Lawfulness as a Standard of Just Administrative Action Part 1: Introduction and the ‘What’ Question

Question 1

whats the key aim of lawfulness?

Answer 1

to keep administrators within the
bounds of their authority

considers them ultra vires as soon as they start acting outside the bounds of their authority

Question 2

explain the relation between lawfulness and admin action

Answer 2

Lawfulness is the first of the three requirements of administrative justice in section
33 of the Constitution

Question 3

What’s the requirement of lawfulness?

Answer 3

the statement in the administrative law of the
principle of rule of law

Question 4

what does the principle of law state?

Answer 4

everyone, including the state, is subject
to the law, and all public power is derived from law.

Question 5

whats the effect of the complete overlap between the lawfulness standard for just administrative action(reviewed through PAJA) and the lawfulness standard for the exercise of public power that does not amount to administrative action (reviewed through the avenue of legality)

Answer 5

cases dealing with non-administrative action (where someone challenges a decision) can help illustrate what it means for administrative action to be lawful. In other words, these cases help explain the standards for fairness and legality in administrative decisions.

Question 6

Explain authorisation as the basic requirement for admin action

Answer 6

The PAJA section 1 definition of ‘administrative action’ indicates that there must be a
source for an administrator’s decision.

Definition of Administrative Action:
Administrative action refers to 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.
Exercising a public power or performing a public function in terms of any legislation.
A natural person 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.

Question 7

Whats the def of organ of state ito s239 of Constitution?

Answer 7

(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function 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, but does not include a court or judicial officer.

Question 8

describe the enquiry into the lawfulness of administrative action

Answer 8

The enquiry into the lawfulness of administrative action entails two parts:
(i) There must be a valid authorisation in an empowering provision; and
(ii) The administrative action taken must be aligned to, or overlap with, the
authorisation in the empowering provision

Question 9

whats does the basic lawfulness inquiry entail?

Answer 9

It entails comparing the administrative action with elements of the authorisation conferred by the empowering provision to determine
the extent of their alignment.

Question 10

General rule on authority granting admin power to act.

Answer 10

In general, administrators must act in terms of the correct empowering provision.

Ø Where an administrator deliberately and expressly purports to act in terms of an empowering provision that does not authorise
them to take the particular action, they will act unlawfully, even if there is another empowering provision that could have
authorised the particular action.

Question 11

Explain the effect of the alignment of the comparison of the admin action with elements of authorisation on determining lawfulness.

Answer 11

If the administrative action aligns with the elements of the authorisation conferred by
the empowering provision, then the administrative action is lawful

If the administrative action does NOT align with the elements of the authorisation
conferred by the empowering provision, then the administrative action is unlawful

Question 12

What are the questions that determine the various elements of the authorisation conferred by the empowering provision?

Answer 12

(i) What was authorised?
(ii) Who was authorised?
(iii) How did the authorisation prescribe the action to be taken?

Question 13

What are the important sub questions that should be considered when examining what an administrator is empowered to do?

Answer 13

• How much discretion does the empowering provision confer upon the administrator?
• Is the empowering provision mandatory or
  permissive?
• What power is expressly conferred by the empowering provision and what power might be
  impliedlyconferred?
• What is the purpose of the empowering provision?
• Is the administrator required to act in terms of the empowering provision within a prescribed
  time period or, if not, within a reasonable time?
• Once the administrator has taken the decision, are they empowered to change their minds and
  vary their decision?

Question 14

What is the primary role of the lawfulness standard where the empowering provision grants a wide discretion to the administrator?

Answer 14

primary role of the lawfulness standard is to ensure that:
(i) the administrator does in fact have a discretion (i.e. the discretion is not curtailed)

(ii) exercises a discretion when taking the action.

Question 15

The What Question: What is an Administrator Authorised to Do?

Answer 15

Primarily reflected in S 6(2)(f)(i) which states:
§ A court or tribunal has the power to judicially review an
administrative action if the action itself:
* Contravenes a law; or
* Is not authorised by the empowering provision

Question 16

Exception to the Rule of using the Correct Empowering Provision

Answer 16

Ø Where the administrator acted beyond the express power
conferred by an empowering provision:
§ If is another possible empowering provision in terms of
which the particular action would have been authorised; and
§ The administrator’s reliance on the wrong provision was a
bona fide error, then the administrator may be entitled to
rely, after the fact, on the correct empowering provision

Question 17

What the general rule on acting on the correct empowering provision?

Answer 17

Ø Where the authorisation flows from more than one empowering
provision and the administrator deliberately and expressly relies on an empowering provision that does not authorise the
particular action the administrator acts unlawfully.

Question 18

Minister of Education v Harris (what is authorised)

Answer 18

Ø Facts:
§ Section 3(4) of the National Education Policy Act 27 of 1996 authorised the Minister of Education to:
* Determine national policy for the education system,
including national policy for the admission of students to
education institutions which shall include the determine
of the age of admission of schools.
§ The Minister of Education, in terms of this provision:
* Published a notice stating that a learner must be admitted
to Grade 1 in the year that he or she turns seven and may not be admitted at a younger age.

Decision:
§ Question of whether the action taken by the Minsiter aligned with what he was authorised to do in terms of the empowering provision was posed.
§ Court ruled that it did not align because the notice which was published amounted to a binding legal rule and not a
policy.
* The empowering provision allowed him to determine
national policy.
* He was not empowered to make binding legal rules.

REMEMBER
§ The case was decided in terms of the principle of legality and
not in terms of PAJA.
§ Had it been decided in terms of PAJA, it would have been
reviewable under sections:
* S 6(2)(a)(i); and/or
* S 6(2)(f)(i)

Question 18

What does the WHAT question deal with?

Answer 18

It deals with the nature and scope/extent of the authorisation

Question 19

What does the answer to the WHAT question mainly address?

Answer 19

§ The specific substance of the authorised action
§ The time and place at which the action may be taken
§ The reason/purpose for which the action may be taken

Question 20

NB sub questions that should be asked for the what question

Answer 20

How much discretion does the empowering provision confer
upon the administrator? Does the empowering provision
confer a broad or narrow discretion upon the administrator?
§ Is the empowering provision mandatory (setting out
something the official must do) or permissive (setting out
something the official may do)?
§ What power is expressly conferred by the empowering
provision and what power might be impliedly conferred?
§ What is the purpose of the empowering provision?
§ Is the administrator required to act in terms of the empowering
provision within a prescribed time period or, if not, within a
reasonable time?
§ Once the administrator has taken the decision, are they
empowered to change their minds and vary their decision?

Question 21

Whats the primary role of the lawfulness standard where empowering provision grants a wide discretion to the administrator?

Answer 21

It ensures that is to
ensure that:
§ The administrator does in fact have a discretion; and
§ Exercises discretion when taking the action.

Question 22

What are the limits of the wide discretion given to the administrator by empowering provision

Answer 22

The wide discretion of the administrator does not mean that the
administrator may make any choice.
§ The choice must align with the purpose or reason that is
authorised by the empowering provision.
§ Administrators are bound to act in accordance with the
purposes envisaged in the relevant empowering provisions.

Question 23

PAJA’s Recognition of Purpose For Which the Action is Taken

Answer 23

Ø S 6(2)(e)(i);
§ For a reason not authorised by the empowering provision.

Ø S 6(2)(e)(ii);
§ The action was taken for an ulterior motive or purpose.
* A motive that is improper, hidden and possibly sinister.
§ An administrator must always exercise their powers in the
public interest and not for person advantage.
§ The administrative action will be unlawful where
administrators use their powers for:
* Unauthorised purposes; or
* Purposes not contemplated at the time when the powers
were conferred
* Even if the powers are used for praiseworthy purposes
or with good intention.

Ø S 6(2)(e)(v)
§ In bad faith.

Question 24

Give examples of Ulterior Motive where Principle of Legality Used

Answer 24

Ø Example 1 – Sex Workers
§ Police services arrested sex workers for the ulterior purpose
of harassment.
§ This was despite the fact that they knew with a high degree of
probability that the sex workers will not be prosecuted.
Ø Example 2 – Gambling Board
§ MEC for Economic Development of a province dissolved a
Gambling Board of the province for an unauthorised motive.
§ This motive was that she sought to punish board members for
failing to follow an unlawful instruction from her to make
available office space in the board’s own building to a private
company in conflict with the board’s obligations in terms of
public finance regulation.

Question 25

What Action is the Administrator Obliged to Take?

Answer 25

Ø In terms of PAJA section 1 definition of administrative action:
§ Failure to take a decision, where there is a duty on the
administrator to take a decision, may also amount to
administrative action.
Ø As per S 6(2)(g) of PAJA:
§ Failure to take a decision is reviewable.
Ø Therefore, where an administrator has a duty to make a decision
and fails to do so, they have acted unlawfully

Question 26

Applicaion of s6(2)(g) of PAJA

Answer 26

Ø Where S 6(2)(g) applies S 6(3) will also be invoked.

Question 27

Summary of S 6(3)

Answer 27

§ S 6(3)(a)
* If administrator has a duty to make a decision; and
* And no time period is given in law; and
* The administrator has failed to take that decision
¨ Then a person can institute proceedings for an
unreasonable delay.
§ S 6(3)(b)
* If an administrator has a duty to take a decision; and
* The law prescribes a period; and
* The administrator fails to take a decision in that time period
¨ Institute proceedings on the ground that they failed to
take a decision within time, notwithstanding the
expiration of that period.

Question 28

Vumazonke v MEC for Social Development, Eastern Cape and
Three Similar Cases

Answer 28

Ø Facts:
§ Involved a failure on the part of the Department of Social
Development to take decision concerning social grants.
Ø Held:
§ The failure to take decisions within a reasonable time, in
circumstances where the Department had the duty to act,
was reviewable as unlawful administrative action under
PAJA.