Unit 3 - Meaning of administrative action

Question 1

What is the definition of administrative action under Section 1 of PAJA ?

Answer 1

Administrative action under PAJA is defined as a decision made by an organ of state or a natural or juristic person exercising public power or performing a public function, which:

• Adversely affects rights,
• Has a direct, external legal effect,
• Is made in terms of the Constitution, legislation, or any other empowering provision,
• Does not fall within listed exclusions.

Question 2

What does “a decision” mean in the context of PAJA ?

Answer 2

• Making, suspending, revoking, or refusing to make an order, award, or determination.
• Giving, suspending, revoking, or refusing to give a certificate, direction, approval, consent, or permission.
• Issuing, suspending, revoking, or refusing to issue a license, authority, or other instrument.
• Imposing a condition or restriction.

Question 3

What are the steps in determining whether a decision has been made ?

Answer 3

A statutory or public authority must:

• Receive a final application, request, or claim.
• Gather all relevant information through investigation.
• Evaluate the information based on the relevant law.
• Reach a conclusion on how to exercise its power.
• Exercise its power based on that conclusion.

Question 4

Which acts do not constitute a decision under PAJA ?

Answer 4

• Formal or clerical acts.
• Operation of law.
• Administrative rulemaking.
• Investigative actions.

Question 5

When is an act considered to be of an “administrative nature” ?

Answer 5

The act is considered to be of an administrative nature when it involves the exercise of public power, and is evaluated based on:

• The source of the power.
• The nature of the power.
• Whether the power relates to exercising a public duty.
• Whether the decision is made in the public interest.

Question 6

What is the significance of “adversely affecting rights” in administrative action ?

Answer 6

• A decision must adversely affect an individual’s rights to qualify as administrative action under PAJA.
• This means that the decision must have a material impact on the rights of a person or entity.

Question 7

What is meant by “direct, external legal effect” in administrative action ?

Answer 7

A decision has direct, external legal effect if it produces a tangible and legally recognized outcome that affects the rights of an individual or entity.

Question 8

What are some acts excluded from the definition of administrative action ?

Answer 8

• Executive powers or functions of the National, Provincial, or Municipal Executives.
• Legislative functions.
• Judicial functions.

Question 9

Can Parliament perform administrative actions ?

Answer 9

• No, Parliament cannot perform administrative actions as its functions are excluded under PAJA.
• The court will only intervene if Parliament improperly exercises its privileges and acts in a way that violates the constitutional rights of members.

Question 10

What are the consequences if a decision adversely affects rights ?

Answer 10

• If administrative action adversely affects rights, the decision must be procedurally fair under Section 3 of PAJA.
• Reasons must be provided for the decision, and the affected party must be given an opportunity to be heard unless the effect is trivial.

Question 11

What factors should be considered to determine whether a function is a public function ?

Answer 11

• The source of the power.
• The nature of the power.
• The subject matter at hand.
• Whether the power involves the implementation of legislation or a policy matter.
• Whether the power is exercised in the public interest.