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.

Question 2

The Act then lists nine specific exclusions from the definition LIST THE FIRST FIVE

Answer 2

➢ 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

Question 3

The Act then lists nine specific exclusions from the definition (The next 4 exclusions are a mixed bag consisting of:)

Answer 3

▪ 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.

Question 4

The “narrowness” of the Definition

Answer 4

➢ 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

Question 5

The Seven Elements listed

Answer 5

❖ 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

Question 6

❖ The South African Law Reform Commission conceived of administrative action, a definition in broad terms.

Answer 6

➢ 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.

Question 7

The definition as provided by the SALRC adds two elements to the definition of a decision:

Answer 7

➢ The requirement of an “empowering provision.”
➢ The phrase “of an administrative nature.”

Question 8

The SALRC definition is surprisingly inclusive because it includes:

Answer 8

➢ Decisions that are only proposed to be made.
➢ Omissions of all kinds.
➢ Includes retaining, or refusing to offer up an article

Question 9

▪ Sibiya v Director-General: Home Affairs

Answer 9

• 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

Question 10

❖ Formal or Clerical Acts as an Act that may not involve a decision

Answer 10

➢ 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

Question 11

Pheniti v Minister of Education as an Act that may not involve a decision

Answer 11

➢ 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)

Question 12

➢ Grootboom as an Act that may not involve a decision

Answer 12

▪ The court easily accepted deemed discharge in the employment context.

Question 13

Preparatory Conduct as an Act that may not involve a decision

Answer 13

➢ Preparatory Conduct does not generally have an adverse effect on rights and therefore it is excluded from administrative action

Question 14

Case law on preparatory steps

Answer 14

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.

Question 15

Administrative Rule Making as an Act that may not involve a decision

Answer 15

➢ 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

Question 16

Miscellaneous non-decisions

Answer 16

➢ Mzamba Taxi Owners Association
▪ An endorsement of an agreement between minibus taxi associations by a provincial tax registrar did not amount to administrative action under PAJA.

Question 17

Investigative Action as “Of an Administrative Nature”

Answer 17

➢ Reformed Presbyterian Church
▪ Held that a decision of the South African Police Service to file a docket, and thus to suspend and investigation, was administrative in nature but did not, on the facts of the case, have a direct and external legal effect.

Question 18

Public Procurement as “Of an Administrative Nature”
(Umfolozi Transport)

Answer 18

▪ The awarding of a state tender amounted to administrative action.

Question 19

Public Procurement as “Of an Administrative Nature”
(Transnet v Goodman Brothers)

Answer 19

▪ The same court extended the reasoning in Umfolozi to calling for and adjudicating tenders. Here the court rejected an argument that the appellant was acting in a private-law capacity in calling for offers and accepting one of them, and
majority and minority alike held that in doing so Transnet exercised public powers and performed public functions in the
public interest.
▪ Its actions were thus administrative

Question 20

Public Procurement as “Of an Administrative Nature”
(Logboro)

Answer 20

▪ Whether the tender process amounts to administrative action will be determined on a case by case basis, as in this case it was deemed to be a private contractual matter falling outside
the realms of administrative action.

Question 21

Public Procurement as “Of an Administrative Nature”
(Nambiti)

Answer 21

▪ This case considerably narrows the scope for arguing that cancellation of the tender process amounted to administrative action.

Question 22

Public Procurement as “Of an Administrative Nature”
(C & M Fastners v Buffalo City Metropolitan Municipality)

Answer 22

Distinguished Nambiti and found that the cancellation of the tender in that case constituted administrative action in
circumstances where the municipality’s only basis for cancelling was it finding that there were no complaint tenders which, in turn, flowed from its irregular finding thatthe applicant’s tender was non-responsive.

Question 23

Licensing

Answer 23

Lebowa Granite
▪ The award of a mining license to one of several applicants as analogous to a tender, and thus as administrative action

Question 24

Public Sector Employment Decisions

Answer 24

Transvaal v Zenile and Administrator, Natal v Sibiya

Chirwa

Question 25

Transvaal v Zenile and Administrator, Natal v Sibiya

Answer 25

▪ Extended administrative law protections to employees in the public sector in pre-constitutional South Africa.

Question 26

Chirwa

Answer 26

▪ The Constitutional Court ruled that administrative law protections did not extend to Public Sector Employees as it would give them an unfair advantage over private sector
employees.

Question 27

Def of “Made under an empowering provision”

Answer 27

❖ The definition is expansive, including:
➢ A law
➢ A rule of common law
➢ A rule of customary law
➢ An agreement, instrument or other document in terms of which
an administrative action is purportedly taken.

Question 28

Defective Administrative Action

Answer 28

➢ Marais v Democratic Alliance
▪ The court ruled that due to the party acting ultra vires they lacked an empowering provision and therefore it was not administrative action.
▪ This appeared to limit review of administrative action to lawful administrative action.

➢ Kirland
▪ Corrected for Marais.
▪ A defective decision remains a decision until it is reviewed and set aside.

Question 29

General approach when Distinguishing between Public and Private Power

Answer 29

➢ The test is an open ended one, and it is not definitive.
➢ The court will simply consider a range of factors, none of which are determinative but which require the court to exercise a discretion.
➢ The General Test therefore considers the following factors:
▪ The relationship of coercion or power that the actor has in its capacity as a public institution
▪ The impact of the decision on the public
▪ The source of the power
▪ Whether there is a need for the decision to be exercised in the public interest

Question 30

Core Public Powers and Functions

Answer 30

➢ These are clearly public in nature.
➢ These include:
▪ The formulation and implementation of policy.
▪ The preparation of primary legislation
▪ Executive rule making
▪ Regulatory decision making
▪ Law enforcement
▪ The provision of public services (Joseph case)

Question 31

Power exercised by public bodies in a private-law setting

Answer 31

➢ Cape Metro
▪ The Supreme Court of Appeal held that the cancellation of a contract between and municipal council and a private firm was not administrative action.
▪ The principle to keep in mind is that just because a government body does something, it doesn’t make it public in nature. Consider that where a public body acts in a private
setting, such as a party to a commercial contract, it is of a private nature.
▪ Focus mainly on an empowering provision. If there isn’t one (like there would be for tenders) then it is more likely private than public.

Question 32

Private Bodies Exercising Public Powers
(What do examples include?)

Answer 32

Examples include:
▪ Government outsourcing or subcontracting.
▪ Power underpinned by statute or governmental compulsion.

Question 33

Case law on Private Bodies Exercising Public Powers

Answer 33

Constitutional Court considered whether the
rulemaking of the Micro Finance Regulatory Council, a private body, amounted to the exercise of a public function.

They ruled that it was, because it amounted to
delegation of the Minister’s regulatory power and because the legislative framework in substance conferred coercive power on the council.
▪ Private Bodies Wielding Regulatory Power

Question 34

Private Bodies Exercising Public Power

Answer 34

➢ Ndoro v SAFA
▪ This case reminds us that there is no warrant to conclude that simply because a private entity is powerful and may do things
of great interest to the public, it discharges a public power or function.
▪ These powerful actions amount to commercial power and are reviewable under common law or legislation regulation but not administrative law

Question 35

List examples of decisions in Ndoro case

Answer 35

• Dictating commercial terms to customers
• Decisions at a Annual General Meeting of Shareholders
• Decisions of a Board of a Pension Fund
• Decision of a curator bonis to sell immoveable property.
• Conduct of Independent (private) schools