Lawfulness as a Standard of Just Administrative Action: The “How” question, mistakes and conclusion

Question 1

Whats the general rule on Prescribed Procedures and Substantive Preconditions

Answer 1

Empowering provisions often prescribe the process or steps that
an administrator must comply with when taking the relevant
action.
§ For example, giving notice.
Ø If an empowering provision prescribes procedures and
conditions for the administrative action to be taken, the
administrator must comply with such procedures and conditions

Question 2

Results of Failure to Comply with Prescribed Procedures and Substantive Preconditions

Answer 2

If the administrator does not comply with the prescribed
procedures and substantive conditions as required by the empowering provision, the administrator will have exercised their
power unlawfully.
Ø The administrator’s conduct can then by judicially reviewed

Question 3

what section of PAJA administers Prescribed Procedures and Substantive Preconditions

Answer 3

Ø S 6(2)(b) of PAJA:
§ A court or tribunal has the power to judicially review an
administrative action if a mandatory and material procedure
or condition prescribed by an empowering provision was
not complied with.

Question 4

How does one identify mandatory provisions?

Answer 4

The use of peremptory language (must and shall) and the use
of negative language (no person shall) in relation to the
prescribed procedure or substantive precondition in the
empowering provisions is a good (but not definitive) indication
that the procedure or condition is mandatory or compulsory.
Ø Mandatory procedures in an empowering provision are also
referred to as:
§ Procedural Prescripts; or
§ Prescribed Procedures

Question 5

Identifying Substantive Preconditions

Answer 5

Ø Mandatory conditions in an empowering provision that an
administrator must comply with in taking the administrative
action are also referred to as:
§ Substantive preconditions; or
§ Conditions precedent that must exist before the exercise
of power

Question 6

General rule for when Deviations from Prescribed Procedure Is Lawful/Unlawful

Answer 6

Ø Compliance with procedures in empowering provisions, should
not be judged formalistically.
Ø A deviation from a prescribed procedure will not necessarily
result in the administrative action being unlawful.
Ø If the administrator **complied sufficiently **with the prescribed
procedure to achieve the purpose of the particular provision:
§ Then the deviation from the prescribed procedure will not be
material; and
§ The administrative action will be lawful.

Question 7

Test for Unlawfulness of Deviation

Answer 7

Ø Possibly Lawful
§ There was no deviation; or
§ There was a deviation but it was not material.

Ø Unlawful
§ There was a deviation; and
§ It was a material deviation

Question 8

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v
CEO South African Social Security Agency and Others on deviation

Answer 8

§ Question in Case:
* Did the administrator take the administrative action in
compliance with how the authorisation in the empowering
provision prescribed the administrative action to be taken?
§ Test:
* Was there a deviation from the prescribed procedures or
irregularity?
* If there was a deviation or irregularity, was the deviation
from the prescribed procedures material?
¨ Material = Did the deviation result in the
administrative action not achieving the purpose of the
particular empowering provision?
Ø If yes, then it is material.

Question 9

Distinguish between the two procedural dimensions

Answer 9

Ø S 6(2)(b)
Looks at a mandatory and material procedure…
§ Deals with procedure as a matter of lawfulness.
§ The procedure originates from the empowering provision.
§ Enquiry is whether there was compliance with the procedure
that forms part of the authorisation.

Ø S 6(2)(c)
Looks at whether or not the action was procedurally unfair.
§ Deals with procedure as a matter of procedural fairness.
§ The procedure mostly originates from the procedural
requirements in sections 3 & 4 of PAJA.
§ Enquiry is whether the decision-making-process was fair
and allows for more variability and contextual influence.

REMEMBER:
§ There is no watertight distinction between the two different
procedural dimensions of an administrative action.
§ The exact same facts may support arguments on both of
these grounds of review.

Question 10

Whats the general rule when determining subjective vs objective preconditions?

Answer 10

Ø There must be the existence of a fact or state of affairs, etc

Question 11

what does the subjective condition refer to?

Answer 11

the subject view of a particular person.

Question 12

What is the effect of the subjective preconditions on the administrator?

Answer 12

These preconditions confer a wide discretion on an
administrator to decide if the facts or state of affairs existed.

Question 13

What indicates whether a subjective precondition was met?

Answer 13

Ø The condition is met if:
§ The administrator forms the view that the pre-requisite facts
or state of affairs exists.

Therefore, it does not matter if they factually exists

Question 14

How are subjective pre conditions generally idnetified?

Answer 14

They are generally identified by
the language used in the empowering provision.
§ For example, “if the administrator is satisfied that/ has
reason to believe…”

Question 15

what do objective pre-conditions refer to?

Answer 15

a fact that can be objectively
determined.
Ø Therefore, these preconditions confer a narrower discretion on
an administrator to decide on matters.

Question 16

when is an objective precondition met?

Answer 16

§ If the facts relating to the condition exists

Question 17

When non-compliance with substantive preconditions is unlawful pre-1994

Answer 17

§ South African Defence and Aid Fund & Another v Minister of
Justice
* Where an empowering provision contained a subjective
precondition, an administrator’s own assertion that
they indeed held the prerequisite subjective view that
the fact or state of affairs existed would generally not be
challenged as a matter of lawfulness.

Question 18

When non-compliance with substantive preconditions is unlawful after PAJA?

Answer 18

§ An administrator’s assertion that they indeed formed the
subjective view that the prerequisite fact or state of affairs
may be challenged as a matter of lawfulness, and reviewed
on the grounds of S 6(2)(e)(iii).
§ S 6(2)(e)(iii)
* The action was taken because irrelevant considerations
were taken into account or relevant considerations were
not considered.
§ It may be argued in terms of S 6(2)(e)(iii) tha an administrator
acted unlawfully when they formed the view that the
condition was satisfied.

Question 19

When non-compliance with substantive preconditions is unlawful during the 1996 Constitution

Answer 19

§ Walele v City of Cape Town & Others
§ In the current constitutional dispensation, an administrator’s
assertion that they indeed formed the subjective view that the
prerequisite fact or state of affairs existed may be challenged
as a matter of the reasonableness standard in section 33 of the Constitution.
§ The administrator must show that the subjective view they
relied on for taking the administrative action was based on
reasonable grounds.