1 of 73

Admin Law Case Notes:

Sources:
Vumazonke v MEC for Social Development , Eastern Cape, and Three Similar Cases 2005 (6)
SA 229 (SE) [11]-[22]
[11] The administration does not have a free hand to behave as it wishes. It is constrained by the
Constitution and the law, and a network of constitutional institutions are created to ensure that it
operates within the limits of the Constitution and the law. This system B was described by the
Constitutional Court in President of the Republic of South Africa and Others v South African Rugby
Football Union and Others22 as follows:
'[132] The exercise of public power is regulated by the Constitution in different ways. There is a
separation of powers between the Legislature, the Executive and the Judiciary which determines
who C may exercise power in particular spheres. An overarching Bill of Rights regulates and
controls the exercise of public power, and specific provisions of the Constitution regulate and
control the exercise of particular powers.
[133] Public administration, which is part of the executive arm of government, is subject to a
variety of constitutional controls. The Constitution is committed to establishing and maintaining an
efficient, D equitable and ethical public administration which respects fundamental rights and is
accountable to the broader public. The importance of ensuring that the administration observes
fundamental rights and acts both ethically and accountably should not be understated. In the past,
the lives of the majority of South Africans were almost entirely governed by labyrinthine
administrative regulations which, amongst other things, prohibited freedom of movement,
controlled access to E housing, education and jobs and which were implemented by a
bureaucracy hostile to fundamental rights or accountability. The new Constitution envisages the
role and obligations of government quite differently.
[134] The constitutional goal is supported by a range of provisions in the Constitution. First, in the
Bill of Rights there is the right of access to information and the right to just administrative
action. . . . Secondly, all the provisions of the Bill of Rights are F binding upon the Executive and
all organs of State. The Bill of Rights, therefore, imposes considerable substantive obligations
upon the administration. Thirdly, ch 10 of the Constitution, entitled ''Public Administration'', sets out
the values and principles that must govern public administration and states that these principles
apply to administration in every sphere of government, organs of State and public enterprises. This
chapter also establishes a Public Service G Commission to promote the values of public
administration. Fourthly, ch 9 of the Constitution establishes the office of the Public Protector,
whose primary task is to investigate and report on conduct in the public administration which is
alleged to be improper. Fifthly, the Constitution establishes the office of the Auditor-General whose
responsibility it is to audit and report on the financial affairs of national and provincial State
departments and administrations as well H as municipalities.'
[12] In the passage I have cited above, the Constitutional Court referred to the values that the
public administration is required to adhere to and promote. They are to be found in s 195 of the
Constitution. Its provisions that are relevant to this matter are: s 195(1)(a), which I
2005 (6) SA p238
PLASKET J

2 of 73
requires that a 'high standard of professional ethics must be promoted and maintained'; A s 195(1)
(b), which requires that '(e)fficient, economic and effective use of resources must be promoted'; s
195(1)(e), which requires that the needs of people 'must be responded to'; s 195(1)(f), which
requires that public administration 'must be accountable'; and s 195(1)(g), which requires that
'(t)ransparency must be fostered by providing the public with timely, accessible and accurate
information'. B
[13] Those who are principally responsible for addressing the breakdown in proper administration,
in compliance with the provisions of the Constitution, in the respondent's department - apart from
the respondent herself who is, after all, the political head of the department, responsible directly C
to the Premier and the legislature for the performance of her functions23 - are: the Premier of the
province, in whom executive authority in the province is vested;24 the Social Development
Standing Committee of the provincial legislature, which is responsible for overseeing the
performance of executive and administrative functions of the respondent's department;25 and the
Minister of Social Development in the national sphere of government, D who is responsible for the
maintenance of norms and standards in the provision of social assistance.26
[14] In addition, it seems to me, at least two other institutions, one of which was referred to by the
Constitutional Court in the passage cited above, are of importance in addressing the problem E
that I have outlined.
[15] The first is the Human Rights Commission, a so-called ch 9 institution established to
'strengthen constitutional democracy in the Republic'.27 As will be seen from the section of the
Constitution cited below, this institution has a special F responsibility in respect of socio-economic
rights such as the right to social assistance. The functions of the Human Rights Commission are
tabulated in s 184. The section reads:
'(1) The South African Human Rights Commission must - G
(a) promote respect for human rights and a culture of human rights;
(b) promote the protection, development and attainment of human rights; and
(c) monitor and assess the observance of human rights in the Republic.
2005 (6) SA p239
PLASKET J
(2) The South African Human Rights Commission has the powers, as A regulated by national
legislation, necessary to perform its functions, including the power (a) to investigate and to report on the observance of human rights;
(b) to take steps to secure appropriate redress where human rights have been violated;
(c) to carry out research; and B
(d) to educate.
(3) Each year, the South African Human Rights Commission must require relevant organs of
state to provide the Commission with information on the measures that they have taken towards
the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social
security, education and the environment. C
(4) The South African Human Rights Commission has the additional powers and functions
prescribed by national legislation.'
[16] The Human Rights Commission Act 54 of 1994 complements the provisions of the
Constitution. Section 9 empowers it to conduct investigations. It states: D
'(1) Pursuant to the provisions of s 116(3) of the Constitution the Commission may, in order to
enable it to exercise its powers and perform its duties and functions (a) conduct or cause to be conducted any investigation that is necessary for that purpose;

3 of 73
(b) through a member of the Commission, or any member of its staff designated in writing by a
member of the Commission, require E from any person such particulars and information as may
be reasonably necessary in connection with any investigation;
(c) require any person by notice in writing under the hand of a member of the Commission,
addressed and delivered by a member of its staff or a sheriff, in relation to an investigation, to
appear before it at a time and place specified in such notice and to produce F to it all articles or
documents in the possession or custody or under the control of any such person and which may be
necessary in connection with that investigation: Provided that such notice shall contain the reasons
why such person's presence is needed and why any such article or document should be produced;
(d) through a member of the Commission, administer an oath to or take an affirmation from any
person referred to in para G (c), or any person present at the place referred to in para (c),
irrespective of whether or not such person has been required under the said para (c) to appear
before it, and question him or her under oath or affirmation in connection with any matter which
may be necessary in connection with that investigation.'
[17] Section 15 of the Act provides for the publication of reports that emanate from investigations
conducted by the Human Rights H Commission. This section states:
'(1) The Commission may, subject to the provisions of ss (3), in the manner it deems fit, make
known to any person any finding, point of view or recommendation in respect of a matter
investigated by it. I
(2) In addition to the report contemplated in s 118 of the Constitution, the Commission shall
submit to the President and Parliament quarterly reports on the findings in respect of functions and
investigations of a serious nature which were performed or conducted by it during that quarter:
Provided that the Commission may, at any time, submit a report to the President and Parliament if
it deems it necessary. J
2005 (6) SA p240
PLASKET J
(3) The findings of an investigation by the Commission shall, when it deems it fit but as soon as
possible, be made available to the A complainant and any person implicated thereby.'
[18] I am aware of the fact that when a previous crisis in the administration of social assistance in
the province was brought to the attention of the Human Rights Commission, it concluded that,
despite trying, there was nothing that it could do but to support a class action for the reinstatement
of a substantial number of disability B grants.28 Many would have expected that the attention that
that crisis has received would have spurred the respondent and her officials out of their lethargy
and indifference and instilled in them a sense of responsibility and commitment. That has not
happened. As the crisis has deepened, I have decided that it is C appropriate to order that a copy
of this judgment be served on the chairperson of the Human Rights Commission so that he can
consider whether to institute an investigation into the conduct of the respondent's department, with
a view to proposing concrete steps to ensure that it begins to comply with its constitutional and
legal obligations and ceases to infringe fundamental rights on the present D grand scale.
[19] In my view it is also necessary to bring the crisis to the attention of the Public Service
Commission because a large part of the problem in the respondent's department appears to be
maladministration and inefficiency in the administration of social assistance. The Public Service
Commission is created as an E independent and impartial institution with the express purposes of
maintaining an 'effective and efficient public administration' and promoting 'a high standard of
professional ethics in the public service'.29 Its powers and functions, as set out in s 196(4) of the
Constitution, are the following: F
'The powers and functions of the Commission are -

4 of 73
(a) to promote the values and principles set out in s 195, throughout the public service;
(b) to investigate, monitor and evaluate the organisation and administration, and the personnel
practices, of the public service; G
(c) to propose measures to ensure effective and efficient performance within the public service;
(d) to give directions aimed at ensuring that personnel procedures relating to recruitment,
transfers, promotions and dismissals comply with the values and principles set out in s 195;
(e) to report in respect of its activities and the performance of its functions, including any finding
it may make and directions and advice it may give, and to provide an evaluation of the H extent to
which the values and principles set out in s 195 are complied with; and
(f) either of its own accord or on receipt of any complaint (i) to investigate and evaluate the application of personnel and public administration practices,
and to report to the relevant executive authority and legislature; I
(ii) to investigate grievances of employees in the public service concerning official acts or
omissions, and recommend appropriate A remedies;
(iii) to monitor and investigate adherence to applicable procedures in the public service; and
(iv) to advise national and provincial organs of state regarding personnel practices in the
public service, including those relating to the recruitment, appointment, transfer, discharge and
other aspects of the careers of employees in the public service; B
(g) to exercise or perform the additional powers or functions prescribed by an Act of Parliament.'
[20] These provisions are complemented by the provisions of the Public Service Commission Act
46 of 1997. Sections 9 and 10 of the Act are relevant. The former provides that the 'Commission
may inspect C departments and other organisational components in the public service, and has
access to such official documents or may obtain such information from heads of those departments
or organisational components or from other officers in the service of those departments or
organisational components as may be necessary for the performance of the functions of the
Commission under the Constitution or the Public D Service Act'. The latter section makes
provision for enquiries. It reads:
'(1) The Commission may conduct an inquiry into any matter in respect of which it is authorised
by the Constitution or the Public Service Act to perform any function.
(2) For the purposes of the inquiry, the Commission may - E
(a)
summons any person who may be able to give information of material importance
concerning the subject of the inquiry or who has in his or her possession or custody or under his or
her control any book, document or object which may have a bearing on the subject of the inquiry,
to appear before the Commission; F
(b) call upon and administer an oath to, or accept an affirmation from, any person present at the
inquiry who has or might have been summonsed in terms of para (a);
(c) examine or require any person who has been called upon in terms of para (b) to produce
any book, document or object in his or her possession or custody or under his or her control which
may have a bearing on the subject of the inquiry. G
. . .'
[21] As with the Human Rights Commission, it seems to me to be appropriate to have this
judgment served on the chairperson of the Public Service Commission so that he can consider
instituting an investigation into the respondent's department. There appears to H me to be no
reason why both institutions, with their complementary focuses and expertise, should not conduct a
joint investigation. I stress, however, that much as I hold the view that an investigation by these
institutions is appropriate and necessary, I am not making an order to that effect: the decision to
investigate or not is one that is vested in the institutions concerned and must be taken by them. I

5 of 73
[22] Two final points must be made before I proceed to deal with the individual cases before me.
The first is that the time for talk and no action has long passed. Something drastic and concrete
must be done to remedy a serious, systemic infringement of the Constitution and the J
2005 (6) SA p242
PLASKET J
law - and the principles of good administration - by the respondent's department. The A second is
that the Premier, as the person in whom executive authority in the province is vested, is ultimately
responsible for the manner in which Members of the Executive Council and their departments
perform. I make this point, not to tell the Premier what to do, but to state the obvious constitutional
point that in terms of the Constitution, the B buck stops with her: this is also made clear in the oath
of office taken by Premiers (and Members of the Executive Council), in terms of which incumbents
swear or affirm an oath to 'obey, respect and uphold the Constitution and all other law of the
Republic'.30

Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) [74][76]
[74]
Even if the applicant was permitted to bypass the specialised framework of the LRA in the
attempt to challenge her dismissal, the reliance on section 195 is misplaced. This is illustrated by
the reasoning in Institute for Democracy in South Africa and Others v African National Congress
and Others (IDASA).[63] The Court in that case relied on the decision in Minister of Home Affairs v
National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others,
[64] where it was held:

The values enunciated in s 1 of the Constitution are of fundamental importance. They inform and
give substance to all the provisions of the Constitution. They do not, however, give rise to discrete
and enforceable rights in themselves. This is clear not only from the language of s 1 itself, but also
from the way the Constitution is structured and in particular the provisions of ch 2 which contains
the Bill of Rights.[65]

[75]

Consequently, the court in IDASA held that

. . . the same considerations apply to the other sections of the Constitution . . . [including] 195(1).
These sections all have reference to government and the duties of government, inter alia, to be
accountable and transparent. . . . In any event, these sections do not confer upon the applicants
any justiciable rights that they can exercise or protect by means of access to the respondents
donations records. The language and syntax of these provisions are not couched in the form of
rights, especially when compared with the clear provisions of ch 2. Reliance upon the sections in
question for purposes of demonstrating a right is therefore inapposite.[66]

6 of 73
[76]
Therefore although section 195 of the Constitution provides valuable interpretive
assistance it does not found a right to bring an action.

Conclusion
[77]
Although on her pleadings the applicant appears to be out of court, she is not left without
a remedy. She must follow the route created by the LRA and exhaust all the remedies that are still
available to her within that specialised framework. A condonation procedure is provided for by
section 136(1) of the LRA, and thus the applicant may still pursue the route of arbitration. If she is
dissatisfied with the outcome, she has the further option of pursuing the review of the arbitration
award in the Labour Court, in terms of section 145 of the LRA.

Rail Commuters Action Group and Others v Transnet Ltd 2005 (2) SA 359 (CC) [74]; [75];
[76]; [78]
[74] Accountability of those exercising public power is one of the founding values of our
Constitution and its importance is repeatedly asserted in the Constitution. Section 1 of the
Constitution provides as follows:
'The Republic of South Africa is one, sovereign, democratic G State founded on the following
values:
...
(d) Universal adult suffrage, a national common voters roll, regular elections
2005 (2) SA p400
O'REGAN J
and a multi-party system of democratic government, to ensure accountability, responsiveness
and openness.' A
Accountability is also to be found in ch 3 of the Constitution, in which s 41(1) provides:
'All spheres of government and all organs of State within each sphere must ... B
(c) provide effective, transparent, accountable and coherent government for the Republic as a
whole.'
It is again recognised as one of the key values of public administration in s 195 of the Constitution
which provides that: C
'(1) Public administration must be governed by the democratic values and principles enshrined in
the Constitution, including the following principles:
...
(f) Public administration must be accountable.
...
(2) The above principles apply to - D
(a) administration in every sphere of government;
(b) organs of State; and
(c) public enterprises.'

7 of 73
[75] The value of accountability is thus expressly mentioned in a range of provisions in the
Constitution. As importantly, however, E the value is asserted within the scheme of the Bill of
Rights. The Bill of Rights requires that where an entrenched right is limited, that limitation may be
constitutionally permissible if it is 'reasonable and justifiable in an open and democratic society
based upon human dignity, equality and freedom'.81 Section 36(1), therefore, requires the State,
or any person asserting that a F limitation of a right falls within the provisions of s 36(1), to show
that the limitation is reasonable and justifiable. It is one of the objects of the Bill of Rights to require
those limiting rights to account for the limitations. The process of justifying limitations, therefore,
serves the value of accountability in a direct way by requiring those who defend limitations to
explain why they are defensible. The value of accountability, therefore, is one which is G relevant
to a consideration of the 'spirit, purport and objects of the Bill of Rights'.
[76] The value of accountability is asserted not only for the State, but also for all organs of State
and public enterprises which would include all four respondents. The principle that Government, H
and organs of State, are accountable for their conduct is an important principle that bears on the
construction of constitutional and statutory obligations, as well as on the question of the
development of delictual liability.
[77] In Van Duivenboden,82 the SCA emphasised that the principle of accountability would not
always result I in the existence of delictual remedies enforceable against the State. In particular,
the SCA emphasised that there may be other legal or political remedies more suitable for
2005 (2) SA p401
O'REGAN J
ensuring that the principle of accountability is observed. The SCA also recognised that in some A
circumstances, even where no other remedy exists, there may be reasons of public interest, which
would suggest that a legal duty cognisable in delict would not arise. Accordingly, in Olitzki Property
Holdings v State Tender Board and Another,83 the SCA concluded that no action for damages for
lost profit lay in circumstances where the procurement provisions of the Constitution had B not
been followed in the award of a tender.84
[78] The principle of accountability, therefore, may not always give rise to a legal duty whether in
private or public law. In determining whether a legal duty exists whether in private or public law,
careful analysis of the relevant constitutional provisions, any C relevant statutory duties and the
relevant context will be required. It will be necessary too to take account of other constitutional
norms, important and relevant ones being the principle of effectiveness85 and the need to be
responsive to people's needs.86

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490
(CC) [22]-[26]
[22]
In Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parte
President of the Republic of South Africa and Others,[9] the question of the relationship between
the common law grounds of review and the Constitution was considered by this Court. A
unanimous Court held that under our new constitutional order the control of public power is always
a constitutional matter. There are not two systems of law regulating administrative action the
common law and the Constitution but only one system of law grounded in the Constitution.[10]
The courts power to review administrative action no longer flows directly from the common law but
from PAJA and the Constitution itself. The grundnorm of administrative law is now to be found in

8 of 73
the first place not in the doctrine of ultra vires,[11] nor in the doctrine of parliamentary sovereignty,
nor in the common law itself,[12] but in the principles of our Constitution. The common law informs
the provisions of PAJA and the Constitution, and derives its force from the latter.[13] The extent to
which the common law remains relevant to administrative review will have to be developed on a
case-by-case basis as the courts interpret and apply the provisions of PAJA and the Constitution.

[23]

Section 33 of the Constitution provides that:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to
be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must
(a) provide for the review of administrative action by a court or, where appropriate, an independent
and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.

The transitional provisions of the Constitution in schedule 6 required that the legislation referred to
in section 33(3) be passed within three years of the Constitution coming into force.[14] PAJA was
assented to on 3 February 2000. The long title to PAJA states that it is

[t]o give effect to the right to administrative action that is lawful, reasonable and procedurally fair
and to the right to written reasons for administrative action as contemplated in section 33 of the
Constitution of the Republic of South Africa, 1996 . . ..

[24]
Section 6 of PAJA identifies the circumstances in which the review of administrative
action may take place. PAJA itself provides a definition of administrative action in section 1, but
the scope of that definition does not concern us in this case as it is, quite rightly, common cause
that the decision of the Chief Director at issue constitutes administrative action as contemplated by
PAJA. Section 6 provides that:

9 of 73

(1)
Any person may institute proceedings in a court or a tribunal for the judicial review of an
administrative action.
(2)

A court or tribunal has the power to judicially review an administrative action if

(a)

the administrator who took it

(i) was not authorised to do so by the empowering provision;

(ii) acted under a delegation of power which was not authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b)
a mandatory and material procedure or condition prescribed by an empowering provision
was not complied with;
(c)

the action was procedurally unfair;

(d)

the action was materially influenced by an error of law;

(e)

the action was taken

(i) for a reason not authorised by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into account or relevant considerations were not
considered;
(iv) because of the unauthorised or unwarranted dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f)

the action itself

(i) contravenes a law or is not authorised by the empowering provision; or

(ii) is not rationally connected to
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;

10 of 73
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
(g)

the action concerned consists of a failure to take a decision;

(h)
the exercise of the power or the performance of the function authorised by the empowering
provision, in pursuance of which the administrative action was purportedly taken, is so
unreasonable that no reasonable person could have so exercised the power or performed the
function; or
(i)

the action is otherwise unconstitutional or unlawful.

(3)
If any person relies on the ground of review referred in subsection 2 (g), he or she may in
respect of a failure to take a decision, where
(a)

(i) an administrator has a duty to take a decision;

(ii) there is no law that prescribes a period within which the administrator is required to take that
decision; and
(iii) the administrator has failed to take that decision,
institute proceedings in a court or tribunal for judicial review of the failure to take the decision on
the ground that there has been unreasonable delay in taking the decision; or
(b)

(i) an administrator has a duty to take a decision;

(ii) a law prescribes a period within which the administrator is required to take that decision; and
(iii) the administrator has failed to take that decision before the expiration of that period,
institute proceedings in a court or tribunal for judicial review of the failure to take the decision within
that period on the ground that the administrator has a duty to take the decision notwithstanding the
expiration of that period.

[25]
The provisions of section 6 divulge a clear purpose to codify the grounds of judicial
review of administrative action as defined in PAJA. The cause of action for the judicial review of
administrative action now ordinarily arises from PAJA, not from the common law as in the past.
And the authority of PAJA to ground such causes of action rests squarely on the Constitution. It is
not necessary to consider here causes of action for judicial review of administrative action that do
not fall within the scope of PAJA. As PAJA gives effect to section 33 of the Constitution, matters
relating to the interpretation and application of PAJA will of course be constitutional matters.[15]

11 of 73

[26]
In these circumstances, it is clear that PAJA is of application to this case and the case
cannot be decided without reference to it. To the extent, therefore, that neither the High Court nor
the SCA considered the claims made by the applicant in the context of PAJA, they erred. Although
the applicant did not directly rely on the provisions of PAJA in its notice of motion or founding
affidavit, it has in its further written argument identified the provisions of PAJA upon which it now
relies.

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of

the Republic of South Africa 2000 (2) SA 674 (CC) [to control the exercise of public power]
[33] [44]-[51]
[33]
In holding that there was no need to consider section 24 of the interim Constitution in that
case, Hefer JA said:
Judicial review under the Constitution and under the common law are different concepts. In the
field of administrative law constitutional review is concerned with the constitutional legality of
administrative action, the question in each case being whether it is or is not consistent with the
Constitution and the only criterion being the Constitution itself. Judicial review under the common
law is essentially also concerned with the legality of administrative action, but the question in each
case is whether the action under consideration is in accordance with the behests of the
empowering statute and the requirements of natural justice.[52]
I take a different view. The control of public power by the courts through judicial review is and
always has been a constitutional matter. Prior to the adoption of the interim Constitution this control
was exercised by the courts through the application of common law constitutional principles. Since
the adoption of the interim Constitution such control has been regulated by the Constitution which
contains express provisions dealing with these matters. The common law principles that previously
provided the grounds for judicial review of public power have been subsumed under the
Constitution, and in so far as they might continue to be relevant to judicial review, they gain their
force from the Constitution. In the judicial review of public power, the two are intertwined and do
not constitute separate concepts. I deal more fully with this below.
[44]
I cannot accept this contention which treats the common law as a body of law separate and
distinct from the Constitution. There are not two systems of law, each dealing with the same
subject matter, each having similar requirements, each operating in its own field with its own
highest court. There is only one system of law. It is shaped by the Constitution which is the
supreme law, and all law, including the common law, derives its force from the Constitution and is
subject to constitutional control.
[45]
Whilst there is no bright line between public and private law, administrative law, which forms
the core of public law, occupies a special place in our jurisprudence. It is an incident of the
separation of powers under which courts regulate and control the exercise of public power by the
other branches of government. It is built on constitutional principles which define the authority of
each branch of government, their inter-relationship and the boundaries between them. Prior to the
coming into force of the interim Constitution, the common law was the main crucible for the

12 of 73
development of these principles of constitutional law.[71] The interim Constitution which came into
force in April 1994 was a legal watershed. It shifted constitutionalism, and with it all aspects of
public law, from the realm of common law to the prescripts of a written constitution which is the
supreme law. That is not to say that the principles of common law have ceased to be material to
the development of public law. These well-established principles will continue to inform the content
of administrative law and other aspects of public law, and will contribute to their future
development. But there has been a fundamental change. Courts no longer have to claim space
and push boundaries to find means of controlling public power. That control is vested in them
under the Constitution which defines the role of the courts, their powers in relation to other arms of
government, and the constraints subject to which public power has to be exercised. Whereas
previously constitutional law formed part of and was developed consistently with the common law,
the roles have been reversed. The written Constitution articulates and gives effect to the governing
principles of constitutional law. Even if the common law constitutional principles continue to have
application in matters not expressly dealt with by the Constitution, (and that need not be decided in
this case)[72] the Constitution is the supreme law and the common law, in so far as it has any
application, must be developed consistently with it, and subject to constitutional control.
[46]
In terms of section 173 of the Constitution, the Constitutional Court has the power to
develop the common law in constitutional matters within its jurisdiction.[73] The power of this
Court to develop the common law is also implicit in section 8(3) of the Constitution which deals with
the application of the bill of rights to natural or juristic persons (clearly a constitutional matter) and
provides that a court must apply, or if necessary develop, the common law to the extent that
legislation does not give effect to that right, and may develop rules of the common law to limit the
right, provided that the limitation is in accordance with section 36(1).[74]
[47]
In the Container Logistics case Hefer JA drew attention to section 35(3) of the interim
Constitution which provided that:
In the interpretation of any law and the application and development of the common law and
customary law, a court shall have due regard to the spirit, purport and objects of this Chapter.[75]
[48]
Commenting on this section and section 33(3)[76] he said:
There is no indication in the interim Constitution of an intention to bring about a situation in which,
once a Court finds that administrative action was not in accordance with the empowering
legislation or the requirements of natural justice, interference is only permissible on constitutional
grounds. On the contrary, s 35(3) is a strong indication that it was the intention, not to abolish any
branch of the common law, but to leave it to the Courts to bring it into conformity with the spirit,
purport and objects of the Bill of Rights. Section 33(3), which proclaims that the entrenchment of
rights shall not be construed as denying the existence of any other rights conferred by common law
which are not inconsistent with the Bill of Rights, points the same way.[77]
[49]
What section 35(3) and section 33(3) of the interim Constitution make clear is that the
Constitution was not intended to be an exhaustive code of all rights that exist under our law. The
reference in section 33(3) of the interim Constitution and section 39(3) of the 1996 Constitution is
to other rights, and not to rights enshrined in the respective Constitutions themselves. That there
are rights beyond those expressly mentioned in the Constitution does not mean that there are two
systems of law. Nor would this follow from the reference in section 35(3) of the interim Constitution
and section 39(2) of the 1996 Constitution to the development of the common law. The common
law supplements the provisions of the written Constitution but derives its force from it. It must be
developed to fulfil the purposes of the Constitution and the legal order that it proclaims thus, the
command that law be developed and interpreted by the courts to promote the spirit, purport and
objects of the Bill of Rights. This ensures that the common law will evolve within the framework of

13 of 73
the Constitution consistently with the basic norms of the legal order that it establishes. There is,
however, only one system of law and within that system the Constitution is the supreme law with
which all other law must comply.
[50]
What would have been ultra vires under the common law by reason of a functionary
exceeding a statutory power is invalid under the Constitution according to the doctrine of legality. In
this respect, at least, constitutional law and common law are intertwined and there can be no
difference between them. The same is true of constitutional law and common law in respect of the
validity of administrative decisions within the purview of section 24 of the interim Constitution.[78]
What is lawful administrative action, procedurally fair administrative action and administrative
action justifiable in relation to the reasons given for it, cannot mean one thing under the
Constitution, and another thing under the common law.
[51]
Although the common law remains relevant to this process, judicial review of the exercise
of public power is a constitutional matter that takes place under the Constitution and in accordance
with its provisions. Section 167(3)(c) of the Constitution provides that the Constitutional Court
makes the final decision whether a matter is a constitutional matter. This Court therefore has the
power to protect its own jurisdiction, and is under a constitutional duty to do so. One of its duties is
to determine finally whether public power has been exercised lawfully. It would be failing in its duty
if it were to hold that an issue concerning the validity of the exercise of public power is beyond its
jurisdiction.

Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999
(1) SA 374 (CC) [27]; [31];[32];[42])
[27]

In addressing this question it is important to distinguish between the different processes by

which laws are made. Laws are frequently made by functionaries in whom the power to do so has
been vested by a competent legislature. Although the result of the action taken in such
circumstances may be legislation, the process by which the legislation is made is in substance
administrative. The process by which such legislation is made is different in character to the
process by which laws are made by deliberative legislative bodies such as elected municipal
councils. Laws made by functionaries may well be classified as administrative; laws made by
deliberative legislative bodies can seldom be so described.
[31]

Legislation enacted by municipalities was treated differently. Their power to make laws was

characterised as a delegated power and municipal by-laws were exposed to judicial review. But, as
Baxter points out,3[2] where:
. . . by-laws are enacted by elected councils, the courts do tend to construe them benevolently
when determining their reasonableness and validity. In this respect, therefore, municipal by-laws
have some resemblance to [provincial] ordinances.

14 of 73
[32]

The introduction of the interim Constitution has radically changed the setting within which

administrative law operates in South Africa. Parliament is no longer supreme. Its legislation, and
the legislation of all organs of state, is now subject to constitutional control.
[42]

The enactment of legislation by an elected local council acting in accordance with the

Constitution is, in the ordinary sense of the words, a legislative and not an administrative act. There
is no fit between the exercise of such powers by elected councillors and the provisions of section
24.
Admin Action - Constitution
President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA
1 (CC)
(e) The meaning of administrative action
[140] [
In Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others,10[4] this Court held that administrative action as contemplated
in section 33 does not include within its ambit, legislative decisions taken by a deliberative and
elected legislative body established by the Constitution. Such action, we held, was not action of the
public administration, but action of a constitutionally empowered legislature. Similarly, in Nel v Le
Roux NO and Others,10[5] the Court held that a summary sentencing procedure was judicial, not
administrative, action and therefore it did not fall within the ambit of the administrative justice
clause. However, in the present case, we are concerned not with the acts of a legislature, nor with
judicial acts, but with acts of the President in terms of section 84 of the Constitution. The question
is whether the exercise of the power conferred upon the President by section 84(2)(f) constitutes
administrative action.
[141] In section 33 the adjective administrative not executive is used to qualify action. This
suggests that the test for determining whether conduct constitutes administrative action is not the
question whether the action concerned is performed by a member of the executive arm of
government. What matters is not so much the functionary as the function. The question is whether
the task itself is administrative or not. It may well be, as contemplated in Fedsure,10[6] that some
acts of a legislature may constitute administrative action. Similarly, judicial officers may, from time
to time, carry out administrative tasks.10[7] The focus of the enquiry as to whether conduct is
administrative action is not on the arm of government to which the relevant actor belongs, but on
the nature of the power he or she is exercising.
[142] As we have seen, one of the constitutional responsibilities of the President and cabinet
members in the national sphere (and premiers and members of executive councils in the provincial
sphere) is to ensure the implementation of legislation. This responsibility is an administrative one,
which is justiciable, and will ordinarily constitute administrative action within the meaning of
section 33. Cabinet members have other constitutional responsibilities as well. In particular, they
have constitutional responsibilities to develop policy and to initiate legislation. Action taken in

15 of 73
carrying out these responsibilities cannot be construed as being administrative action for the
purposes of section 33. It follows that some acts of members of the executive, in both the national
and provincial spheres of government will constitute administrative action as contemplated by
section 33,10[8] but not all acts by such members will do so.
[143] Determining whether an action should be characterised as the implementation of legislation
or the formulation of policy may be difficult. It will, as we have said above, depend primarily upon
the nature of the power. A series of considerations may be relevant to deciding on which side of the
line a particular action falls. The source of the power, though not necessarily decisive, is a relevant
factor.10[9] So too is the nature of the power, its subject matter, whether it involves the exercise of
a public duty, and how closely it is related on the one hand to policy matters, which are not
administrative, and on the other to the implementation of legislation, which is.11[0] While the
subject matter of a power is not relevant to determine whether constitutional review is appropriate,
it is relevant to determine whether the exercise of the power constitutes administrative action for
the purposes of section 33. Difficult boundaries may have to be drawn in deciding what should and
what should not be characterised as administrative action for the purposes of section 33. These
will need to be drawn carefully in the light of the provisions of the Constitution and the overall
constitutional purpose of an efficient, equitable and ethical public administration. This can best be
done on a case by case basis.

Permanent Secretary, Department of Education, Eastern Cape and Another v Ed-U-College

(PE) Inc 2001 (2) SA 1 (CC)
In Ed-U-College (Section 21) (PE) Inc v Permanent Secretary, Department ofEducation and
Welfare, Eastern Cape & another 2001 (1) SA 257 (SE) LeachJ was required to determine whether
the allocation of subsidies to private schools was administrative action. He held that the allocation
of a budget to the department concerned, by means of the passing of an Appropriation Act, was
legislative action. However, the use of these funds in the discretion of the Member of the Executive
Council (the MEC) concerned was an administrative act: the legislature, as he put it, supplied the
department with the cake which 'the second defendant, in the exercise of his discretion... was left
to slice up' (at 263F-G). The Constitutional Court arrived at the same conclusion when it dismissed
an application for leave to appeal against this judgment in Permanent Secretary, Department of
Education and Welfare & another v Ed-U-College (PE) (Section 21) Inc 2001 (2) SA 1 (CC); 2001
(2) BCLR 118. On the central issue of the nature of the MEC's function in allocating the funds to
particular schools, O'ReganJ held that 'it cannot be argued that the determination of the precise
subsidy formula by the MEC constituted legislative action. It was not action taken by the
legislature, nor was it debated or considered by the legislature, nor did it in any way form part of
the legislative process, nor did it follow as a matter of course from the legislation itself. Indeed, the
determination took place in the light of a statutory power conferred upon the MEC by the Schools
Act which suggests that the MEC has, as long as funds have been appropriated for the purpose,
the power to determine when a subsidy should be granted' (para 16).
The Permanent Secretary of the Department of Education and the MEC for Education in the
Eastern Cape applied for leave to appeal against a judgment of Leach J in the South Eastern Cape
High Court. The case concerned a 1997 decision by the Education Department to reduce the

16 of 73
amount of subsidies paid to independent schools, including EdU-College, in the province. That
decision had been taken after the legislature reduced the amount of money allocated to funding
independent schools in its annual education budget by approximately 18 %. Three questions were
considered: (a) Could the appropriation of approximately R5,45 billion to education in the budget
passed by the Eastern Cape Legislature be reviewed by a court as administrative action under
section 33 of the Constitution? (b) Could the appropriation of R8,45 million to independent schools
as stipulated in a memorandum circulated with the budget be reviewed by a court under section
33? (c) Could the determination of the precise subsidy formula determining the money to be paid
to each independent school be reviewed by a court under section 33 of the Constitution? O'Regan
J, writing for a unanimous court, came to the conclusion that the appropriations under review in
questions (a) and (b) did not constitute administrative action as contemplated by section 33 of the
Constitution. These appropriations could consequently not be challenged by Ed-U-College on
administrative law grounds. With regard to the third question, O'Regan J was of the opinion that
the determination of the subsidy formula by the MEC constituted administrative action within the
terms of section 33. Accordingly, it could be reviewed by a court. The Court emphasised that in
determining whether a particular act constitutes administrative action, the focus of the enquiry
should be on the nature of the power, not the identity of the actor, and that the formulation of policy
by elected members of the executive in the course of implementing legislation may constitute
administrative action. Having answered question (c) in the affirmative, O'Regan J pointed out that it
was necessary to decide whether the action of the Education Department was procedurally fair and
reasonable. In this regard, the Court held that it was impossible to tell at this stage whether Ed-UCollege's right to just administrative action had indeed been infringed as full evidence on these
issues had not been led. The application for leave to appeal was dismissed with costs. The
matter may be pursued further in the High Court by Ed-UCollege.

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)
The Constitutional Court was called upon to decide in Sidumo & another v Rustenburg Platinum
Mines Ltd & others 2008 (2) SA 24 (CC) whether the compulsory arbitral function of the
Commission for Conciliation, Mediation and Arbitration (CCMA), created by the Labour Relations
Act 66 of 1995, was administrative action. Navsa AJ, for the majority, held that it was. His starting
point was that administrative bodies vary greatly in their 'form, characteristics and functions' - from
those that 'implement or give effect to policy or to legislation', on the one extreme, to those that
'resemble courts of law', on the other (para [82]). While there are similarities between the CCMA
and courts, there are also significant differences, such as that commissioners of the CCMA do not
adhere to a system of precedent or have security of tenure (paras [84]-[85]). Commissioners
exercise public power and '[i]n the language of the pre-constitutional administrative law order, it
would have been described as an administrative body exercising a quasi-judicial function' He
concluded that when a commissioner conducts an arbitration, he or she performs an administrative
function (para [88]).

17 of 73
[87] Currie and De Waal state:
The CCMA is not a branch of the judiciary and does not exercise judicial power. Rather, the
exercise of the compulsory arbitration power is an exercise of public power of an administrative
(governmental) nature. The arbitration power is designed to fulfil the primary goal of the Act which
is to promote labour peace by the effective settlement of disputes. It does so with an element of
compulsion, corresponding to the traditional government/governed relationship.92
[88] Compulsory arbitrations in terms of the LRA are different from private arbitrations.93 CCMA
commissioners exercise public power which impacts on the parties before them. In the language of
the pre-constitutional administrative law order, it would have been described as an administrative
body exercising a quasi-judicial function.94 I conclude that a commissioner conducting a CCMA
arbitration is performing an administrative function.
On 5 October 2007 the Constitutional Court delivered judgment in this matter. The judgment has
been eagerly awaited by employers and employees. It is of special significance to the Commission
for Conciliation, Mediation and Arbitration (the CCMA) and to the Congress of South African Trade
Unions (COSATU), which had applied to intervene. The case involved the dismissal, more than
seven years ago, of Mr Sidumo by Rustenburg Platinum Mines. Mr Sidumo was employed to patrol
the Mines high security facility where precious metals are separated from lower grade concentrate.
He was dismissed for failing to apply established search procedures. He contested his dismissal
and referred his dismissal dispute to the CCMA in terms of the compulsory arbitration provisions of
the Labour Relations Act (the LRA). The commissioner found that Mr Sidumo was guilty of
misconduct but found that no dishonesty was involved and took into account his clean service
record of 15 years and consequently reinstated him with three months compensation subject to a
written warning valid for three months. The Mine applied to the Labour Court to review and set
aside the award. The Labour Court dismissed the application. The Mine unsuccessfully appealed
against the decision to the Labour Appeal Court. The Mine then appealed against that decision to
the Supreme Court of Appeal where it was successful. The Supreme Court of Appeal held that the
dismissal was fair. Mr Sidumo, in turn, applied to this Court for leave to appeal against that
decision. A key finding of the Supreme Court of Appeal was that in deciding unfair dismissal
disputes commissioners of the CCMA should approach the employers sanction in relation to
misconduct with a measure of deference because it is the employers function in the first place to
impose a sanction. In this Court four judgments have been written. All agreed that the Supreme
Court of Appeal decision must be overturned. They are unanimous that, in deciding a dismissal
dispute, a commissioner is not required to defer to the decision of the employer. The commissioner
is, however, not given the power to consider afresh what he or she would do but to decide whether

18 of 73
what the employer did was fair. In reaching a decision the commissioner must have regard to all
relevant circumstances. The judgments differ, however, in respect of certain aspects of how the
functioning of the commissioner is to be characterised. Navsa AJ, with whom Moseneke DCJ,
Madala J, ORegan J and Van der Westhuizen J concurred, agreed with the Supreme Court of
Appeal that compulsory arbitration proceedings undertaken by the CCMA constituted
administrative action, but held that it was not subject to the provisions of the Promotion of
Administrative Justice Act. The majority held that in accordance with the requirements of section 33
of the Constitution, which provides that everyone has the right to administrative action that is lawful,
reasonable and procedurally fair, and considering the purpose of the review provisions of the LRA,
the standard to be applied when a decision by a commissioner on a dismissal dispute is sought to
be reviewed is the following: Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? In applying this standard to the facts of the case the majority
accepted that there had been no evidence that loss had been suffered by the Mine as a result of Mr
Sidumos misconduct. It considered that the commissioner erred in describing the misconduct as a
mistake or as unintentional. It held, however, that the commissioner was correct to find that the
absence of dishonesty was significant. It took the view that Mr Sidumos failure to own up to his
misconduct should count against him. It balanced this against his clean and lengthy service record
and concluded that having regard to the reasoning of the commissioner, based on the material
before him, it could be said that his conclusion was one that a reasonable decision-maker could
reach. The facts were such that decisionmakers acting reasonably may reach different conclusions.
Mr Sidumos application for leave to appeal and COSATUs application to intervene were granted.
The appeals against the decisions of the Supreme Court of Appeal were upheld. All the costs
orders in the courts before the present appeal were set aside and substituted with an order that no
costs were to be paid by any of the parties. In respect of the present appeal no order was made as
to costs. In a minority judgment in which Mokgoro J, Nkabinde J and Skweyiya J concurred,
Ngcobo J held that this case did not require the Court to decide whether the conduct of arbitration
proceedings by a CCMA constitutes administrative action. He held in any event that the conduct of
arbitration by a CCMA commissioner essentially involves the same functions that are performed by
a court of law and is therefore adjudicative and not administrative in nature. 2 According to Ngcobo
J this case required the Court to give meaning to the grounds upon which arbitration awards by
CCMA commissioners may be reviewed by the Labour Court. He emphasised that in answering
this question, courts must be guided by the principle that where legislation which was enacted to
give effect to a constitutional right specifies the grounds upon which decisions of tribunals giving
effect to that legislation may be reviewed, a court reviewing the decision of that tribunal should start
with the interpretation of the specific grounds contained in the statute in question. The grounds
must be construed in the light of the primary objectives of the LRA and the provisions of the
Constitution, in particular, those entrenching the right to fair labour practices. He cautioned against

19 of 73
developing a standard of review based directly on the Constitution and thereby ignoring the specific
provisions of the LRA which set out the specific grounds of review. Against this background, he
held that parties to CCMA arbitrations had a right to have their cases fully and fairly determined.
This required commissioners to apply their mind to the issues that are material to the determination
of the disputes before them. He held that where a commissioner failed to have regard to a matter
which was material to the dispute, the arbitration proceedings could not in principle be said to be
fair. He held that this constituted a gross irregularity in the conduct of the proceedings as
contemplated in section 145(2)(a)(ii) of the LRA. He further held that the ensuing award ought to be
set aside not because the result is wrong but because the commissioner has committed a gross
irregularity in the conduct of the proceedings. He further held that similarly, where a commissioner
rendered an award which was manifestly unfair, he or she exceeded his or her powers under the
LRA and the resultant award must be set aside on the grounds that the commissioner has
exceeded his or her powers as contemplated in section 145(2)(a)(iii)of the LRA. On the facts of the
case he concluded that none of the grounds of review contained in the LRA had been established.
He accordingly concurred in the order of Navsa J. ORegan J wrote a brief judgment concurring in
the judgment of Navsa AJ. She differed with the approach of Ngcobo J on the question of whether
the decisions made by CCMA commissioners were administrative action or not. She reasoned that
there was no reason why sections 33 and 34 of the Constitution needed to operate in a mutually
exclusive manner. She held that the CCMA decisions were clearly governed by section 34, and to
answer the question whether they were also governed by section 33, she considered the
constitutional purpose of that section. She held that its purpose was to ensure that administrative
action was compliant with the constitutional standards of lawfulness, reasonableness and
procedural fairness. As the CCMA is an administrative tribunal making adjudicative decisions, she
reasoned that it would be consonant with our constitutional framework for those decisions to be
reviewed on the grounds provided for in section 33. She agreed therefore with Navsa AJ that the
decisions of CCMA commissioners were administrative action. 3 In a separate judgment
supporting the outcome, Sachs J held that pigeonholing the conduct of a commissioner as either
judicial function or administrative action displayed undue subordination to formal classification of
rights, and insufficient regard for the manner in which rights overlap and basic values animate and
bind discrete rights together. In his view the function of the commissioner is a hybrid one,
composed of an amalgam of the separate but intermingling right to fair labour practices, the right to
just administrative action and the right of access to court. He accordingly agreed with both
judgments as far as they went in their separate legal frames. Though different in form they
concurred on the context, interests and values involved. Formal trappings aside, he had difficulty in
seeing how a reasonable commissioner could act unfairly, or a fair commissioner could function
unreasonably.

20 of 73
Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA)
In Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) the court was called upon to
decide whether the appellant had exercised administrative power when it had called for and
decided upon tenders for the provision of gold watches for long-serving employees. It had been
argued that it had merely acted in a privatelaw capacity in calling for offers and accepting one of
these. OlivierJA held that the appellant had been acting administratively: like its predecessor, the
South African Transport Services, the appellant, which was wholly owned by the state, was
required to perform 'a public service and function' and exercised 'all the powers of a government
department' (para 37 in the judgment of OlivierJA). It was, furthermore, required by the statute that
created it to provide transport services in the public interest (ibid). Consequently, and as a general
proposition, it exercised public powers and performed public functions (para 38 in thejudgment of
OlivierJA). Calling for and deciding upon the tenders constituted administrative action because the
appellant exercised powers that 'arose from the legislation under discussion and directly related to
affairs not confined to the internal affairs of Transnet. Public funds and eventually State
responsibility are involved' (para 39 in the judgment of OlivierJA. See too paras 7-9 in the judgment
of SchutzJA).
[34] The legislative concept of administrative action has now been
introduced in section 24 of the interim Constitution and has been retained in section 33 of the
Constitution of 1996. Our courts have not yet defined the parameters of the concept. No doubt it
will be defined and redefined in future. A final definition is not possible, nor called for, in this
judgment. The following has so far emerged from recent decisions:
34.1 Administrative law, which occupies a special place in our jurisprudence, is an incident of the
separation of powers under which courts regulate and control the exercise of public power by the
other branches of government - Pharmaceutical Manufacturers Association of SA and Others : In
re : Ex Parte Application of President of the RSA and Others [2000] ZACC 1; 2000 (3) BCLR 241
(CC) at 260 [45], 263 [51], 270 [79] and 272 [85] per Chaskalson P.
34.2 Administrative law and the power of the courts to pronounce on the validity of the exercise of
public power by the executive and other functionaries are not limited to administrative actions as
envisaged in section 33. So, for example, it was held that the power of the President to promulgate
a statute was not an administrative action, yet it is subject to constitutional review in the wider
sense of that term - Pharmaceutical Manufacturers, supra, at 270 [79] and 271 [82] et seq.
34.3 The question relevant to section 33 of the Constitution is not whether the action is performed
by a member of the executive arm of government, but whether the task itself is administrative or
not. The answer is to be found by an analysis of the nature of the power being exercised President of the RSA and Others v SARFU and Others [1999] ZACC 11; 1999 (10) BCLR 1059 CC
at 1119 [141].
34.4 The implementation of legislation is an administrative responsibility, and will ordinarily
constitute administrative action within the meaning of section 33 - SARFU, supra, at 111 [142].
34.5 What has to be taken in consideration is, inter alia, the source of the power exercised, as well
as
... the nature of the power, its subject matter, whether it involves the exercise of a public duty, and
how closely it is related on the one hand to policy matters which are not administrative, and on the
other to the implementation of legislation, which is. (See SARFU, supra, at 1120 [143.])

21 of 73
34.6 Whilst section 24 of the interim Constitution - presently sections 33 (1) and (2) of the
Constitution - applies to the exercise of powers delegated by an elected local government council
to its functionaries, it is not applicable to the by laws made by the council itself: the latter is a
legislative , not an administrative act. - Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council
and Others, [1998] ZACC 17; 1999 (1) SA 374 (CC) at 394 [41] and [42]; see also Ernst and Young
and Others v Beinash and Others, 1999 (1) SA 1114 (W) at 1145 F - H.

Decision
Oosthuizens Transport (Pty) Ltd and Others v MEC, Road Traffic Matters, Mpumalanga, and
Others 2008 (2) SA 570 (T) [21]-[25], [27]-[28]
[21] I have already mentioned that the respondents contended that the H recommendation by the
investigation committee to suspend the operator licences was not a decision 'which adversely
affected the rights of applicants and which had a direct external legal effect'. It was simply a
preliminary step in a particular process. Respondents therefore say that inasmuch as a
recommendation is inherently not final, it cannot be a 'decision' as defined, and can therefore not
be 'administrative action' as I defined, with the result that s 6 of PAJA cannot apply.
[22] Respondents contend that 'direct effect' in the definition of 'admi- nistrative action' means that
finality in the determination of rights is req- uired, which would exclude preliminary steps in a multistaged process. Reliance is placed on JR de Ville (supra) at 54, where the learned author, J
2008 (2) SA p578
FABRICIUS AJ
in A considering the legislative origin of the definition of 'administrative action' refers to the view of
Pfaff and Schneider who are of the view that 'legal effect' refers to the fact that a decision taken
must have an effect on the individual's right. This requirement would generally exclude
'notifications, expert opinions, warnings, proposals or recommendations'.
[23] B De Ville is of the view that the phrase 'direct, external, legal effect' should be interpreted in
line with the common law. The issue of finality in the context of a multi-staged decision-making
process in the context of action qualifying as administrative action, requires finality, and in support
thereof he refers to Eastern Metropolitan Substructure v Peter Klein C Investments (Pty) Ltd 2001
(4) SA 661 (W) (2001 (4) BCLR 344), where it was held that the relevant decision must have the
requisite finality to attract administrative justice rights. Where a decision has no determinate effect
on parties' rights, it is not an administrative act.
[24] Inasmuch as s 6 of PAJA refers to 'administrative action', and inasmuch as the definition of
'administrative action' requires a decision, and D inasmuch as a decision must 'adversely affect
the rights of any person and which has a direct, external legal effect', the argument is that the socalled 'impact threshold requirement' in most instances requires a decision that is final, in the

22 of 73
sense that it has a direct external legal effect which adversely affects the rights of a person. I have
no problem with that E interpretation if this is subject to the very important qualification that it does
not follow as a matter of logical reasoning or statutory interpretation that a recommendation does
as a matter of law, not have a direct external legal effect which adversely affects the rights of a
person. If that is respondent's contention, as it seems to be, I do not agree. F
[25] Even a preliminary decision can have serious consequences especially where it lays 'the
necessary foundation for a possible decision' which may have grave results. See Van Wyk NO and
Another v Van Der Merwe 1957 (1) SA 181 (A) at 188B - 189A.
[27] Let me return to the present facts which I have briefly mentioned above. The investigation
team suggested that there were only two options open to the MEC, namely a suspension of the
operator F registration for Oosthuizen's Transport, Middelburg, or that no administrative sanction
be imposed. They themselves stated that if the first option were implemented there would be farreaching social, economic and political consequences. This would apply irrespective of whether
part or all of the operator registration were suspended. Should the MEC G decide to implement the
second option, they were of the view that this would likewise also have far-reaching consequences,
since by implication the MEC would be granting a blanket authority to other operators to overload
their vehicles. Those were the only two options suggested, and then the investigation team made a
recommendation, which in my view amounted to a 'decision' as defined in PAJA, and in any event,
since that H was what they decided to do. They recommended that:
(A)ll of Oosthuizens' Transport, Middelburg operator cards be suspended for a period of three
months on condition that the operator is able to convince the MEC, at the end of the three month
period, that the company is in a position to exercise its duties as required by the applicable
legislation. I
[28] In the Grey's Marine decision to which I have referred (supra), the learned judge of appeal was
of the view that administrative action is action 'that has the capacity to affect legal rights'. In this
case it was contended that the applicants had generally speaking the right to transport the relevant
goods. When using this phrase, the learned judge J
2008 (2) SA p580
FABRICIUS AJ
of A appeal may have had the German definition in mind, as this seems to me to have the font of
the South African definition. See Verwaltungsverfahrensgesetz, Dr FO Kopp and Dr F Kopp, CH
Beck, M\)nchen 1996 para 35.

Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation and Others 2010
(4) SA 242 (SCA) [43]-[44]

23 of 73
[43] However, that is not the only reason why this contention must fail. The two premises upon
which reliance is placed, namely that the decision to expropriate constitutes administrative action
and that a failure to take an administrative decision may constitute administrative action, are
correct. However they do not justify the conclusion that the failure to decide to expropriate in the
present case is administrative action. The reason is that where s 6(2)(g) of PAJA refers to the
failure to take a decision it refers to a decision that the administrator in question is under some
obligation to take, not simply to indecisiveness in planning on policy issues. It is directed at
dilatoriness in taking decisions that the administrator is supposed to take and aims at protecting
the citizen against bureaucratic stonewalling. As such its focus is the person who applies for an
identity document, government grant, licence, permit or passport and does not receive it within an
appropriate period of time and whose attempts to chivvy officialdom along are met with: Come
back next week. It is not directed at decisions in regard to future policy such as whether property
will be expropriated. The difficulty of applying it in that context is well illustrated by the present case
where the only person with the power of expropriation, the third respondent, has not even been
approached in that regard much less considered or had reason to consider that possibility. To
suggest that she or the officials in her department have failed to take a decision of the possibility of
which they were blissfully unaware until this litigation commenced cannot be correct.

[44] There is one other problem that constitutes an insuperable bar to this contention being upheld.
It is that the administrative action sought to be condemned is action that can only occur in the
future. In other words we are asked to condemn as unfair something that has not yet happened
and may not ever happen and if it does happen may take place in a different legislative and
economic environment. For all we know, if expropriation is decided upon in the future, the process
will be a model of administrative fairness with the appellants being given every opportunity to make
representations to claim adequate compensation and the like. We simply do not know. In my view it
is not in general permissible to seek an interdict against future administrative action when the
parameters of such action are so indistinct. For those reasons I reject the appellants claim to relief
based on unfair administrative action.
New Clicks South Africa (Pty) Ltd b Tshabalala-Msimang 2005 (2) SA 530 (C) [see summary
Ruconnected] [only sections relevant to a decision]
Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) [see summary
Ruconnected] [only sections relevant to a decision]
Adversely Affecting Rights
New Clicks case 2005 (2) SA 530 (C)

- done
Minister of Defence and others v Dunn 2007(6) SA 52 (SCA)

24 of 73
The Supreme Court of Appeal today held that, in an application to review a decision of an
administrative body, a court cannot award compensation to an aggrieved party which has the effect
of substituting its own decision for that of the administrative body. Captain Dunn was employed by
the South African Navy. He applied for promotion to a new post in the South African National
Defence Force. He was one of four candidates who were considered by a special placement board
for a new post at a level higher than that held by Dunn. The special board met to consider the
candidates and recommended to the Minister that another officer be appointed to the new post. It
was not a promotion for him as he was already on that level. The Minister made the appointment.
Dunn was aggrieved at the decision and sought to have it set aside on several bases under the
Promotion of Administrative Justice Act 3 of 2000. He complained that the procedure was not
transparent, was unfair and was flawed by several irregularities. The Pretoria High Court upheld an
alternative claim that 2 Dunn be awarded compensation. It ordered the SANDF to pay Dunn the
salary he would have been paid had he been promoted to the post. The Supreme Court of Appeal
found that none of the irregularities complained of had been established. The SANDF had
complied with the procedures laid down for appointment and promotion to high-level posts. It found
also that Dunn had no legitimate expectation to be interviewed by the special placement board
despite the fact that he had been asked to make himself available for an interview, which had
subsequently been cancelled. An interview would not necessarily have resulted in a different
outcome. Compensation may be awarded under the Act but only in exceptional circumstances.
None had been shown to exist and Dunn had suffered no financial loss. The award of damages to
him was thus impermissible. The appeal was upheld.
Section 8(1)(c)(ii)(bb) of the PAJA provides that a court, having reviewed an administrative action,
may set it aside and, in exceptional circumstances, direct the administrator concerned or any other
party to the proceedings to pay compensation. This remedy had been awarded in the court below
in Minister of Defence & others v Dunn 2007 (6) SA 52 (SCA). The Supreme Court of Appeal
found, however, that the decision not to promote Dunn had not been tainted by reviewable
irregularity. However, the court still proceeded to deal with the remedy of compensation (effectively,
a salary increase) that had been awarded, because, Lewis JA said, it was important to clarify when
compensation as a remedy on review was appropriate (para [33]). The first point to note is that the
court below did not set aside the promotion of the successful candidate, as he had done nothing
wrong (para [34]). That, on its own, may be a problem, because section 8(1)(c)(ii)(bb) appears on
its face to contemplate compensation as a remedy additional to the setting aside of the offending
administrative action, and not as a substitute for it. (This point is b2 ANNUAL SURVEY OF SA LAW
not made in the judgment on appeal.) Lewis JA found that the grounds upon which it was held that
exceptional circumstances were present had no basis in fact and, in the case of one ground that
had a factual basis (the way the appellants had furnished documents) justified only an appropriate,
presumably punitive, costs order. She held that even if exceptional circumstances had been
established, 'it is impermissible for a court to substitute its own decision - in this case to give Dunn
an effective promotion in the Defence Force - for that of the Minister' (para [39]). Finally, she stated
that if Dunn had wanted compensation, he should have proved a loss, which he did not do (para
[40]).

Wessels v Minister of Justice and Constitutional Development 2010 (1) SA 128 (GNP)

25 of 73
The approach to identifying administrative action taken in Wessels v Minister for Justice and
Constitutional Development (supra) can also be contrasted to that in Sokhela (supra). In Wessels,
the court held that the appointment of a magistrate (a regional court president, to be precise) by
the Minister of Justice amounted to administrative action. In arguing that it did not, the respondents
submitted that such action was executive in nature and thus not administrative. The court rejected
this view. It relied primarily on the list of exclusions in the definition for its finding. It noted that
appointment decisions of the President in terms of section 84(2)(e) of the Constitution were clearly
deliberately not included in the list of exclusions, as decisions in the appointment of magistrates
were not included in para (gg) of the definition of 'administrative actions', which excludes only
decisions to appoint judges (at 138H). From these exclusions in the list of exclusions, the court
inferred that decisions to appoint magistrates were indeed included in the definition (at 138A-B and
139C-D). Thus, contrary to the view expressed by Wallis J in Sokhela, the court in Wessels
decided on the executive versus administrative nature of the decision solely with reference to the
list of exclusions. In Wessels, the court also expressly endorsed the determination theory in
relation to the requirement in the definition that administrative action adversely affects rights. With
reference to the interpretation of this part of the definition in Grey's Marine Hout Bay (Pty) Ltd and
Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA), the court held that '"the
capacity to affect legal rights" is a synonym for "determines rights"' (at 137A). Accordingly, the court
held that since the applicant's rights were determined when another candidate was appointed to
the position for which she also applied, her rights were adversely affected, and such conduct would
constitute administrative action under the PAJA (at 137D).
Wessels v Minister for Justice and Constitutional Development (supra) is a very important
judgment for the application of the right to reasons under the PAJA. In this matter the court held
that a disappointed applicant for a post as regional court president had a right to request reasons
under section 5 of the PAJA for the decision to appoint another candidate. Relying on the
determination theory, the court held that the appointment decision amounted to administrative
action in terms of the PAJA. On this same reasoning, the court also held that section 5 of the PAJA
applies - that the applicant's rights were materially and adversely affected by the administrative
action (at 139H). The court thus also applied the determination theory to section 5(1) of the PAJA,
which considerably extends the application of that section. Furthermore, in a highly significant
obiter remark, the court stated that 'the principle of legality, which includes rationality and accountADMINISTRATIVE LAW 03 ability, imposes a duty upon the functionary exercising a public power
to provide reasons for its act or decision' (at 1411). This suggests that the duty to provide reasons
extends well beyond section 33(2) of the Constitution and the PAJA (with their internal limitations)
to all exercises of public power

Greys Marine Hout Bay v Minister of Public Works 2005 (6) SA 313 (SCA)
The Supreme Court of Appeal today (Friday 13 May 2005) upheld a decision by the Minister of
Public Works to let a portion of the Hout Bay quayside to a company established by a group of
women who are entering the fishing industry from which they have been historically excluded.

26 of 73
The company, Bluefin (Pty) Ltd, intends to erect and operate a fish-processing factory and ancillary
restaurant on the property. The Ministers decision to let the property to the company was opposed
by three existing tenants on the quayside, who said that the establishment of the new facility would
increase traffic congestion, impede access to the waterfront, and deprive existing tenants and
visitors of parking space. The proposal was also opposed by the Department of Environmental
Affairs. That notwithstanding, the minister granted the lease. The three tenants applied to the
Cape High Court for an order setting aside her decision, mainly on the grounds that they should
have been consulted before the Minister let the property. Their application failed and they
appealed to the SCA.

The SCA held that the tenants had not established that any of their rights or legitimate expectations
were affected by the Ministers decision and that the Minister was accordingly under no duty to
consult them before she let the property. It also held that her decision was neither arbitrary nor
irrational and was thus legally valid.

Oosthuizens Transport

- done
Exclusions
Wessels v Minister for Justice & Constitutional Development [s 84(2)(e)]
-DONE

Masethla v President of the Republic of South Africa [s 85(2)(e)]

In the second, the appellant in Maset/ha v President of the Republic of South Africa & another
2008 (1) SA 566 (CC) had been the Director-General of the National Intelligence Agency. He had
28 been appointed by the President and had also been dismissed by him. The President effected
the dismissal by unilaterally amending the terms of Masetlha's contract of employment so that it
expired two days later, rather than some 21 months later as originally stipulated. Masetlha
challenged the constitutionality of the termination of his services. The power to appoint Masetlha
and, implicitly, its inverse - the power to dismiss him - was a power vested in the President by
section 209(2) of the Constitution, which was echoed in section 3(3)(a) of the Intelligence Services
Act 65 of 2002. Moseneke DCJ held that this power was an executive power rather than an
administrative power, and that consequently it was not subject to review in terms of the PAJA, as
executive action was one of the express exclusions from the definition of administrative action. The
President's exercise of power was, however, subject to review in terms of the constitutional
principle of legality (paras [75]-[77]). One cannot fault this aspect of the judgment. The source and
nature of the power render it executive in nature. The problem that the judgment throws up relates
to the next step - whether, in exercising the power, the rule of law (of which the principle of legality

27 of 73
is part) required the President to act fairly. Moseneke DCJ held that the President was under no
such duty. I shall consider the correctness of this view below.

Procedural Fairness In Maset/ha v President of the RSA (supra), Moseneke DCJ held that when
the President terminated Masetlha's contract of employment prematurely he was not obliged to act
fairly by hearing Masetlha prior to taking the decision. While Moseneke DCJ found that the power
in question had to be exercised 'lawfully, rationally and in a manner consistent with the
Constitution', procedural fairness was not required (para [78]). The reason for this conclusion
appears to be that it 'would not be appropriate to constrain executive power to requirements of
procedural fairness, which is a cardinal feature in reviewing administrative action' (para [77]). This
conclusion and the reason for it are open to serious doubt. After all, we have accepted that the duty
to act fairly 'is a duty lying upon every one who decides anything' (Board of Education v Rice &
others 1911 AC 179 (HL) at 182). Also, and as importantly, to hold, as Moseneke DCJ does, that
procedural fairness is not a requirement of the rule of law (para [78]), is simply wrong. Every theory
of the rule of law, but for that pale version that would have legitimized the law of Nazi Germany and
apartheid South Africa, includes procedural fairness (see AS Mathews Freedom, State Security
and the Rule of Law (1986) 30). The Constitutional Court itself seems to have accepted this in De
Lange v Smuts NO & others 1998 (3) SA 785 (CC) para [46], in which it cited Mathews to the effect
that the rule of law required that, in order to protect fundamental rights, laws should be 'preannounced, general, durable and reasonably precise rules administered by regular courts or
similar independent tribunals according to fair procedures'. Moseneke DCJ is also incorrect in his
approach to determining that procedural fairness is not part of the rule of law. He lists all those
attributes that the Constitutional Court has recognized to date - that the 'authority conferred must
be exercised lawfully, rationally and in a manner consistent with the Constitution' (para [78]) - as
the full extent of the content of the rule of law rather than being only those aspects that his court
has recognized so far. It cannot be a closed list - the rule against vagueness, for example, is not
mentioned, but none would argue with the proposition that an executive instrument that
ADMINISTRATIVE LAW 41 ANNUAL SURVEY OF SA LAW is incorrigibly vague would offend
against the value of certainty that is part of the rule of law. Jeremy Woolf, Jeffrey Jowell, and
Andrew Le Sueur (De Smith's Judicial Review 6 ed (2007) 1-016) make the point that judicial
review is bound up with and justified by the rule of law, and that it 'has managed to justify. . a great
deal of the specific content of judicial review such as the requirements that laws enacted by
Parliament be faithfully executed by officials; that orders of courts should be obeyed; that
individuals wishing to enforce the law should have reasonable access to the courts; that no person
should be condemned unheard; that decisions should be communicated before they are enforced,
and that power should not be arbitrarily exercised'. Finally, Mosenenke DCJ appears to assume
that the duty to act fairly is a doctrine of administrative law. He is wrong in this respect, too. It has a
much wider application. Council of Civil Service Unions & others v Minister for the Civil Service
[ 1984] 3 All ER 935 (HL) concerned the exercise of prerogative powers (executive powers in the
parlance of our constitutional law), yet Lord Diplock held that, in respect of procedural impropriety,
'I see no reason why it should not be a ground for judicial review of a decision made under powers
of which the ultimate source is the prerogative' and that, given the difficulty of reviewing decisions
with a high policy content for irrationality, 'where the decision is one that does not alter rights or
obligations enforceable in private law but only deprives a person of legitimate expectations,
"procedural impropriety" will normally provide the only ground on which the decision is open to
judicial review' (at 951h-j). And closer to home, Heath J accepted, in Mpehle v Government of the

28 of 73
Republic of South Africa & another 1996 (7) BCLR 921 (Ck) at 931 C-G, that an executive decision
to suspend an MEC required a hearing, and that this stemmed from 'the general spirit of fairness
envisaged by the [interim] Constitution'. This authority was not considered by Moseneke DCJ. It
was recognized by Ngcobo J in his dissent that there is a close relationship between rationality and
procedural fairness in the sense that hearing affected parties tends to assist in making the eventual
decision rational, if only because the decision-maker has all the facts available to him or her (para
[184]). Ngcobo J's judgment (concurred in by Madala J) should be preferred to the majority
judgment on the application of procedural fairness. He located the duty to act fairly squarely within
the four corners of the rule of law (para [180]): 42 'It is clear from the provisions of ss 33 and 34
that our Constitution does not immunize from constitutional review decisions which have been
arrived at by a procedure which was clearly unfair. But does our Constitution adopt a different
attitude when it comes to the exercise of executive powers and sanction the making of decisions
arrived at by procedures that are clearly unfair? To my mind, the answer to this question must be in
the negative. It is a fundamental principle of fairness that those who exercise public power must act
fairly. In my view the rule of law imposes a duty on those who exercise executive powers, not only
to refrain from acting arbitrarily, but also to act fairly when they make decisions that adversely
affect an individual.' A further aspect of Maset/ha requires comment. Moseneke DCJ held that, in
any event, on the facts, Masetlha had been afforded a hearing in the sense that he had 'ample
occasion to respond to the allegations that were made against him in relation to the "Macozoma
affair"' (para [83]). These included meetings with the minister where he was asked for
explanations, the submission of a written report by him, on the request of the minister, his
involvement in the investigation by the inspector-general, and an audience with the President. But
all this does not add up to the minimum that our law requires, particularly that the affected person
be given proper notice of the action that is contemplated against him or her, proper disclosure of
the case that he or she has to meet, and an adequate opportunity to meet that case (see, for
example, R v Nomveti 1960 (2) SA 108 (E) at 117-18 and 22B-D; Heatherdale Farms (Pty) Ltd &
others v Deputy Minister of Agriculture & another 1980 (3) SA 476 (

President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA
1 (CC) (SARFU-case)par 138-148
(d) Functions and duties of the executive
[138]

The administration is that part of government which is primarily concerned with the

implementation of legislation. In the national sphere, ensuring that the administration implements
legislation is one of the responsibilities of the President and Cabinet. Their responsibilities are set
out in section 85(2) of the Constitution, which provides that:
The President exercises the executive authority, together with the other members of the Cabinet,
by
(a) implementing national legislation except where the Constitution or an Act of Parliament provides
otherwise;

29 of 73
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the Constitution or in national
legislation.
Provincial premiers and the members of their executive councils bear similar responsibilities in
relation to provincial government. Section 125(2) of the Constitution provides that:
The Premier exercises the executive authority, together with the other members of the Executive
Council, by
(a) implementing provincial legislation in the province;
(b) implementing all national legislation within the functional areas listed in Schedule 4 or 5 except
where the Constitution or an Act of Parliament provides otherwise;
(c) administering in the province, national legislation outside the functional areas listed in
Schedules 4 and 5, the administration of which has been assigned to the provincial executive in
terms of an Act of Parliament;
(d) developing and implementing provincial policy;
(e) co-ordinating the functions of the provincial administration and its departments;
(f) preparing and initiating provincial legislation; and
(g) performing any other function assigned to the provincial executive in terms of the Constitution or
an Act of Parliament.
[139]

It can be seen from these provisions that members of the executive in the national and

provincial spheres have a range of responsibilities: for preparing and initiating legislation;9[8] for
developing policy;9[9] for co-ordination of government departments;10[0] for implementing
legislation10[1] and for implementing policy.10[2] A similar range of responsibilities is conferred
upon the executive councils of municipalities.10[3] One of the tasks of the national and provincial
executives (and municipal executives) is therefore to ensure that legislation and policy are
implemented. The process of implementation is generally carried out by the public service.
Members of the executive, of course, have other functions as well, such as the development of
policy and the initiation and preparation of legislation, which are not directly concerned with
administration.
(e) The meaning of administrative action

30 of 73
[140]

In Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional

Metropolitan Council and Others,10[4] this Court held that administrative action as contemplated
in section 33 does not include within its ambit, legislative decisions taken by a deliberative and
elected legislative body established by the Constitution. Such action, we held, was not action of the
public administration, but action of a constitutionally empowered legislature. Similarly, in Nel v Le
Roux NO and Others,10[5] the Court held that a summary sentencing procedure was judicial, not
administrative, action and therefore it did not fall within the ambit of the administrative justice
clause. However, in the present case, we are concerned not with the acts of a legislature, nor with
judicial acts, but with acts of the President in terms of section 84 of the Constitution. The question
is whether the exercise of the power conferred upon the President by section 84(2)(f) constitutes
administrative action.
[141]

In section 33 the adjective administrative not executive is used to qualify action. This

suggests that the test for determining whether conduct constitutes administrative action is not the
question whether the action concerned is performed by a member of the executive arm of
government. What matters is not so much the functionary as the function. The question is whether
the task itself is administrative or not. It may well be, as contemplated in Fedsure,10[6] that some
acts of a legislature may constitute administrative action. Similarly, judicial officers may, from time
to time, carry out administrative tasks.10[7] The focus of the enquiry as to whether conduct is
administrative action is not on the arm of government to which the relevant actor belongs, but on
the nature of the power he or she is exercising.
[142]

As we have seen, one of the constitutional responsibilities of the President and cabinet

members in the national sphere (and premiers and members of executive councils in the provincial
sphere) is to ensure the implementation of legislation. This responsibility is an administrative one,
which is justiciable, and will ordinarily constitute administrative action within the meaning of
section 33. Cabinet members have other constitutional responsibilities as well. In particular, they
have constitutional responsibilities to develop policy and to initiate legislation. Action taken in
carrying out these responsibilities cannot be construed as being administrative action for the
purposes of section 33. It follows that some acts of members of the executive, in both the national
and provincial spheres of government will constitute administrative action as contemplated by
section 33,10[8] but not all acts by such members will do so.
[143]

Determining whether an action should be characterised as the implementation of legislation

or the formulation of policy may be difficult. It will, as we have said above, depend primarily upon
the nature of the power. A series of considerations may be relevant to deciding on which side of the
line a particular action falls. The source of the power, though not necessarily decisive, is a relevant

31 of 73
factor.10[9] So too is the nature of the power, its subject matter, whether it involves the exercise of
a public duty, and how closely it is related on the one hand to policy matters, which are not
administrative, and on the other to the implementation of legislation, which is.11[0] While the
subject matter of a power is not relevant to determine whether constitutional review is appropriate,
it is relevant to determine whether the exercise of the power constitutes administrative action for the
purposes of section 33. Difficult boundaries may have to be drawn in deciding what should and
what should not be characterised as administrative action for the purposes of section 33. These will
need to be drawn carefully in the light of the provisions of the Constitution and the overall
constitutional purpose of an efficient, equitable and ethical public administration. This can best be
done on a case by case basis.
(f) Section 84(2) of the Constitution
[144]

Under our Constitution, the President is both head of state and head of the national

executive. Section 84(2) of the Constitution provides that the President is responsible for:
(a) assenting to and signing Bills;
(b) referring a Bill back to the National Assembly for reconsideration of the Bills constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on the Bills constitutionality;
(d) summoning the National Assembly, the National Council of Provinces or Parliament to an
extraordinary sitting to conduct special business;
(e) making any appointments that the Constitution or legislation requires the President to make,
other than as head of the national executive;
(f) appointing commissions of inquiry;
(g) calling a national referendum in terms of an Act of Parliament;
(h) receiving and recognising foreign diplomatic and consular representatives;
(i) appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives;
(j) pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; and
(k) conferring honours.
In President of the Republic of South Africa and Another v Hugo,11[1] this Court held that the
powers conferred upon the President by section 82(1) of the interim Constitution, which are similar
to those conferred by section 84(2) of the 1996 Constitution, were powers which historically
originated from the royal prerogative and were enjoyed by the head of state. In neither the interim
Constitution nor the 1996 Constitution, however, is there any reference to the prerogative. The
powers conferred are limited to those expressly listed. They are conferred upon the President as
head of state, rather than as head of the national executive. This conclusion is suggested not only
by the historical antecedents of these powers, but also by the provision in section 84(2)(e) which

32 of 73
empowers the President to make appointments required by the Constitution or legislation other
than those appointments he must make as head of the national executive. The clear implication is
that those appointments made under section 84(2) are made as head of state.
[145]

All of the powers conferred by section 84(2) are original constitutional powers. They are

concerned with matters entrusted to the head of state, subject in some cases and only for the initial
transitional period, to an obligation to consult with the Deputy President.11[2] None of them is
concerned with the implementation of legislation in any sphere of government. The exercise of
some of the powers is strictly controlled by the express provisions of the Constitution. For example,
the responsibility conferred by subsections 84(2)(a) (c) concerning the assenting to and signature
of Bills is regulated by section 79 of the Constitution which provides as follows:
(1) The President must either assent to and sign a Bill passed in terms of this Chapter or, if the
President has any reservations about the constitutionality of the Bill, refer it back to the National
Assembly for reconsideration.
(2) The joint rules and orders must provide for the procedure for the reconsideration of a Bill by the
National Assembly and the participation of the National Council of Provinces in the process.
(3) The National Council of Provinces must participate in the reconsideration of a Bill that the
President has referred back to the National Assembly if
(a) the Presidents reservations about the constitutionality of the Bill relate to a procedural matter
that involves the Council; or
(b) section 74(1), (2) or (3)(b) or 76 was applicable in the passing of the Bill.
(4) If, after reconsideration, a Bill fully accommodates the Presidents reservations, the President
must assent to and sign the Bill; if not, the President must either
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its constitutionality.
(5) If the Constitutional Court decides that the Bill is constitutional, the President must assent to
and sign it.
These are very specifically controlled constitutional responsibilities directly related to the legislative
process and the constitutional relationship between the executive, the legislature and the courts. In
exercising these responsibilities, the President is clearly not performing administrative acts within
the meaning of section 33. Section 84(2)(d) and (e) which refer to the Presidents power to
summon extraordinary sittings of Parliament and his responsibility for making appointments
required by the Constitution are similarly narrow constitutional responsibilities which are not related
to the administration of legislation but to the execution of provisions of the Constitution.

33 of 73
[146]

The remaining section 84(2) powers are discretionary powers conferred upon the President

which are not constrained in any express manner by the provisions of the Constitution. Their scope
is narrow: the conferral of honours; the appointment of ambassadors; the reception and recognition
of foreign diplomatic representatives; the calling of referenda; the appointment of commissions of
inquiry and the pardoning of offenders. They are closely related to policy; none of them is
concerned with the implementation of legislation. Several of them are decisions which result in little
or no further action by the government: the conferral of honours, the appointment of ambassadors
or the reception of foreign diplomats, for example. It is readily apparent that these responsibilities
could not suitably be subjected to section 33. In the case of the appointment of commissions of
inquiry, it is well-established that the functions of a commission of inquiry are to determine facts
and to advise the President through the making of recommendations.11[3] The President is bound
neither to accept the commissions factual findings nor is he or she bound to follow its
recommendations.11[4]
[147]

A commission of inquiry is an adjunct to the policy formation responsibility of the President.

It is a mechanism whereby he or she can obtain information and advice. When the President
appointed the commission of inquiry into rugby he was not implementing legislation; he was
exercising an original constitutional power vested in him alone. Neither the subject matter, nor the
exercise of that power was administrative in character. The appointment of the commission did not,
therefore, constitute administrative action within the meaning of section 33. It should, however, be
emphasised again, that this conclusion relates to the appointment of the commission of inquiry
only. The conduct of the commission, particularly one endowed with powers of compulsion, is a
different matter.
[148]

It does not follow, of course, that because the Presidents conduct in exercising the power

conferred upon him by section 84(2)(f) does not constitute administrative action, there are no
constraints upon it. The constraints upon the President when exercising powers under section
84(2) are clear: the President is required to exercise the powers personally and any such exercise
must be recorded in writing and signed;11[5] until 30 April 1999, the President was required to
consult with the Deputy President; the exercise of the powers must not infringe any provision of the
Bill of Rights; the exercise of the powers is also clearly constrained by the principle of legality11[6]
and, as is implicit in the Constitution, the President must act in good faith and must not misconstrue
the powers.11[7] These are significant constraints upon the exercise of the Presidents power. They
arise from provisions of the Constitution other than the administrative justice clause. In the past,
under the doctrine of parliamentary supremacy, the major source of constraint upon the exercise of
public power lay in administrative law, which was developed to embrace the exercise of public
power in fields which, strictly speaking, might not have constituted administration. Now, under our

34 of 73
new constitutional order, the constraints are to be found throughout the Constitution, including the
right, and corresponding obligation, that there be just administrative action.

Permanent Secretary, Department of Education and Welfare, Eastern Cape v Ed-U-College

(PE) 2001 (2) SA 1 (CC) Par 18, 21 (policy formulation in the broad sense v policy
formulation in the narrow sense)
[18] In President of the Republic of South Africa and Others v South African Rugby Football Union
and Others14 this Court held that, in order to I determine whether a particular act constitutes
administrative action, the focus of the enquiry should be the nature of the power exercised, not the
identity of the actor.15 The Court noted that senior elected members of the Executive (such as the
President, A Cabinet Ministers in the national sphere and members of executive councils in the
provincial sphere) exercise different functions according to the Constitution.16 For example, they
implement legislation, they develop and implement policy and they prepare and initiate legislation.
At times the exercise of their functions will involve administrative action and at other times it will
not. In particular, the Court held that when such a senior member of B the Executive is engaged
upon the implementation of legislation, that will ordinarily constitute administrative action. However,
senior members of the Executive also have constitutional responsibilities to develop policy and
initiate legislation and the performance of these tasks will generally not constitute administrative C
action.17 The Court continued as follows:
'Determining whether an action should be characterised as the implementation of legislation or
the formulation of policy may be difficult. It will, as we have said above, depend primarily upon the
nature of the power. A series of considerations may be relevant to deciding on which side of the
line a particular action falls. The D source of the power, though not necessarily decisive, is a
relevant factor. So, too, is the nature of the power, its subject-matter, whether it involves the
exercise of a public duty and how closely it is related on the one hand to policy matters, which are
not administrative, and on the other to the implementation of legislation, which is. While the
subject-matter of a power is not relevant to determine whether constitutional review is appropriate,
it is relevant to determine whether the exercise of the power constitutes administrative action for
the purposes of s 33. Difficult boundaries A may have to be drawn in deciding what should and
what should not be characterised as administrative action for the purposes of s 33. These will need
to be drawn carefully in the light of the provisions of the Constitution and the overall constitutional
purpose of an efficient, equitable and ethical public administration. This can best be done on a
case by case basis.'18 B
(Footnotes omitted.) It should be noted that the distinction drawn in this passage is between the
implementation of legislation, on the one hand, and the formulation of policy on the other. Policy
may be formulated by the Executive outside of a legislative framework. For example, the Executive
may determine a policy on road and rail transportation or on tertiary education. The formulation of
such policy C involves a political decision and will generally not constitute administrative action.
However, policy may also be formulated in a narrower sense where a member of the Executive is
implementing legislation. The formulation of policy in the exercise of such powers may often
constitute administrative action.

35 of 73
[21] In the present case, s 48(2) of the Schools Act empowers the MEC to grant subsidies to
independent schools from money allocated for that purpose by the legislature. Clearly, therefore,
unless money is allocated by the legislature for this purpose, no subsidy may be F granted. The
principle of subsidy allocation to independent schools is determined in the first instance by the
legislature. Once it has allocated money for independent schools, the MEC is then empowered to
determine the manner of how it is to be spent. Although there are a range of ways in which this
power can be exercised, it must always be G exercised within the constraints of the budget set by
the legislature. Furthermore, it is not a power which the legislature would be suited to exercise. The
determination of which schools should be afforded subsidies and the allocation of such subsidies
are primarily administrative tasks. The determination of the precise criteria or formulae for the grant
of subsidies does contain an aspect of policy H formulation but it is policy formulation in a narrow
rather than a broad sense. The decision apparently constitutes a broad policy decision because it
purports to determine how the allocated budget is to be distributed and not the amount to be given
to each school. However, on closer scrutiny it is in fact not so broad because the MEC I
determines not only the formula but also in effect the specific allocations to each school. This case
may be close to the borderline. However, I am persuaded that the source of the power, being the A
legislature, the constraints upon its exercise and its scope point to the conclusion that the exercise
of the s 48(2) power constitutes administrative action, not the formulation of policy in the broad
sense as suggested by the applicants. This conclusion is consistent with the decision of this Court
in Premier, Mpumalanga referred to above.

Scalabrini Centre, Cape Town v Minister of Home Affairs 2013 (3) SA 531 (WCC) (Scalabrini
HC)
The applicants were a non-profit organisation (Scalabrini) which existed to assist migrant
communities and displaced people, and its trustees. In June 2012, Scalabrini launched an
application in which it sought urgent interim interdictory relief and final review relief concerning a
decision by the Department of Home Affairs to close a Refugee Reception Office in Cape Town.
The court hearing the application, ordered that pending the final determination of the review
application, the respondents were to ensure that a Refugee Reception Office remained open and
fully functional within the Cape Town Metropolitan Municipality at which new applicants for asylum
could make application for asylum and be issued with permits in terms of section 22 of the
Refugees Act 130 of 1998. However, the Department did not comply with the order.
Held The decision to close the Refugee Reception Office was reviewable and liable to be set
aside on several of the grounds set out in section 6(2) of the Promotion of Administrative Justice
Act 3 of 2000. Even if the latter Act was inapplicable, the closure decision would still be subject to
review in terms of the legality principle. In terms of the legality principle, there was an absence of
an objectively rational relationship between the closure decision and the purposes of section 8(1)
of the Promotion of Administrative Justice Act. Furthermore, the decision was vitiated by the
second respondents failure to apply his mind properly to the matter.
The second respondents decision was declared unlawful and was set aside, and the first to third
respondents were directed to ensure that by a stipulated date, a Refugee Reception Office was
open and fully functional.

36 of 73
Minister of Home Affairs v Scalabrini Centre, Cape Town 2013 (6) SA 421 (SCA) (Scalabrini
SCA) [57]-[58] (see also the minority view by Willis JA [82]-[83])
[57]
I think it is clear from those and other cases that decisions heavily influenced by policy generally
belong in the domain of the executive. It seems to me that if decisions of that kind are to be
deferred to by the courts then that must necessarily be a strong guide to what falls outside
administrative action and the review powers given to the courts by PAJA. The more a decision is
to be driven by considerations of executive policy the further it moves from being reviewable under
PAJA and vice versa. That seems to me to be consistent with SARFU, in which it was said that one
of the considerations to be taken into account in determining what constitutes administrative action
is how closely it is related . . . to policy matters, which are not administrative.
[58]
While that is not necessarily the only factor that is relevant to whether conduct is administrative
action, I think it is sufficient for our decision in this case. The question whether a Refugee
Reception Office is necessary for achieving the purpose of the Act is quintessentially one of policy.
Where, and how many, offices should be established, will necessarily be determined by matters
like administrative effectiveness and efficiency, budgetary constraints, availability of human and
other resources, policies of the department, the broader political framework within which it must
function, and the like. I do not think courts, not in possession of all that information, and not
accountable to the electorate, are properly equipped or permitted to make those decisions.
[82]
It has been edifying to read the judgment of Nugent JA. I concur with much of what that he has
said. I regret that I disagree with his conclusions. Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and others44 provides the lodestar by which to navigate ones
way through this case. Bato Star makes it clear that the decision by the Director-General of Home
Affairs, which has been the subject of judicial scrutiny both in the High Court and this Court
constitutes administrative action in terms of section 1 of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA).
[83]
If the decision of the Chief Director in the Department of Environmental Affairs and Tourism relating
to the allocation of fishing quotas was held by the Constitutional Court to have been reviewable as
administrative action in terms of PAJA in Bato Star then, by parity of reasoning, so must this
decision of the Director-General. Both Bato Star and this case have involved questions of policy
and, ultimately, of politics as well as the exercising of a public power45 and the performing of a
public power in terms of an empowering provision,46 as provided for in PAJA. Fishing quotas in
South Africa are about sustainable development and economic transformation (an issue which
loomed large in Bato Star). No less than asylum for refugees, both sustainable development and
economic transformation demand wisdom and compassion if we are to have a future on this

37 of 73
planet. Both sustainable development and the tragedy that there should even be refugees require
that we develop a deepening awareness, among all people, of our shared humanity.

Beauvallon High Court - see para [13]-[19]

[13] Certain grounds of review in terms of the Promotion of Administration of Justice Act, 3 of 2000
(PAJA) were relied on namely that the decisions were procedurally unfair (s6(2)(c)), a material or
mandatory procedure or condition prescribed by an empowering provision was not complied with
(s6(2)(b)), irrelevant considerations were taken into account or relevant considerations not
considered (s6(2)(e)(iii)), the decisions were not rationally connected to the information before the
decision-maker or the reasons given for it (s6(2)(f)(ii)(cc) and (dd)), the decisions were so
unreasonable that no reasonable person could have made them (s6(2)(h)).
[14] In the cases of Beauvallon Secondary school (Beauvallon) and Lavisrylaan Primary school
(Lavisrylaan) the applicants complained that the reasons initially given by the Minister for the
proposed closure of the school differed significantly from those cited in his statement of 16 October
2012. He had failed to explain the change in his reasoning. Finally, the applicants relied on a large
number of school-specific grounds including numerous alleged errors of fact made by the Minister
in his decision-making process in relation to most if not all the schools and in many cases relating
to the issues of multi- grade teaching and whether the numbers at various schools could be said to
have dwindled or declined.
[15] On receipt of the record the applicants filed a supplementary founding affidavit in which they
formalised and expanded upon their constitutional challenge to s33 of the Act. Amongst the points
made therein were the following: The departmental officials who chaired the public meetings did no
more than record them with the result that the public hearings were completely inadequate as a
means of providing the communities with a reasonable opportunity to engage on the proposed
closure of the schools. In this regard it was stated that in many instances the dogged adherence to
the stated purpose for the public hearing by the departmental officials, namely, to only receive
representations and not to debate the issues, resulted in the presiding officer refusing to provide
clarity or detail on the stated reasons for the closure when requested to do so by attendees at the
public hearings. This, it was stated, was contrary to the departments own guidelines. For the rest,
the applicants merely expanded on the grounds of review initially cited in their founding affidavit.
[16] On 21 December 2012 the majority of the Full Bench which heard the interdict application
(Desai J and Baartman J, Davis J dissenting) granted the applicants an interim order interdicting
the closure of the various schools and made various orders ancillary thereto the purpose and effect
of which was to allow those schools to continue functioning as normal. The Court directed further
that the interdict was to remain in force until the final resolution of these review proceedings,
inclusive of all appeals.
[17] Some detail of the applicants allegations regarding their grounds of review is appropriate.
Regarding the initial reasons cited for closure of the schools in the letters to the SGB it was said
that these were simply too short and in no way reflected the complexity of the decisions involved in
potentially closing any schools. It was submitted that they should at the very minimum have
matched the length of the departmental report made to the Minister recommending the closure of

38 of 73
the schools, including the annexures. The complaint was further made that in some cases the
reasons were vague on their face with the result that the school representatives did not know
what the claim meant and consequently could not rebut it. It was said, furthermore, that the brevity
of the reasons led to fatal misunderstandings and miscommunication. In support of this allegation it
was stated that if one had regard to the transcripts of the public meetings one sees page after
page of emotional parents of community leaders describing the importance of the school, the
history of the school or how happy the learners are at the school. In this regard the applicants
submitted that those persons quite reasonably believed that they were making valid submissions to
the Minister and that the respondents were at fault in not advising that these arguments would be
dismissed as emotional and that the affected parties should rather use the meeting to brainstorm
plans, for example, to increase learner enrolment.
[18] The applicants contended that the Ministers closure decisions were arbitrary and irrational in
that there were no legitimate reasons why some schools were kept open and others closed. This
submission was made against the backdrop of certain schools being kept open whilst others,
whose circumstances were said to have been similar, were closed. Further contentions were that
no identifiable pattern or clear system of decision- making could be identified hence, it was
submitted, the Minister had acted in an arbitrary fashion when making the closure decisions.
Reliance was placed on the Ministers failure to consult with SADTU before making the closure
decision, the contention being that this was an unprecedented step and that SADTU alone, as
opposed to individual teachers, had the resources and expertise to make informed long term
commentary on the closure of schools.
[19] As far as the constitutional challenge was concerned the applicants continued to maintain that
the procedure followed by the Minister was flawed and had failed to comply with s33(2)(a) in that
the schools had not been giventhe substance or the gist of the case against them. To the extent
that this was permitted by s33(2) it was contended the provisions were unconstitutional. Secondly
the applicants contended that s33(2) was unconstitutional by virtue of the Minister being accorded
an overbroad discretion inasmuch as he was not required to take into account the effect of a
closure decision on the governments ability to meet its obligation to provide basic education in
terms of s29(1)(a) of the Constitution, whether learners could be accommodated at other schools;
had access to transport, access to other schools, whether a school closure could affect learners
safety or security or, generally, whether the closure would have any impact on the ability of
learners to access their right to receive basic education.

Minister of Education for the Western Cape v Beauvallon Secondary School 2015 (2) SA 154
(SCA) Leach JA see para [11] [12]
[16] Attractive though this argument may be, I do not think it is necessary in the present
circumstances to reach a final decision on the issue. I am aware that as a rule a court considering
the review of a decision of a public official should determine whether or not the proceedings are
governed by PAJA.9 But I do not believe that rule to be rigid and inflexible, as it is indeed now well

39 of 73
established that even in cases where PAJA is not of application, the principle of legality may be
relied upon to set aside an executive decision made not in accordance with the empowering
statute.
[11] Courts are so often called upon to decide whether or not a decision by a public official is
administrative in nature that one is left to ponder to what extent PAJA has in fact muddied the
waters rather than provided certainty on the issue. Part of the problem is the definition of
administrative action set out in PAJA. Variously and correctly described as being extremely
narrow and highly convoluted1 and cumbersome,2 it embraces the concept of an action or
decision taken by a public body, official or functionary of an administrative nature. Conduct of that
nature was described, in broad terms, by this court in Greys Marine3 as the conduct of the
bureaucracy (whoever the bureaucratic functionary might be) in carrying out the daily functions of
the State, which necessarily involves the application of policy, usually after its translation into law,
with direct and immediate consequences for individuals or groups of individuals. And although
administrative action excludes the executive powers or functions of the Provincial Executive
which clearly include the formulation of government policy the implementation of policy is
generally regarded as being administrative in nature.4 Moreover, a procedural requirement
affording affected parties a hearing before a decision is taken (the purpose of which is of course to
ensure that there has been a full and proper appraisal of the relevant facts and circumstances,
including possible alternatives to the proposed action) is the hallmark of administrative action.

[12] There is no simple litmus test to determine whether a decision by a public official is
administrative or executive in nature, and in order to determine the issue a close analysis needs to
be undertaken of the nature of the public power or function in question5 in the light of the facts of
each case.6 In doing so, it is important to remember that a decision heavily influenced by
considerations of policy is a clear indication of it being executive, rather than administrative, in
nature. In Scalabrini, dealing with the closure of a refugee reception office, Nugent JA stressed the
importance of the separation of powers and that a courts primary responsibilities do not include
making decisions reserved for the other branches of government7 before going on to say:
The question whether a Refugee Reception Office is necessary for achieving the purpose of the
Act is quintessentially one of policy. Where, and how many, offices should be established will
necessarily be determined by matters like administrative effectiveness and efficiency, budgetary
constraints, availability of human and other resources, policies of the department, the broader of
political framework within which it must function, and the like. I do not think courts, not in
possession of all that information, and not accountable to the electorate, are properly equipped or
permitted to make those decisions.8

40 of 73

Mazibuko v City of Johannesburg [executive power see criticism]

Perhaps the most surprising judgment in this regard was that of the Constitutional Court in
Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC), 2010 (3) BCLR 239,
which held that a decision taken by the respondent to approve the implementation of a water
services plan was not administrative action but an exercise of executive powers (paras [130][131]). This finding is surprising given the court's own acknowledgement that the provision of water
services takes place in terms of the Water Services Act 108 of 1997. It would thus seem that the
council decision at stake was essentially the implementation of legislation. To the extent that this
decision involved policy 44 ANNUAL SURVEY OF SA LAW considerations (something which the
court did not deal with at any length in its assessment of whether the decision qualifies as
administrative action), the judgment does not mention the directly relevant decision in Permanent
Secretary, Department of Education, Eastern Cape v Ed-U-College (PE) Inc 2001 (2) SA 1 (CC). In
Ed-U-College, the court developed an approach distinguishing between policy formulation in a
broad and a narrow sense to determine in particular cases whether action falls on either side of the
executive-administrative divide. Under this approach a clear legislative framework in terms of
which the relevant decision is taken is a strong indication of administrative rather than executive
(policy) action.
Today, the Constitutional Court delivered a judgment in a case concerning the right of access to
water entrenched in section 27 of the Constitution, which provides that everyone has the right to
sufficient water. The case considers the lawfulness of Operation Gcinamanzi, a project the City
of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses and
non-payment for water services in Soweto. This project involved re-laying water pipes to improve
water supply and reduce water losses, and installing pre-paid meters to charge consumers for use
of water in excess of the 6 kilolitre per household monthly free basic water allowance. Mrs
Mazibuko and four other residents of Phiri, Soweto (the applicants) challenged, firstly, the City of
Johannesburgs Free Basic Water policy in terms of which 6 kilolitres of water are provided
monthly for free to all households in Johannesburg and, secondly, the lawfulness of the installation
of pre paid water meters in Phiri. The three respondents are the City of Johannesburg (the City);
Johannesburg Water and the national Minister for Water Affairs and Forestry. The applicants
succeeded in the South Gauteng High Court. The Court found that the installation of pre-paid water
meters in Phiri was unlawful and unfair. It also held that the Citys Free Basic Water policy was
unreasonable and therefore unlawful. It ruled that the 2 City should provide 50 litres of free basic
water daily to the applicants and similarly placed residents of Phiri. On appeal, the Supreme
Court of Appeal varied this order. The Supreme Court of Appeal held that 42 litres of water per day
would be sufficient water within the meaning of the Constitution, and directed the City to
reformulate its policy in light of this conclusion. The Supreme Court of Appeal also held that
installation of the pre-paid water meters was unlawful on the ground that the Citys By-laws did not
make provision for them in these circumstances. The Court gave the City two years to rectify the
By-laws. The Supreme Court of Appeal did not consider whether the manner in which the meters
were installed was fair. The applicants applied to this Court for leave to appeal against the
judgment of the Supreme Court of Appeal and, in effect, sought reinstatement of the High Court

41 of 73
order. All the respondents also sought leave to cross appeal the order of the Supreme Court of
Appeal. All the parties before this Court, including the applicants, accepted that the old system of
water supply to Soweto was unsustainable and had to be changed. The applicants however
asserted that the Citys policy and the manner in which it was implemented is unlawful,
unreasonable, unfair and in breach of their constitutional right to sufficient water. Once the City had
opted for Operation Gcinamanzi, there was extensive consultation with communities about what
the project would entail and how it would be implemented. The initial implementation in early 2004
caused unhappiness amongst residents. By the time the applicants brought their challenge in the
High Court eighteen months later, the vast majority of residents had accepted pre-paid water
meters. According to a survey the City undertook, they were satisfied with the new system.
Moreover, the amount of unaccounted for water in Soweto had been successfully curtailed. The
City provided a detailed account of Operation Gcinamanzi and how it came to be adopted and
implemented. It also made plain that its Free Basic Water policy has been under constant review
since it was adopted. In particular, the City sought to ensure that those with the lowest incomes are
provided not only with an additional free water allowance, but also with assistance regarding the
charges levied for other services provided by the City, such as electricity, refuse removal and
sanitation. The City accepts that it is under a continuing obligation to take measures progressively
to achieve the right of access to sufficient water. The Constitutional Court held that the obligation
placed on government by section 27 is an obligation to take reasonable legislative and other
measures to seek the progressive realisation of the right. In relation to the Free Basic Water policy,
therefore, the question is whether it is a reasonable policy. The Court notes that it is implicit in the
concept of progressive realisation that it will take time before everyone has access to sufficient
water. The Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it
is not appropriate for a court to give a quantified content to what constitutes sufficient water
because this is a matter best addressed in the first place by the government. The 3 national
government has adopted regulations which stipulate that a basic water supply constitutes 25 litres
per person daily; or 6 kilolitres per household monthly (upon which the Citys Free Basic Water
policy is based). The Court concluded that it cannot be said that it is unreasonable for the City not
to have supplied more, particularly given that, even on the applicants case, 80% of the households
in the City will receive adequate water under the present policy. The Court noted that 100 000
households within Johannesburg still lack access to the most basic water supply, that is a tap
within 200m of their household. On pre-paid water meters, the Court held (contrary to the High
Court and the Supreme Court of Appeal) that the national legislation and the Citys own by-laws
authorise the latter to introduce pre-paid water meters as part of Operation Gcinamanzi. The Court
concluded that the installation of the meters was neither unfair nor discriminatory. The Court
affirmed the democratic value of litigation on social and economic rights. It noted that the
applicants case required the City to account comprehensively for the policies it has adopted and
establish that they are reasonable. During the litigation, and perhaps because of it, the City has
repeatedly reviewed and revised its policies to ensure that they do promote the progressive
achievement of the right of access to sufficient water. The Court thus upheld the appeal by the City
and Johannesburg Water and the Minister. The orders of the High Court and Supreme Court of
Appeal were, therefore, set aside.

Democratic Alliance v Ethekwini Municipality par [17] - [21]

42 of 73
[17] For the primary legal basis of its challenge to both decisions the appellant relied on the
Promotion of Administrative Justice Act 3 of 2000 (PAJA). The respondent denied, however, that
PAJA finds application because, so it contended, the impugned decisions do not constitute
administrative action contemplated in PAJA as an essential prerequisite for all judicial review in
terms of that Act. The court a quo considered the issue thus arising for the most part of its
judgment. Eventually it agreed with the argument of the respondent. Hence it concluded that PAJA
is not applicable. On appeal the issue was again raised by the appellant. Soon after the
commencement of his argument before us, counsel for the appellant, however, conceded that the
decision of the court a quo on this aspect could not be faulted.
[18] In the light of the concession, which in my view was rightly made, I propose to deal with the
issue without elaboration. The definition of administrative action in PAJA expressly excludes the
executive and legislative functions of a municipal council. The question is therefore whether the
impugned decisions constituted the exercise of an executive or a legislative function by the council,
on the one hand, or administrative action, on the other. The starting point in answering this
question seems to lie in the determination of the nature of the impugned decisions and the source
of the councils authority under which these decisions were taken. As I see it, that source is to be
found, firstly in ss 151 and 156, read with part B of Schedules 4 and 5 of the Constitution; secondly
in s 83(1) of the Municipal Structures Act; and thirdly in s 208 of the Local Authorities Ordinance 25
of 1974 (KZN). The import of these provisions, in short, is to vest the control over streets and
public places within a municipal area and pertinently the authority to name and rename these
streets and public places in the council of that municipality.
[19] The impugned decisions were therefore taken by the council in the exercise of direct authority
as opposed to delegated authority which has its origin in the Constitution itself. These
decisions were taken by the elected members of the council, in open plenary session and by
majority vote, as contemplated by s 160(3)(c) of the Constitution. Moreover, the impugned
decisions were clearly influenced by political considerations for which the elected members are
politically accountable to the electorate. According to Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC) para 41
these are all pointers away from administrative action (See also Mazibuko v City of Johannesburg
2010 (4) SA 1 (CC) para 130). As the decision in Fedsure also implies, the fact that a particular
decision is not incorporated in a bye-law, does not in itself exclude it from the category of
legislative functions. (As to the nature of the decisions in Fedsure, see paras 1 and 11-16.)
[20] There is further authority for the proposition that a decision taken by a politically elected
deliberative assembly whose individual members could not be asked to give reasons for the
manner in which they had voted, does not constitute administrative action. This is to be found in
decisions such as Steele v South Peninsula Municipal Council 2001 (3) SA 640 (C) at 644D and
Van Zyl v New National Party 2003 (10) BCLR 1167 (C) paras 48-54. Since the decisions under
consideration bear all these hallmarks, I think it can be accepted with confidence that they do not
constitute administrative action under PAJA. The further somewhat intricate question as to whether
these decisions should be categorised as the exercise of an executive function as opposed to a
legislative function, is one we do not have to decide. As long as these decisions do not qualify as
administrative action, PAJA does not apply.
[21] This conclusion does not mean, however, that these decisions are immune from judicial
review. The fundamental principle, deriving from the rule of law itself, is that the exercise of all

43 of 73
public power, be it legislative, executive or administrative is only legitimate when lawful (see eg
Fedsure para 56.). This tenet of constitutional law which admits of no exception, has become
known as the principle of legality (see eg Cora Hoexter Administrative Law in South Africa 117).
Moreover, the principle of legality not only requires that the decision must satisfy all legal
requirements, it also means that the decision should not be arbitrary or irrational (see eg
Pharmaceutical Manufacturers of South Africa: In re ex parte President of the RSA [2000] ZACC 1;
2000 (2) SA 674 (CC) at para 85; Affordable Medicines Trust v Minister of Health [2005] ZACC 3;
2006 (3) SA 247 (CC) at paras 74-75).

Steele v South Peninsula Municipal Council 2001 (3) SA 640 (C) at 643-644
Mr Binns-Ward for the respondent contended that, although the council's resolution, apart from that
portion of it which A related to the allocation of expenditure, could not properly be regarded as
legislation, it did not fit comfortably into the notion of administrative action either. I agree with this
submission. The decision by the council seems to me to have rather constituted the exercise of its
constitutional authority and 'right to govern . . . the local government affairs of its community' (s
10C(3) of the B Local Government Transition Act 209 of 1993, read with items 6 and 7 of Schedule
2A to the Act, which confers powers on the council in matters pertaining to road safety).
President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059) dealt with the meaning of the phrase
'administrative C action' in s 33 of the Constitution. At para [143] the Full Court held that:
'[143] Determining whether an action should be characterised as the implementation of
legislation or the formulation of policy may be difficult. It will . . . depend primarily upon the nature
of the power. A series of considerations may be relevant to deciding on which side of the line a
particular action falls. The source of the power, D though not necessarily decisive, is a relevant
factor. So, too, is the nature of the power, its subject-matter, whether it involves the exercise of a
public duty and how closely it is related on the one hand to policy matters, which are not
administrative, and on the other hand to the implementation of legislation, which is. While the
subject-matter of a power is not relevant to determine whether E constitutional review is
appropriate, it is relevant to determine whether the exercise of the power constitutes administrative
action for the purposes of s 33. Difficult boundaries may have to be drawn in deciding what should
and what should not be characterised as administrative action for the purposes of s 33. These will
need to be drawn carefully in the light of the provisions of the Constitution and the overall
constitutional purpose of an efficient, equitable and F ethical public administration. This can best
be done on a case by case basis.
Further guidance has been provided by the Constitutional Court in Fedsure Life Assurance Ltd and
Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374
(CC) (1998 (12) BCLR 1458). After pointing out that municipal councils have an original as
opposed to a delegated or subordinate G jurisdiction in terms of the new constitutional
dispensation, Chaskalson P et al continued:
'[41] Whilst s 24 of the interim Constitution no doubt applies to the exercise of powers delegated
by a council to its functionaries, it is difficult to see how it can have any application to by-laws made
by the council itself. The council is a deliberative legislative body H whose members are elected.

44 of 73
The legislative decisions taken by them are influenced by political considerations for which they are
politically accountable to the electorate. . . . Nor are the provisions of s 24(c) or (d) applicable to
decisions taken by a deliberative legislative assembly. The deliberation ordinarily takes place in the
assembly in public where the members articulate their own views on the subject of the proposed
resolutions. Each member is entitled to his or her own reasons for I voting for or against any
resolution and is entitled to do so on political grounds. It is for the members and not the Courts to
judge what is relevant in such circumstances. Paragraphs (c) and (d) cannot sensibly be applied to
such decisions.'
I do not consider that the resolution of the council can be categorised as administrative action. It
passed a resolution pursuant to its statutory obligation to see to traffic control and road safety
within its area of jurisdiction. It did not implement any particular A law. In this regard I draw
attention to the words of O'Regan J in Permanent Secretary, Department of Education and
Welfare, Eastern Cape, and Another v Ed-U-College (PE) (Section 21) Inc (case CCT 26/2000
decided on 29 November 2000 - unreported)* at para [18]:
'Policy may be formulated by the Executive outside of a legislative framework. For example, the
Executive may determine a policy on road and rail transportation, or on tertiary education. The
formulation of such policy involves a political decision and will generally not constitute
administrative action. However, policy may also be formulated in a narrow sense where a member
of the Executive is implementing legislation. The formulation of policy in the exercise of C such
powers may often constitute administrative action.
Implementation of a law by a functionary is one of the characteristics of administrative action.
(Pharmaceutical Manufacturers' Association of SA and Another: In re Ex parte President of the
Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241) at 706 (SA) para
[79]. The council resolution was D carried by a majority. It was not a decision taken by a
functionary who could be expected to furnish reasons. It was a decision taken by a politically
elected deliberative assembly whose individual members could not be asked to give reasons for
the manner in which they had voted.
I ought to observe that it would not have brought success for the E applicants if they had been
able to show that the Council's resolution constituted administrative action. Save for the inept
drafting of the survey questionnaire, it seems to me that the Council and its officials acted in an
exemplary manner in ascertaining the wishes of the community and in giving an opportunity to the
applicants and their opponents to present their views. Although the survey questionnaire was F
obscurely worded, it did give an opportunity for the respondents to air their views, not only on the
options presented to them, but also on other solutions which they might have cared to suggest.
The deficiencies in the questionnaire were not, to my mind, sufficiently serious to have affected the
outcome of what was a delicate issue, the chosen solution to which was bound to leave some of
those involved G dissatisfied. I am persuaded that, even if one has to do with an administrative
decision, it was not unreasonable and was taken in a procedurally fair manner.
The application is dismissed with costs.
Lekota & Another v Speaker, National Assembly & Another 2015 (4) SA 133 (WCC)

45 of 73
The first applicant was a member of the National Assembly in Parliament, and president of the
second respondent political party. The first and second respondents were the Speaker and Deputy
Speaker of the National Assembly.
The applicants sought an order that certain rulings handed down by second respondent during a
debate in the National Assembly on 12 June 2012, be declared unlawful and inconsistent with the
Constitution, and be reviewed and set aside. The said rulings were that first applicants statements
in the National Assembly on 30 May 2012, regarding certain conduct and omissions of the
President of the Republic of South Africa (the President) were out of order under the Rules of
Parliament, and that the first applicant had to leave the House, having elected not to withdraw the
statements. The applicants contended that second respondents rulings unlawfully violated first
applicants constitutional right to freedom of political speech in Parliament.
Held that the Speaker, although affiliated to a political party, is required to perform the functions of
that office fairly and impartially in the interests of the National Assembly and Parliament. When
presiding over sittings of the National Assembly, the Speaker has to maintain order and apply and
interpret its rules, conventions, practices and precedents. In so doing, the Speaker should guard
and protect the members rights of political expression entrenched in the Constitution.
In determining whether second respondent had the lawful authority to make the impugned rulings,
the starting point was the Constitution.
This was not a case where second respondent was accused of any improper behaviour or a failure
to act impartially. There was no dispute that she acted bona fide at all relevant times. The question
therefore was what criteria should the Court apply in such circumstances, when requested to
exercise its oversight responsibility in respect of the actions of an official attached to one of the
other branches of government? The second respondent was required to perform her functions in
accordance with the constitutional principle of legality which requires her to act within the powers
conferred upon her by the law and, in particular, the Constitution. The applicants were required to
prove that second respondent acted unlawfully or irrationally to the extent that her rulings should
be set aside. The ruling that the first respondents comments were out of order was based on the
provisions of a standing order. It was clear that the second respondent had applied her mind and
concluded that the remarks fell within the ambit of the standing order. It therefore could not be said
that she acted arbitrarily or capriciously in reaching her conclusion, or that she was wrong in her
view that first respondents comments fell within the ambit of the standing order.
The application was dismissed.

Malema and another v Chairman, National Council, of Provinces and Another 2015 (4) SA
145 (WCC) - Note: there is a 2016 SCA Ruling now, not referred to in this course.
The applicants (Mr Malema, together with the political party that he was the D leader of) sought the
review and setting-aside of rulings made by the respondent in her capacity as Speaker presiding
over of a joint sitting of the National Assembly and the National Council of Provinces. She ruled on

46 of 73
a point of order that certain remarks made by Malema during a debate in the joint sitting were
unparliamentary, that he withdraw it, and that he leave the house when he refused to withdraw it. E
The Speaker viewed the remarks that the ANC had massacred 34 mineworkers at Marikana for
striking, and that the ANC government massacred them because the police (who killed them) were
representing the ANC government as suggesting that the government, which is made up of
members of the house, deliberately decided to massacre the striking mineworkers. As such, she
considered, it not only imputed improper motives to certain F individual members of the house who
were also members of the executive but also accused them personally of murder. This made the
remarks unparliamentary and placed them within the ambit of a National Assembly standing order
that did not allow (inter alia) bringing 'improper conduct . . . of other members to the attention of the
house' or casting 'personal reflections on the integrity of members' without first bringing a
'substantive G motion comprising a clearly motivated and properly formulated charge'.
It was the first applicant's case that the Speaker's ruling that his statements had been
unparliamentary, was unlawful and accordingly that he was justified in refusing to withdraw them,
and further that his consequent expulsion was unlawful. This was because, apart from the
constitutional protection his statements enjoyed, he did not transgress any rules his statement
was H about the ANC as the government of the day and said nothing about any particular
individuals.
Held: The starting point in determining the lawfulness of the Speaker's ruling was the Constitution,
particularly its provisions establishing the National Assembly (s 43(a)) and affording a guarantee of
freedom of speech in I Parliament (s 58(1)(a)); and also the constitutional principle of separation of
powers. This principle enjoined a court, in a matter such as this, to not freely and lightly interfere
with the decisions of Parliament, including those of officials such as the Speaker. On the other
hand s 172(1)(a) of the Constitution imposed a fundamental duty on courts to 'declare . . . any law
or conduct . . . inconsistent with the Constitution . . . invalid to the extent of its inconsistency'. The
test to be applied in reviewing the Speaker's rulings was whether she had acted in a manner
consistent with the Constitution and the rights and values for which it provided. She must perform
her functions in accordance with the constitutional principle of legality, requiring her to act within
the powers conferred upon her by the law and, in particular, the Constitution. The question,
ultimately, was B whether the Speaker misconstrued her discretion to the extent that the court
should interfere by setting her rulings aside. (Paragraphs [44] [46] and [48] [49] at 156J 157H
and 158C F.)
The rationale behind the standing order was to ensure that the right to freedom of speech was not
unduly fettered by rulings aimed at preventing debates from descending into personal invective, by
providing for the members C intending to cast aspersions to do so only by way of a substantive
motion, clearly formulated and properly substantiated. It primarily envisaged a situation where
slights or aspersions were cast against the integrity of individual members of the house. In
determining whether the standing order was applicable to such a statement, sight must not be lost
of the rationale for the original ruling, nor of the overall constitutional background D and framework,
namely the right of every member to freedom of speech having due regard to 'representative
and participatory democracy, accountability, transparency and public involvement'. (Paragraphs
[51] [52] at 159A F.) Applying the aforementioned test, and making due allowance for the
deference which must be shown by the courts to the decisions of a Speaker in his or her area of
expertise and responsibility, it must be E concluded that, in invoking the provisions of the standing
order and in finding that first applicant's statements were unparliamentary, the Speaker materially
misconstrued the order's reach. The irrationality underlying her ruling lay principally in her holding

47 of 73
that Malema's statement imputed improper motives to those members of Parliament who were
members of cabinet or reflected on their integrity by literally accusing them personally of murder.
The Speaker's initial ruling and those that followed therefrom F were accordingly unlawful.
(Paragraphs [55] [60] at 160A 161G.)

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) [See
also the reference to the De Lange v Smuts case [128-132]
Summary Above.
De Lnage v Smuts [128-132]:
The second case was De Lange v Smuts NO and Others.11 In that case, this Court was concerned
with a challenge to section 66(3) of the Insolvency Act12 which empowered an officer presiding at
a meeting of creditors to issue a warrant to commit to prison a person who refuses to be sworn or
to answer a question. The question that arose for decision was whether the power to issue a
warrant of committal was a power that could only be exercised by a judicial officer in the court
structure established by the 1996 Constitution and in which s 165(1) has vested the judicial
authority of the Republic.13 A majority of this Court held that a power of committal could only be
exercised by a judicial officer on the ground that the power to imprison a person could only be
exercised by a court of law. This Court concluded that:
[I]t suffices to say that, whatever the outer boundaries of separation of powers are eventually
determined to be, the power in question here ie the power to commit an unco-operative witness
to prison is within the very heartland of the judicial power and therefore cannot be exercised by
non-judicial officers.14
The corollary of this conclusion by the majority of this Court was that the power to commit a person
to prison for failing to co-operate was clearly judicial and nothing else.15 I should add for
completeness that section 66(5) of the Insolvency Act provides that a person committed to prison
under section 66(3) may apply to a court for discharge from custody on the basis that he or she
was wrongfully committed to prison.
Both cases concern the power to commit a recalcitrant witness to prison. Both powers were held
not to involve administrative action but were held to be judicial in character. What is clear from
the judgment of Ackermann J in De Lange v Smuts NO, in particular, is that when defining the
power to commit a person to prison as an exercise of judicial power, the Court was not only
speaking of the function but also of the functionary, that is the judiciary as constitutionally
established. The reasoning recognises that there are certain powers in our constitutional order
(and in both cases this was the power to commit a person to prison) that may only be exercised by
judicial officers and not by members of the executive because of our constitutional doctrine of
separation of powers. The powers then were held to be judicial not only because they involved
adjudication, but because they were powers which, under our constitutional order, are to be
exercised only by the judiciary.

48 of 73
The dictum from President of the Republic of South Africa and Others v South African Rugby
Football Union and Others16 (SARFU) upon which Ngcobo J relies,17 that [w]hat matters is not
so much the functionary as the function,18 has thus not been employed by this Court in relation to
the distinction to be drawn between judicial tasks and administrative action. That dictum was used
in SARFU to assist in drawing the line between executive acts and administrative acts. This
Court reasoned:
In section 33, the adjective administrative not executive is used to qualify action. This suggests
that the test for determining whether conduct constitutes administrative action is not the question
whether the action concerned is performed by a member of the executive arm of government.
What matters is not so much the functionary as the function. The question is whether the task itself
is administrative or not.19
This Court continued as follows:
It may well be, as contemplated in Fedsure, that some acts of a legislature may constitute
administrative action. Similarly, judicial officers may, from time to time, carry out administrative
tasks. The focus of the enquiry as to whether conduct is administrative action is not on the arm of
government to which the relevant actor belongs, but on the nature of the power he or she is
exercising.20 (Footnotes omitted.)
All that this paragraph makes plain is that at times arms of government other than the executive
may perform administrative action. Again it does not assist us in answering the question whether
the performance of adjudicative tasks by the CCMA is to be classified as administrative action or
not. In my view, that question needs to be answered by understanding the proper constitutional
purpose of section 33 and then considering that purpose against the context of the adjudicative
functions of the CCMA.

Wessels v Minister of Justice and Constitutional Development 2010 (1) SA 128 (GNP)
- Done

Sokhela v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) 2010 (5) SA 574
(KZP)
A query analogous to disciplinary action in an employment context was considered in Sokhela and
Others v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) and Others 2010 (5) SA
574 (KZP), which dealt with the suspension of members of a statutory board. The court noted that
the classification of such an action as administrative action depends largely, as in the employment
context, on whether the relevant decision can be said to be of an administrative nature, as required
by the definition of administrative action in the PAJA. In one of the most comprehensive analyses
of this element of the definition, Wallis J held (para [61]) that a court- ... is required to make a
positive decision in each case, whether a particular exercise of public power or performance of a
public function is of an administrative character. Thus the determination of what constitutes

49 of 73
administrative action does not occur by default, on the basis that, if it does not fit some other
juristic pigeonhole, it is administrative action. There needs to be a positive finding that particular
conduct is administrative action, in order for the power of judicial review under [the] PAJA to be
engaged.' The court held that this element of the definition serves two purposes. In the first
instance, it focuses the attention on the need to determine positively whether action amounts to
administrative action as set out in the extract quoted above. Secondly, it confirms that not all public
actions that are not excluded by one of the express exclusions in the definition amount to
administrative action. Put differently, exercises of public power may not be administrative action
even though they are not excluded under one of the listed exclusions. Again, the court emphasized
the need to establish the 'true character' of the action as administrative before it can be subjected
to the PAJA (para [61]). To ask in this enquiry whether the action is in the implementation of
legislation was too wide a test, as 'the implementation of legislation may take different forms, only
some of which will constitute administrative action and be subject to judicial review under [the]
PAJA' (para [74]). Applied to the present matter, the court noted that the establishment of a
statutory body, and in particular the appointment of 'appropriate persons to undertake the various
functions required by legislation', would, generally, not be administrative in nature. Ostensibly the
significant policy dimension of such action would take it out of the realm of administrative law.
However, regarding the suspension of such persons, the position may be quite different where the
relevant empowering provision provides for suspension in clearly circumscribed circumstances,
and, in particular, where such power of suspension is aimed at the continued proper functioning of
the body concerned as in the present matter. In such a case, suspension will be administrative in
nature and subject to the PAJA (para [80]). Finally, the court made the noteworthy remark that
action that was subject to administrative-law scrutiny at common law 'will ordinarily be regarded as
constituting administrative action under the present constitutional dispensation' and that courts 'will
be slow to construe that conduct as falling outside the ambit of administrative action under the
Constitution and [the] PAJA' (para [82]). This remark is in stark contrast to that of Murphy J in
Diggers Development (supra para [32]): '[W]hile courts and many administrative lawyers have
expressed legitimate reservations about the usefulness of classifying functions in administrative
law, it would seem to me that the express provisions of [the] PAJA render categorization
inescapable. The intention of the legislature was to narrow down the common law notion of
administrative action and the courts are not at liberty to ignore that intention.' The approach to
identifying administrative action taken in Wessels v Minister for Justice and Constitutional
Development (supra) can also be contrasted to that in Sokhela (supra). In Wessels, the court held
that the appointment of a magistrate (a regional court president, to be precise) by the Minister of
Justice amounted to administrative action. In arguing that it did not, the respondents submitted that
such action was executive in nature and thus not administrative. The court rejected this view. It
relied primarily on the list of exclusions in the definition for its finding. It noted that appointment
decisions of the President in terms of section 84(2)(e) of the Constitution were clearly deliberately
not included in the list of exclusions, as decisions in the appointment of magistrates were not
included in para (gg) of the definition of 'administrative actions', which excludes only decisions to
appoint judges (at 138H). From these exclusions in the list of exclusions, the court inferred that
decisions to appoint magistrates were indeed included in the definition (at 138A-B and 139C-D).
Thus, contrary to the view expressed by Wallis J in Sokhela, the court in Wessels decided on the
executive versus administrative nature of the decision solely with reference to the list of exclusions.
In Wessels, the court also expressly endorsed the determination theory in relation to the
requirement in the definition that administrative action adversely affects rights. With reference to
the interpretation of this part of the definition in Grey's Marine Hout Bay (Pty) Ltd and Others v

50 of 73
Minister of Public Works and Others 2005 (6) SA 313 (SCA), the court held that '"the capacity to
affect legal rights" is a synonym for "determines rights"' (at 137A). Accordingly, the court held that
since the applicant's rights were determined when another candidate was appointed to the position
for which she also applied, her rights were adversely affected, and such conduct would constitute
administrative action under the PAJA (at 137D). Returning to the contrasting views expressed in
Sokhela and Diggers Development on the influence of the definition of administrative action in the
PAJA on the common-law conception of administrative action, one particular area in which there
has been ADMINISTRATIVE LAW 015 significant uncertainty about the applicability of the PAJA to
action that was subject to administrative-law scrutiny at common law is with regard to legislative
administrative action - the making of regulations. This uncertainty has now seemingly been settled
by the Supreme Court of Appeal in City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
2010 (3) SA 589 (SCA), where the court held unanimously 'that the making of regulations by a
Minister constitutes administrative action within the meaning of the Promotion of Administrative
Justice Act 3 of 2000' and consequently that such action can be reviewed in terms of the PAJA
(para [10]). This is now the highest authority on point

Young Ming Shan CC v Chagan NO & Others 2015 (3) SA 227 (GJ)
A ruling was made by the Gauteng Rental Housing Tribunal to declare the practice by a building
corporation to levy an electricity service charge unfair. The building corporation approached the
court for a review of the ruling by the Tribunal in terms of section 6 of the PAJA. The main issue
was whether the ruling by the Housing Tribunal constituted administrative action for purpose of the
PAJA or whether it was judicial and therefore excluded from PAJA. The main enquiry before
Coppin J was therefore the nature of the tribunals function. Coppin J was of the view that the
functions of the tribunal that are in issue in this case and which are essentially sourced from
section 13 of the Act, though prima facie of a judicial nature, are actually administrative (para [37]).
Coppin J acknowledged that the adjudicative functions of the tribunal had some similarities to
judicial functions, but proceeded to highlight the differences between the two in order to
substantiate his view that the rental tribunal is not a court of law (para [44]).
Although the functions of the Tribunal resemble those of courts of law in some respects, it is not a
court of law. The mere fact that its ruling is deemed to be an order of the magistrates court in
terms of the Magistrates Courts Act and is enforced in terms of that Act (s 13(13)), does not make
the Tribunal a court of law and does not make its adjudicative actions judicial acts. There are
similar provisions in the LRA with regard to arbitration awards of CCMA commissioners or
arbitrators , but that has not affected the administrative nature of those acts . The Tribunal is,
nevertheless, a state organ exercising public power. Its functions are essentially administrative in
nature and its proceedings are expressly made reviewable and its rulings are not appealable. It is
appropriate that the Rental Tribunal be held to the standards espoused by the Constitution in
section 33, namely, lawfulness, reasonableness and procedural fairness.
Public Power
Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA)

51 of 73
Facts - above
[34] meaning of AA? - above
Control exercised by the state over the affairs of Transnet;
Performing its functions in the public interest
Organ of state?
All powers & functions of former services transferred to Transnet;
Therefore Transnet performs public service & public functions;
Transnet exercise all powers of a government department;
The state is the only member of Transnet and controls it;
Transnet provides a service in the public interest. (par [36], [37])
[36] I can now proceed to consider whether Transnets decision to
request tenders, the consideration thereof and the decision to award the tender amounted to
administrative action for the purpose of sections 33 (1) and (2) of the Constitution. I do so on the
basis that, irrespective of whether Transnet is an organ of state or a juristic person other than an
organ of state, the threshold requirement is that it exercised a public power or performed a public
function.
[37] From the history of the creation of Transnet, as it appears from the provisions of the
Succession Act, one can only deduce that all the powers and functions of the former S A Transport
Services were transferred to Transnet, who is now obliged to exercise the said powers and perform
the said functions. In doing so, Transnet merely stepped into the shoes of the SA Transport
Services. Like the latter, it is performing a public service and function and exercising all the powers
of a government department. Furthermore, the State is the only member and shareholder of
Transnet

Baloro v University of Bophuthatswana:

D Having regard to the preamble of the Constitution of the Republic of South Africa Act 200 of
1993, s 7, s 8, s 33(4), s 35, s 74(1), s 232(4), the 'National Unity and Reconciliation' provisions at
the end of the Constitution, and the 'Constitutional Principles' contained in Schedule 4 to the
Constitution, and South African and comparable foreign authorities, the fundamental rights
contained in chap 3 of the Constitution are within certain limits to be applied horizontally as well as
vertically. (At 234I.) In applying the fundamental rights in chap 3 of the Constitution E horizontally,
the Court must strike a balance between 'assertiveness' and 'over-use'. There must be a balance
between the tensions of 'under-' and 'over-use'. A polarisation between these tensions must not
occur. A golden mean between these tensions is called for in order to achieve a harmonious

52 of 73
application in accordance with the spirit of the Constitution. Therefore a qualification is needed in
regard to the horizontal dimension. (At 238E-G.) The fundamental rights in chap 3 will apply
horizontally to the following: F (i) Corporations, multinational and local companies engaged in
trade, commerce, business, that deal with the public, have employees and engage in numerous
undertakings. The institutions in this category are subject to the fundamental rights in all their
manifold operations because they deal with the public and are generally no different in power,
wealth or influence from the State, or parastatal companies or statutory bodies. G (ii) Commercial
and professional firms which rely on the public for their custom or support, and who by the nature
of their activities engage with the public. (iii) Hotels, restaurants, places of public entertainment, all
of which rely on public patronage. Persons cannot be refused admission to them on the grounds of
race, colour, creed or gender, etc. This would constitute discrimination in terms of s 8 of the
Constitution. (iv) Private hospitals, rehabilitation centres, clinics engaging H with the public as
patients, etc (public hospitals funded by the State or the provinces are clearly 'organs of State'). (v)
Private universities, schools and institutions of learning funded by individuals and corporations and
which operate in the public domain. (vi) Sports grounds and clubs which are open to the public.
(vii) Public transport. This list is not exhaustive. What does appear, however, is a general I principle
that any activity, operation, undertaking or enterprise operating in the community, and open to the
public, is subject to the horizontal dimension of the fundamental rights contained in chap 3, read
with ss 33(4) and 35, of the Constitution. In order to circumscribe the horizontal dimension, the
concept of the 'State action' doctrine in United States law may be usefully followed, with
modifications. Before determining whether the horizontal dimension applies to 'non-State' activities
in its extended range, three questions need to be put: (a) Whether the activity is a 'public function',
ie operating in the J public domain. 1995 (4) SA p200 A (b) Whether the activity is so linked or
'intertwined' with public action that the private actor becomes equated with the public domain. (c)
Whether the conduct of the private actor (person) complained of has been approved, authorised or
encouraged by the State or public institutions in an adequate manner so as to be responsible for it.
If any of these three questions are answered in the affirmative, the horizontal dimension is
applicable. (At 238I-239G.) B In applying the aforegoing tests, regard must be had to the principles
of free trade and association. Given the yeast-like property of the horizontal dimension to expand,
an over-proliferation of this dimension must be guarded against. The horizontal dimension needs to
be applied with caution in the various categories of its operation. Difficulties arise in applying it to
personal and private law and it should not be so applied. There has to be an acceptance and
respect for the principles of C privacy and freedom of choice. An individual has the right to choose
his/her own associates, and to construct, mould and fashion his/her private life as a matter of free
choice. (At 239H/I-240B.) The Courts in South Africa are now confronted by a rapid oscillation from
the positivist jurisprudence founded on the sovereignty of Parliament to a jurisprudence based on
the sovereignty of the law contained in a Constitution with a justiciable bill of rights. The Courts are

53 of 73
also directed, if regard is had to the provisions of s 35 of the Constitution, D to a different form of
interpretation, one founded on value judgments. Certain of the principles of the 'Legal Realism'
school of thought, founded in the United States, are apposite in this regard; a school of thought
which rejected the traditional approach of Anglo-American jurisprudence. The motto of Legal
Realism was thus formulated by Oliver Wendell Holmes: 'The prophecies of what the courts will do
in fact, and E nothing more portentous, are what I mean by the law.' (At 243E-G/H.) The substantial
impact of this school of thought was that it drew attention to 'the human, social and economic
aspect of the administration of law which cannot be expressed by the description of abstract norms
and rules'. However, it would be as wrong to dwell on these aspects exclusively as it would be to
ignore them. In dealing with a legal system, due cognisance must also be taken of the underlying
ideals, principles and concepts. These factors implicitly influence those who operate within the
system. F In terms of s 35 of the Constitution the Courts, specifically the Judges, are cast in the
additional role of social engineers, social and legal philosophers in order to 'promote the values
which underlie an open and democratic society based on freedom and equality'. Judges are
reluctant to assume this role. (At 243I-244B.) However, s 35 properly construed, read with the other
provisions of the Constitution referred to above, enjoins the Court to be an important authority in
the quest to change South African society in accordance with the aims and spirit of the
Constitution. Clearly the Constitution does not operate mechanically. It G has to be administered
and applied. Therefore the Courts and Judges are instruments that must put the law into effect.
The activity of Judges will not only be confined to the interpretation of existing laws, but they will be
obliged to engage in the more creative activity of generating new laws in terms of s 35, which gives
to the Courts in South Africa a greater and more extensive power than the Courts in the United
States. This aspect becomes important if the Courts are of the view that the existing H law is felt to
be 'unjust, ambiguous, inefficient, or simply obsolete due to changing circumstances'. Section 35
gives Judges an almost plenipotentiary judicial authority to decide according to a sense of natural
justice; 'equity', 'jus naturale', 'aequitas' all being enshrined in the Constitution. Section 35 provides
that the Court, in interpreting the Constitution, 'may have regard to comparable foreign case law'.
Judges in the United States have delivered important judgments on the bill of rights in the
Constitution of the United States, and it is necessary I and indeed enlightening to refer to certain of
their approaches in interpreting the bill of rights, bearing in mind that the burden of responsibility of
interpretation is passed on to the Courts, which 'shall promote . . .', which means, inter alia,
'advance', 'develop', 'further', 'propagate', 'expedite' and 'facilitate' the objectives contained in s 35
and chap 3. (At 244C/D-H.) To apply s 35 of the Constitution in order to promote the matters
contained therein, a Court is entitled to have regard to, inter alia, (i) a dispassionate consideration
of the circumstances and events which led up J to, and accompanied, the framing and 1995 (4) SA
p201 A adoption of the Constitution; (ii) giving effect to the intent of the framers of the Constitution
and of the people who adopted it; (iii) the objectives of its framing and adoption; (iv) the human,

54 of 73
social and economic aspects relevant to the Court's decision; and (v) the promotion of values
designed to give effect to the purpose of the Constitution, and the standards and principles
contained in s 35. (At 245DF/G.) B It is essential that the words 'organs of State' in s 7(1) of the
Constitution be given an extended meaning. The words must include (i) statutory bodies; (ii)
parastatal bodies; (iii) bodies or institutions established by statute but managed and maintained
privately, such as universities, law societies, the South African Medical and Dental Council, etc; (iv)
all bodies supported by the State and operating in close co-operation with structures of State
authority; and (v) certain private bodies or institutions fulfilling certain key functions under
supervision of organs of the State. (At 235J-236B/C.) C Having regard to the provisions of the
University of Bophuthatswana Act 10 of 1978 (B), s 1 (definition of 'statutes'), s 16 and s 29 of the
University of Bophuthatswana Consolidation Act 33 of 1988 (B) and the extended meaning of
'organs of State' in s 7(1) of the Constitution, the University of Bophuthatswana (the first
respondent in the present proceedings), being subject to the ultimate exercise of control by the
Minister of Education and the Executive Council (see s 29(2)(a) of Act 33 of 1988 (B)), is clearly an
organ of State. The vertical dimension of the fundamental rights contained in the Constitution of the
Republic of South D Africa Act 200 of 1993 therefore applies to the University. (At 246F.) Even if
the University is a private institution, or should it become a private institution with no State control
or influence over it, the horizontal dimension of the fundamental rights would be applicable to it
because of the nature of its activities and its operation in the public domain as an important
institution of learning. (At 246G.) E The decision of the Interim Council of the University of
Bophuthatswana placing a moratorium on promotions of non-national (ie non-South African)
academic staff with valid contracts of employment, while promoting members of staff with South
African citizenship, is a gross violation of s 8(2) of the Constitution for the following reasons: (i)
there is no valid reason for their applications for promotion to be subject to a moratorium while
other members of staff receive promotion based, inter alia, on the fact that they are South African
citizens. F (ii) The words '(n)o person' in s 8(2) of the Constitution also apply to aliens. 'Person'
does not mean only a citizen of South Africa. (iii) The international standard relating to the
treatment of aliens postulates that, if a State admits an alien into its territory, it must conform in its
treatment of him to the internationally determined standard. This means that the State should
accord treatment to the alien which measures up to the ordinary standards of civilisation. The
international standard of G treatment of aliens applies in respect of fundamental human rights,
such as the right to life and integrity of persons, but not to political rights. (iv) Having regard to s
8(2) of the Constitution, public international law and foreign comparable case law, which the Court
is, in terms of s 35(1) of the Constitution, entitled to take into account, an overwhelming case had
on the facts been made out that non-national (ie expatriate) academic staff (the H applicants) had
been discriminated against because they were not South African nationals. (v) The onus in s 8(4)
was applicable and, on the facts, the responses given by the University and the other respondents

55 of 73
were devoid of substance: the qualification for appointment to the staff of a university was, and
should be, merit and suitability for the position, and not ethnic or national origin. (At 246H-247A,
247E-F/G and 247G/H-J.)

JHB Stock Exchange v Witwatersrand Nigel LTD (public interest)

Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132 (A) decides that the
power vested by statute in the President of the Johannesburg Stock Exchange temporarily to
suspend a listing of securities was given for the purpose of protecting the public interest (at 152F-I,
154B). Since the decision in this case to suspend the listing of Wit Nigel's shares was taken for the
different, and unauthorized, purpose of disciplining the company for disobeying what was
(incorrectly) believed to be a valid instruction, it was set aside. The effect is to confirm the judicial
tendency to perceive the management of the stock exchange as public functionaries (see, for
example, Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange 1983 (3) SA 344 (W)
at 364-5).
It is scarcely surprising that a mere eleven days after the delivery of the present judgment the
same court (albeit through a panel composed very differently) endorsed (obiter) the notion of
review for taking account of an irrelevant consideration (Johannesburg Stock Exchange v
Witwatersrand Nigel Ltd 1988 (3) SA 132 (A) at 153-4). Significantly, the statute before the court on
that occasion did not expressly make the consideration irrelevant; nor was the irrelevance of the
consideration inferred from the wording of the statute.
Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange 1983 (3) SA 344 (W) was an
application for review for non-compliance with the listing requirements of the stock exchange.
Since the applicant was merely a shareholder in a company listed on the exchange, and could
therefore not show any contractual connection with it, the application could succeed only if the
court accepted that the listing requirements had statutory force. In effect, Goldstone J did that (see
especially 365F). Since the applicant in Johannesburg Stock Exchange v Witwatersrand Nigel Ltd
1988 (3) SA 132 (A) was a listed company, however, it was possible for the parties to agree that
the listing requirements were binding in contract (at 147D-E), and the issue in Dawnlaan did not
arise. The Witwatersrand Nigel case nevertheless represents an interesting example of contractual
ultra vires (see at 146D, 147E-I, 1501-J). See also the aspect of the judgment mentioned under
'Ulterior Purpose' above.

Herbert Porter & Co Ltd v Johannesburg Stock & Exchange

[failure to approve a circular not a public power]
The legal status of the Johannesburg Stock Exchange (JSE) was briefly discussed by Coetzee J in
Herbert Porter & Co Ltd v Johannesburg Stock Exchange 1974 (4) SA 781 (W). Stock exchanges,
said the learned judge, not only exist in modern developed capitalistic societies but are also

56 of 73
'indispensable'. 'It is equally true that public interest demands that they should be orderly and fairly
conducted, which is ensured by a measure of statutory control. To refer, however, to the Stock
Exchanges Control Act, 7 of 1947, as its "empowering Act" . . . is inaccurate. Mr Maisels, for the
respondent . . . indeed went so far as to call the JSE a statutory body. Neither directly, nor
indirectly, does the Stock Exchanges Control Act create statutory stock exchanges. This Act falls
nicely in the general pattern of South African legislation enacted to control a large variety of
financial institutions such as banks, building societies, pension funds, benefit funds, insurance
companies, etc. It is fundamentally licensing legislation. Any stock exchange which functions as
such requires to be licensed under the Act. Its rules must conform with certain standards laid down
in the Act, and must be approved by the Registrar of Financial Institutions. A board of appeal is
established by s 11 of the Act, to which appeals may be made under s 10, but this does not affect
the purely contractual nature of the relationship between a licensed exchange and its listed
companies. ... The JSE is no more a creature of statute than any bank or building society.. .' (at
791B-F). The case was concerned with an application made by Vrede Securities Ltd, the second
applicant, to have certain shares, created and issued by it by virtue of resolutions passed at an
extraordinary general meeting, listed in the secondary section of the JSE. In applying for this
listing, the applicants had agreed in writing to comply with the JSE's requirements as set out in its
booklet entitled 'General Information and Requirements for Listed Companies'. It was required of a
company applying for a listing of shares that a circular containing full details of the proposed
transaction be sent to all shareholders before the general meeting required to consider this
transaction was held. On 2 October 1973 a draft circular 308 ANNUAL SURVEY OF SA LAW
detailing the proposed acquisitions and increase in capital was sent to the JSE. Certain
amendments were requested by the JSE regarding clarification of the wording of the circular; by 2
November 1973 a new circular, containing all the amendments, was submitted to, and accepted by,
the JSE. On the recommendation of the listings committee, the general committee of the JSE
refused to approve the circular containing the application, on the ground that it constituted a 'back
door' listing operation. Despite the JSE's refusal to approve the circular, it was sent to
shareholders, who approved its contents at an extraordinary general meeting. The applicants
thereafter applied for an order directing the respondent to approve the circular. One of the
problems facing the court was the nature of the function of the JSE and its general committee
when approving the circular setting out the details of the application for the listing. To resolve the
problem, CoetzeeJ referred to rule 2 of s I of the 'General Information' booklet, which provides as
follows: 'Twelve copies of all ... circulars or notices relating to matters dealt with, or referred to, in
this booklet.., should be submitted for the committee's prior approval at least 21 days before the
date of issue to shareholders.' Once the circular is approved by both the general committee of the
JSE and the shareholders of the applicant company in an extraordinary general meeting, the rules
in s IVA of the booklet apply. These rules provide that a company must apply for the listing

57 of 73
immediately after the approval of the circular. The application has to be in writing, and must contain
information set out at pp 41-4 of the booklet. It was only at the stage set out in s IVA, said the
learned judge, that the JSE could consider the merits of the application, and decide whether or not
these additional shares ought to be listed. In so doing, the JSE would function as an adjudicating
body. This function was, however, a far cry from the function exercised by the general committee in
terms of rule 2 of s I of the booklet. 'Properly construed, the clause means no more than that the
committee cannot withhold approval if there is substantial compliance with the disclosure
requirements in the rules . . .' (at 795B). The only function of the committee at this stage was to
ensure that the required standards of disclosure to shareholders had been adhered to by the
company. One could not speak of adjudication in the juristic sense at all. Accordingly, the court
found that the JSE's failure or refusal to approve the circular was a simple breach of contract, and
that the remedies available to Vrede Securities Ltd were those which an injured party normally had
ex contractu.

R. v Panel on Take-Overs and Mergers, ex parte Datafin PLC (nature of the power, rather
than the source)
Facts
The Panel on Take-overs and Mergers is the City of London's self-regulating mechanism for
dealing with mergers and acquisitions. The applicant complained about the conduct of their
competitors in a takeover bid and were unhappy with the Panel's decision. When it was refused
leave to seek judicial review by the High Court, it appealed to the Court of Appeal.
The main issue facing the Court was whether to review the decision of a Panel set up under private
law using the standards usually applied in administrative law.
Judgment
The Court of Appeal held that the powers exercised by the Panel (regulating take-overs and
enforcing a code of conduct on them) were essentially in the domain of public law and formed part
of the Government's scheme to regulate the City. Those affected had no choice but to submit to the
Panel's jurisdiction. As a result, the Panel had the duty to act judicially and its decisions could be
checked by means of judicial review. On the merits however, the Court found no ground to quash
the disputed decision.
Sir John Donaldson, the Master of the Rolls, gave the leading judgment.
Significance
This decision is important in the light of an increasing "privatisation" of public powers. In recent
years, the Government has delegated many of its powers to formally private bodies, which

58 of 73
nevertheless can make decisions affecting individual citizens and the society at large. Following
the Datafin case, such decisions are now amenable to judicial review by courts.

Wittman v Deutscher Schulverein, Pretoria

Plaintiff, the custodian parent of a minor child who had been admitted as a pupil in the German
school at Pretoria, instituted an action against Defendants in which she sought an order declaring
to be unconstitutional, unlawful and invalid the actions of First, Second and Third Defendants in
compelling the minor child to attend the religious instruction classes and the school
assembly/prayers, an order declaring the termination of Plaintiff's membership of First Defendant to
be unconstitutional, and an order [*3] declaring that Plaintiff had the right to have the minor child
excused from attendance at the religious instruction classes and the school assembly and prayers.
First Defendant was a voluntary association which had been formed to run the school. Second
Defendant was the chairman of First Defendant. Third Defendant was the principal of the school.
Fourth and Fifth Defendants, who did not oppose the action, were the national and provincial
ministers of education respectively. The relevance of the relief relating to Plaintiff's membership of
First Defendant was that membership of First Defendant was a prerequisite for the continued
admission of a member's child as a pupil at the school. It emerged that a large portion of the
budget of the school was provided by the Government of the Federal Republic of Germany which
also seconded teachers and paid their salaries. Prior to the stage when the school became largely
dependent upon the German government, its religious instruction had been presented
confessionally by a pastor of the Lutheran Church. Children of other denominations could apply for
exemption from this subject. In 1980 the association adopted a new constitution which laid [*4]
down that religious instruction should thenceforth be supra-denominational. The reasoning
underlying this was that the affiliations of pupils to denominations other than the Lutheran
denomination would be taken into account as well as those of pupils who did not belong to any
church or religious group. What would be conveyed to pupils would be general knowledge with
regard to religion and the history of religion. After the implementation of the new religious
instruction regime, it became the policy of the school that a personal view regarding religion or
church or non-affiliation to a denomination would not be a valid reason for exemption of children
from attendance at the religious instruction classes. When the minor child had been enrolled in the
school in 1988 both parents had signed a form indicating that they accepted the provisions of the
constitution and the school rules. At a later stage Plaintiff informed the school that she desired "to
keep her daughter from morning prayer" and that she be exempted from attending the religious
instruction classes. The school was not prepared to accommodate Plaintiff in this regard. It adopted
the attitude that there was no valid justification [*5] for such an attitude. Morning prayers were a
part of the school routine and religious instruction was an educational subject taught in such a

59 of 73
manner as to leave pupils free to make up their own minds on religious questions. Plaintiff
remained obdurate on the issue. Certain steps taken by Plaintiff were regarded by the school
council as "seriously damaging the image/esteem and interests of the school association". Plaintiff
was advised that the school council intended to deliberate about her possible expulsion from First
Defendant. A hearing was held which was attended by Plaintiff. She was thereafter informed that it
had been resolved to terminate her membership unless she confirmed in writing before a certain
time that she would abide by the constitution of the association and certain other decisions made in
an annual general meeting. Plaintiff gave a written undertaking that she would do so. She did not,
however, desist in maintaining her objections to her daughter's attendance at religious instruction
classes. When approached by members of the press, she granted them an interview which
resulted in the publication of articles that were generally condemnatory of the school. The school
[*6] board thereupon resolved to expel Plaintiff from First Defendant and informed her that her
membership was terminated forthwith by reason of her having "made comments in various media
from which it follows that you do not feel bound any more to the agreement with (First Defendant)".
She was also informed that her daughter would no longer be able to attend the school. Plaintiff
then launched the instant action. As to the termination of her membership of First Defendant the
Court found that there was adequate reason to terminate her membership. She had voluntarily
contracted with the school and subscribed to the constitution and rules which required attendance
at religious instruction. Knowing this, she had nevertheless embarked on her course of action
which had caused considerable embarrassment to First Defendant. However, the decision to expel
Plaintiff was vitiated by the failure to afford her a hearing. The constitution of First Defendant gave
her a right to a hearing. It had been contended on behalf of First Defendant that the omission to
afford her a hearing was immaterial as she would in any event not have had an answer to the
charge and therefore had suffered no prejudice. [*7] The Court pointed out that the onus would be
on Defendants to establish that Plaintiff had suffered no prejudice by way of the failure to afford her
a hearing. Clearly the board was convinced that Plaintiff was waging a media campaign against the
school and that this was a continuation of her previous efforts to whip up the feelings of the
government and the German authorities. Nevertheless, is was not possible to say that had Plaintiff
been given an opportunity to put her view across to the board, the board would still have resolved
to terminate her membership. It had not been established that there was no prejudice. Because the
hearing had not been held, the decision of the board had to be set aside. The Court then turned to
the constitutional question of whether the school was acting in conflict with the constitution in
enforcing attendance at its religious instruction classes. The relief sought in the form of a declarator
that compelling the minor child to attend the religious instruction classes was unconstitutional fell to
be determined under the interim Constitution because it had been in force at the relevant dates.
The question of whether Plaintiff had the right to have [*8] the child excused from attendance at
religious classes related to a future situation and fell to be determined under the final Constitution.

60 of 73
The Court considered the terms of and the construction to be placed on section 14 of the interim
Constitution and section 15 of the final Constitution both of which guaranteed the right to freedom
of religion, belief and opinion. The Court surveyed the comparative law emanating from other
jurisdictions but found such to be unhelpful. The religious freedom guarantees found in other
constitutions differed materially from those of the RSA Constitutions. Reference to the case law of
those jurisdictions, however, served to illustrate the difficulties which the framers of the RSA
Constitutions sought to avoid. Free societies were not all cast in one mould. Different institutions
evolved from different historic circumstances. The word "religion" in those provisions was not
neutral but denoted a particular system of faith and worship. "Religious observance" was an act of
a religious character, a rite. "Religious education" did not constitute "religious observance". Even if
religious instruction did amount to religious observance, the interim Constitution [*9] conferred on
State and State-aided educational institutions the right to conduct religious observances, provided
that attendance at such was voluntary. It was necessary to have regard to section 32 of the interim
Constitution which conferred the right (a) to basic education and equal access to educational
institutions, (b) to instruction in the language of choice where reasonably practical, and (c) to
establish, where practicable, educational institutions based on a common culture, language or
religion, provided that there could be no race discrimination. Whereas both the interim Constitution
and the final Constitution were specific about religious observances in State and State-aided
school, they were silent about religious instruction. By implication, however, the right to freedom of
thought, belief and opinion entailed that attendance could not be made compulsory. In the case of
religious observance, the Constitutions expressly provided that attendance must be voluntary. This
appeared from subsection (2) of both section 14 of the interim Constitution and section 15 of the
final Constitution. The Constitutions accordingly granted the right expressly to those who found it
appropriate [*10] to conduct religious observances at State and State-aided schools. That right
could not be nullified by the sensitivities of those who had the right to abstain but chose not to do
so. The Constitution could not protect a child against peer pressure when others joined in and he
or she did not. The Constitution protected his or her right to be a dissenter, but did not confer the
right to be protected from the embarrassment that necessarily attended non-conformity in any
respect. The fact that the Constitutions made specific provision for State and State-aided schools
to hold religious observances provided attendance was voluntary did not mean that a private
parochial school which received no State assistance might not hold such religious observances
and make attendance thereat compulsory. The freedom of association guarantee contained in
section 17 of the interim Constitution and section 18 of the final Constitution entitled it to do so.
Freedom of association included the right jointly with others to exclude those who were not
prepared to conform to the group's requirements. It included the right to require those who joined
an association to conform to its principles and rules. While [*11] the right of non-attendance was an
ancillary right of the right to freedom of religion, the right of non-attendance could validly be waived

61 of 73
where, for example, one agreed in advance to subject oneself to the constitution of a school and its
regulations. The question was not whether there could be a waiver of a fundamental right (in casu,
the freedom of conscience, religion, thought, belief and opinion) but whether one could waive the
right of abstention from attendance when others exercised their right in this regard. Such a waiver
amounted to no more than saying, "I have a right to walk out but in deference to you I will not".
There was no reason why effect should not be given to such a waiver. It followed that Plaintiff had
waived her right of non-attendance by subjecting herself to First Defendant's constitution and the
school's regulations. She had accordingly waived the right to rely on section 14(2) of the interim
Constitution. Apart from the relief sought in regard to the termination of Plaintiff's membership of
First Defendant, the application for the remainder of the relief fell to be dismissed.

Klein v Dainfern College 2006 (3) SA 73 (T)

The circumstances were very different in Klein v Dainfern College & another 2006 (3) SA 73 (T)
(discussed further in the section below). A teacher employed by a private school brought an
application to review a decision taken during a disciplinary hearing to impose the sanction of a
warning on her. Itwas argued on behalf of the first respondent that the PAJA's 'extension' ofjudicial
review to private bodies exercising public power (in the Act's definition of administrative action)
meant that the judicial review of private power through the medium of contract had been excluded.
Not surprisingly, ClaassenJ rejected this argument, reaffirming the long line of cases that have
applied administrative law-type controls to the coercive powers of voluntary associations. He
concluded: 'No rational reason exists to exclude individuals from the protection of judicial review in
the case of coercive actions by private tribunals not exercising any public power. To my mind the
Constitution makes no pronouncements in respect of this branch of private administrative law.
Thus, continuing to apply the principles of naturaljustice to the coercive actions of private tribunals
exercising no public powers will in no way be abhorrent to the spirit and purport of the Constitution.'
(para 24) Although it is not mentioned in the judgment, a glaring flaw in the argument was the
mistaken belief that the Constitution and then the PAJA extended administrative-law principles
beyond organs of state to private bodies that exercise public power. In fact this was the position at
common law long before 1994. One need look no further than Dawnlaan Beleggings (Edms) Bpk v
Johannesburg Stock Exchange 1983 (3) SA 344 (W).
Klein v Dainfern College & another 2006 (3) SA 73 (T) (discussed further below) illustrates a
situation in which the rules of administrative law apply, not through the PAJA, as one might expect,
but through the common law. This is where voluntary associations exercise coercive powers over
their members and administrative-law principles are imported into the relationship via implied
contrac- ADMINISTRATIVE LAW 113 tual terms. The PAJA does not apply because the power
concerned is a private and not a public power. It is no doubt so that once grounds of review such
as unreasonableness, which are codified in the PAJA but are not part of the undeveloped common
law, are more fully developed, those developments will flow back into the body of the common law
as it is applied, via contract, to voluntary associations. The irony of this is that the well-known
minority judgment of Jansen JA in Theron v Ring van Wellington van die NG Sendingkerk in Suid-

62 of 73
Afrika 1976 (2) SA 1 (A), one that held out so much hope for the development of review for
unreasonableness in the 1970s and 1980s, will have come full circle.

Brink v DSG 2012

The first applicant was a learner enrolled at the first respondent school. In applying for enrolment at
the school, the first applicants parents had agreed, on behalf of themselves and their daughter
(the learner), to comply with the rules, regulations, policies and procedures of the school. In
February 2012, the learner left her room at the boarding school, to go to the room of a boy at the
neighbouring boys school. Upon being discovered, the learner was summoned to a disciplinary
enquiry, which culminated in her expulsion from the school.
In the present application, the applicants sought interim relief, pending an application for the review
of the decision to expel the learner. The relief claimed by the applicants was that, pending the
finalisation of the review proceedings, the decision of the Tribunal should be suspended and the
learner allowed to attend the school (not as a boarder). The respondents argued that the relief
sought was in substance and effect, final relief, in that such relief would amount to a final
determination of rights.
Held that if the interim relief sought was granted, the applicants would achieve in substance what
they sought in final relief, namely a lesser sanction than expulsion. By the time the review
application was finalised, the academic year would be almost over, and as the learner was in her
final year, she would not have been expelled. Thus, in substance final relief was sought, and the
matter was adjudicated accordingly.
The review application had to be dealt with against the principles of natural justice, developed in
accordance with section 39 of the Constitution, to include rationality as a ground for interference.
The Court could find no fault in the manner in which the school arrived at its decision to expel. The
application was dismissed with costs.
Marais v Democratic Alliance (common law) principles of natural justice
In Marais v Democratic Alliance 2002 (2) BCLR 171 (C) Van Zyl J held that decisions by the
respondent political party that a member, the mayor of Cape Town, relinquish his position and a

63 of 73
subsequent decision to expel him from the party were not administrative actions as contemplated
by the PAJA but were reviewable in terms of the common law on the basis of a duty to act in a
procedurally fair manner, implied in the contract between member and party in terms of the party's
constitution (paras 48-58). His starting-point appears to have been that it is only on rare occasions
that private bodies perform administrative acts: when they exercise public power or perform public
functions and when they do so in terms of an empowering provision (para 48). He held that the
respondent's decisions did not amount to administrative action because in the first instance they
did not amount to the exercise of public powers (para 51): 'A decision compelling the mayor of a
large city to relinquish his mayoral office will certainly arouse wide-ranging public interest,
particularly if it is initiated by a "political judgment" of the leader of the ADMINISTRATIVE LAW 9
political party that the mayor represents. The perception cannot be faulted that a mayor occupies a
public office that requires of him or her to protect the interests of the public, as represented by the
electorate and the community at large. He or she would inevitably feature prominently in the public
eye. It does not follow, however, that a decision to remove him or her from office constitutes the
exercise of public power or the performance of a public function in terms of an empowering
provision. Every case must be considered in accordance with the relevant facts and circumstances
pertaining thereto.' Because the respondent appeared to have 'devised a scheme designed to yield
a pre-determined outcome' that amounted to a 'political stratagem to remove the applicant as
mayor without first having to resort to disciplinary proceedings', its decisions could not - indeed,
could 'never' - be regarded as administrative actions: they were not taken 'in the exercise of a
public power or in the performance of a public function, however widespread the public interest
therein and the public reaction thereto might have been' and because they were not of an
administrative nature, being 'patently political decisions instigated and initiated by the
"politicaljudgment" of the respondent's leader' (para 58). Secondly, Van Zyl J held that the
decisions were not administrative acts because they were not taken in terms of an empowering
provision: because the empowering provision in terms of which the respondent purported to act,
namely its constitution, did not authorize it to remove the applicant from his office as mayor of
Cape Town, and because the second decision - to expel him - was a decision that followed this
decision, it had no power to do what it did, and hence could not be said to have acted in terms of
an empowering provision (para 55). The final basis upon which Van ZylJ held the decisions not to
be administrative action can be dealt with concisely. (His other findings will be discussed below
within the context of the public law and private law divide.) The consequence of his finding that it is
only decisions that are taken in terms of an empowering provision that can be said to be
administrative action is that the moment a decision-maker acts unlawfully by straying beyond his or
her powers, he or she has not acted administratively. In the result, the PAJA defines as
administrative action only valid administrative action, and all of the grounds of review that deal with
lawful administrative action can be ignored. This is obviously an incorrect understanding of the
PAJA. A comparable and illustrative nonsequitur is that since the unfair labour practice jurisdiction
only applies to employers and employees, it cannot be invoked by a 94 ANNUAL SURVEY OF SA
LAW person who was dismissed - because he or she is no longer an employee.
In Marais v Democratic Alliance 2002 (2) BCLR 171 (C) it was argued by the respondent that a
decision taken by a political party to remove a public representative from public office - that of
mayor of Cape Town - was administrative action for purposes of the PAJA. Van Zyl J held that this
submission was incorrect: the decision did not involve an exercise of public power but was rather
private in nature. What Van ZylJ appears to have lost sight of is the role of political parties in South
African politics. They are not simply clubs for like-minded people: they occupy a central place in

64 of 73
the electoral system in all three spheres of government. Without political parties, the electoral
system cannot function. They have been integrated into the system of governance. The electorate
votes for parties, not people. In this sense, political parties are at the heart of the system of
government that s 1 (d) of the Constitution contemplates as a founding value of the South African
democratic state. The section states expressly that South Africa is required to have a 'multi-party
system of democratic government' that serves the purpose of ensuring 'accountability,
responsiveness and openness'. In this context, the decision to remove the mayor of one of the
largest municipalities in the country from office is not just a decision that may excite public curiosity
or generate fierce debate: it is a decision that goes to the heart of governance under the
Constitution. The fact that the decision was 'political' in nature makes no difference. Surely Van Zyl
J was not suggesting that the decision of the leader of a political party that a political officeANNUAL SURVEY OF SA LAW bearer should relinquish the office he or she holds as a
representative of the party in a sphere of government is akin to the President's executive powers,
such as the power to appoint and dismiss Cabinet ministers. That the decision involved the
weighing up of political considerations does not make it any less of an administrative decision.
After all, virtually every decision of a political party will involve political issues. That is the core
business of all political parties. As Van Zyl J himself showed, this fact did not render the decision
any less reviewable for procedural fairness

Max v Independent Democrats (common law)

In Max v Independent Democrats 2006 (3) SA 112 (C) (discussed further under 'The effect of an
internal appeal') Davis J commented that, from a practical point of view, it does not matter much
whether the common law applies (with administrative law controls being imposed on the party via
implied terms in the contract between it and its member, as in the so-called Jockey Club cases) or
whether the disciplinary functions of a political party fall within the definition of administrative action
in the PAJA. In this case it was appropriate to control the party's exercise of power by way of the
rules of administrative law because it 'exercised a power which could be classified as one which is
not only suitable, but which is essential to be rendered accountable to rational principles of the kind
contained in the body of administrative law' (at 118D). He held, however, that when a political party
disciplines a member with a view to removing him or her from a seat in a legislative body, it
ADMINISTRATIVE LAW 111 exercises a public function. When it expels a member in these
circumstances, its 'decision has public implications in that the expelled person can no longer
represent the electorate which voted for that particular party. That decision has clear public
implications' (at 122C-D). Davis J reached much the same conclusion in Diko vNobongoza2006 (3)
SA 126 (C).
In court proceedings rule 49 (11) of the Uniform Rules provides expressly that unless the court
directs otherwise, the noting of an appeal suspends the operation of the order appealed against
until the appeal has been decided. This rule expresses the common-law position. The issue in Max

65 of 73
v Independent Democrats & others 2006 (3) SA 112 (C) (discussed further under 'Administrative
action') was whether the same common-law rule applies to the noting of an internal appeal against
an administrative decision or a disciplinary decision of a voluntary association. DavisJ held that
what he termed the rule of automatic suspension ought to apply for a number of reasons. First,
there was nothing in the first respondent's code of ANNUAL SURVEY OF SA LAW conduct that
precluded the operation of the rule (at 120H). Secondly, this case concerned not merely a private
disciplinary process but one that had public implications, as the applicant was in danger of losing
his seat in a provincial legislature. This made it appropriate for the rule to apply (at 1201-121G).
Thirdly, the practical implications of the non-application of the rule were that the applicant would
lose his seat without a prospect of being reinstated if his appeal were successful (at 121H-J).
Finally, the application of the rule, in circumstances in which the public interest is involved, would
be consistent with the Constitution's values of accountability and fairness (at 122A-D). While some
of these reasons appear to be specific to the circumstances of the case, as a statement of principle
the operation of the rule would generally contribute to the achievement of administrative justice and
the advancement of fair dealing on the part of the administration. Max's case is an illustration of the
need for the rule to apply in administrative processes.

NB Van Zyl v New National Party

The issue arose again in Van Zyl v New National Party & others 2003 (10) BCLR 1167 (C). In this
matter the applicant had been nominated by her party as a member of the Western Cape
delegation to the National Council of Provinces (NCOP). The provincial legislature had lost
confidence in her and duly passed a vote of no confidence in her. As a result of this her party
passed a resolution recalling her from the NCOP. She attacked both the vote of no confidence and
the resolution recalling her. The applicant argued that the vote of no confidence was an
administrative decision that was irregular for various reasons. Van Reenen J held that factually she
could not establish the grounds of review that she sought to rely upon (para 42). He appears to
have left open whether it constituted administrative action, holding that the decision was
unreviewable not because it was a political question (para 52) but because a court was not
institutionally competent to subject the issue to review for reasonableness (paras 49-54). He held,
however, that while the provincial legislature 'was clearly not performing a legislative function, it
was nevertheless functioning as a popularly elected deliberative legislative body, the business
whereof takes place in an assembly open to the public; whose members are, subject to its rules
and procedures, at liberty to articulate their own views on any proposed motion; entitled to vote in
favour of or against it for their own reasons; and politically accountable to their constituents' (para
48). He also stated, obiter, that 'it does not appear to me that the vote of no confidence adversely
affected any rights of the applicant: nor did it have a direct external legal effect' (para 53). When
Van Reenen J turned to whether the resolution by the applicant's party to recall her amounted to
administrative action, his starting point was that as the resolution was taken by ajuristic person
(other than an organ of state) it would qualify, in terms of s 1 of the PAJA, 'if it constituted the
exercising of a public power or the performance of a public function in terms of an empowering

66 of 73
provision and adversely affected the rights of the applicant and further, had an external legal effect'
(para 66). He held, first, that the party had acted in terms of an empowering provision, a section of
its constitution (para 71). Secondly, he held that the exercise of power by the party was indeed the
exercise of a public power. In reaching this conclusion he took the following into account: the
authority to recall a member only arises after a motion of no confidence in the member has been
passed by the provincial legislature, and the party concerned is under no obligation to recall its
member (para 71); the NCOP is a public body, being one of the two houses of our bicameral
Parliament, individual members of the Western Cape delegation are under specific obligations in
terms of the provincial Constitution to take an active part in the workings of the NCOP for the
benefit of the province and the country, and to take part in the work of committees of the NCOP
and, again in terms of the provincial Constitution, members of the NCOP could be required to
attend the provincial legislature or any of its committees (para 73); and by accepting the
nomination to the NCOP, the applicant 'became a member of a public body, with legislative and
other functions which are intended to serve the interests of the general public in the provincial as
well as the national sphere and that the applicant, by having accepted the nomination and
appointment, assumed the responsibilities that flow from such membership' (para 74). He defined
public power to mean 'the ability to act in a manner that affects or concerns the public' (para 75).
Van ReenenJ concluded (para 76): 'In my view the exercising of the authority to recall a permanent
delegate to the NCOP in terms of section 62(4)(c) of the Constitution constitutes the exercising of a
public power. That conclusion is based thereon that the exercising of such authority has an
influence on how the NCOP; the delegations of the respective provinces; and the joint committees
on which delegates may serve, are constituted and may affect the manner in which these bodies
perform their functions and duties, and that in turn may impact upon the interests of the community
on provincial and national levels. Accordingly the exercising of that authority has a strong public
component. The argument that the fact that a party who nominated the delegate in whom a vote of
no confidence has been passed is not obliged to recall him deprives it of any public character does
not impress me. The power granted is to recall such a delegate. A failure to do so merely manifests
a declination to do so. What one is dealing with in this case is the exercise of that power, which is
conduct not merely confined to the internal affairs of the NNPWC ... and not its declination.' On the
issue whether a right had been adversely affected by the resolution to recall the applicant, Van
Reenen J held that the word 'right' had to be given a wider meaning of a legally protected
entitlement rather than the narrower private-law notion of the 'correlative of a duty or obligation'
(para 81), concluding that the word is not used in the PAJA in the narrower sense but 'in a wider
sense that at least encompasses enforceable and prospective rights' (para 82). He found that the
applicant enjoyed the fundamental right to stand for and hold public office and to the benefits including salary - of membership of the NCOP. By recalling her prior to the end of her term as a
member (which it was entitled in its discretion to do), her party had 'deleteriously' affected her
rights (para 84). As to whether her rights had been 'adversely affected', Van Reenen J held that
they had been, interpreting this term to mean 'unfavourably influenced' (para 85). In his view the
resolution under challenge 'clearly affected the applicant's rights adversely and materially' (ibid).
He held, too, that the decision had an external legal effect because it was 'a final decision' and
constituted 'a legally binding determination of another legal entity's rights' (para 86). Finally, he held
that it was a decision of an administrative nature because - the judgment is not particularly clear on
this - the decision involved the exercise of a discretionary public power that was susceptible to
rationality review (paras 89-93). In our view the conclusion reached by Van ReenenJ was correct.
The judgment illustrates, however, the immense problems that the poorly conceptualized and badly
drafted provisions of s 1 of the PAJA are bound to create. The inherent vagueness of concepts

67 of 73
such as 'of an administrative nature' and the even more dangerous German concept of 'direct
external legal effect' - which flounders in our law like a fish out of water - are bound to cause more
trouble than they are worth. Inevitably, they will serve as a dampener to efforts to enforce the
values of open, accountable, responsive, lawful, rational, fair and ethical administration.
Van ReenenJ held in Van Zyl v New National Party & others 2003 (10) BCLR 1167 (C) that the
exercise of power of a political party in recalling a member from the National Council of Provinces
was administrative action and, as such, subject to the PAJA. (See under Meaning of administrative
action: Administrative power and private power above.) It was argued that because the constitution
of the first respondent provided for an internal remedy in the form of an appeal, and the applicant
had not made use of this remedy, her application had to be dismissed. She had failed to comply
with the provisions of s 7(2) of the PAJA, which provides (subject to a limited form of exemption,
not of application in this case) that 'no court or tribunal shall review an administrative action in
terms of this Act unless any internal remedy provided for in any other law has first been
exhausted'. Van ReenenJ held, following the judgment of Van ZylJ in Marais v Democratic Alliance
2002 (2) BCLR 171 (C), that the constitution of a voluntary association was not included in the term
'any other law'. Section 7(2) did not apply (paras 58-9). He held further that the common law did
not require that the internal remedy be exhausted since the constitution of the first respondent did
not require the internal remedy to be exhausted prior to review proceedings, but gave aggrieved
parties the option of using it if they wished. He also held that it was not an effective remedy in this
case (para 60).
Theron v Ring van Wellington van die NG Sendingkerk in Suid Afrika
the same principles applied whether decisions of statutory or contractual bodies were under
review.
Appellants had been found guilty by the Circuit of Wellington of certain charges of contravening the
Ordinance of the Church. At a meeting of the Circuit on 10 May four proposals relating to the
punishment to be imposed on the appellants were made. After voting the proposal requiring the
appellants to be warned was accepted. There was much dissatisfaction amongst certain members
of the Circuit over the decision and, after the chairman had resigned, the meeting broke up in
disorder. The meeting was resumed on 12 May. A proposal to
1976 (2) SA p2
submit the decision relating to punishment to revision was accepted and thereafter, after voting on
two proposals relating to punishment, a heavier punishment was imposed on the appellants.
Appellants thereupon appealed to the General Synodal Commission against the revision decision
and heavier punishments. Although the appellants did not attack the decision of 10 May, the
Commission found that that decision was invalid because the punishment proposals before the
Circuit could have confused the members of the Circuit and that the voting was in conflict with Rule
1 (12) of the Church Ordinance. The Commission decided further that, as the decision of the 10th
was invalid, all acts flowing from that decision, including the revision decision and punishments of

68 of 73
12 May, were invalid and the matter was remitted to the Circuit. Appellants applied in a Provincial
Division for the review of, inter alia, the decision of the General Synodal Commission but the
application was dismissed. An appeal to the Full Bench was also dismissed. In a further appeal,
Held, per JANSEN, J.A. (VAN BLERK, A.C.J., concurring), that the 'regulations of the Church' in
the Regulations and Rules (the Ordinance of the Church) of the N.G. Sendingkerk in Suid-Afrika
were jurisdictional matters and not part of the merits of a decision of either the Circuit or of the
General Synodal Commission (Synod).
Held, further, that the rights of the appellants under the Church Ordinance to '... put (their interests)
to the General Synodal Commission in a document which develops the case' had been frustrated
in that the Commission had decided the appeal on a ground which had never been raised and
which the appellants could also not have foreseen; that the confusion had arisen after the voting
and there was no evidence upon which it could reasonably be concluded that the nature of the
proposals or the voting procedure had contributed thereto; that there was no evidence upon which
the conclusion could reasonably be reached that the proposal that the appellants be punished by
way of a warning did not reflect the true intention of the majority of the meeting.
1976 (2) SA p3
Held, further, in relation to the question whether the voting was in conflict with Rule 1 (12), that in
the case of associations a strict compliance with all the procedural rules was not required if nobody
was burdened by the deviation therefrom and neither during the meeting nor thereafter had any
objections been raised by those concerned.
Held, per HOFMEYR, J.A., that the principles of natural justice had been violated by the
Commission and the appellants seriously prejudiced by taking the decision of the Circuit of 10 May
under consideration in the circumstances and by depriving them of a proper and fair hearing
regarding the punishment which could legally be imposed on them.
Held, accordingly (per JANSEN, J.A., VAN BLERK, A.C.J., and HOFMEYR, J.A., concurring), that
appellants were entitled to an order declaring that the proposal accepted by the Circuit on 10 May
had been validly accepted and constituted the valid imposition of punishment on the appellants.
Per JANSEN, J.A., (VAN BLERK: A.C.J., concurring): In the review of decisions of statutory bodies
it is necessary in the application of the formal standard (namely, the general principle that a court
cannot concern itself with the question of how a body, clothed with a discretion, exercised its
authority, but only with the question of whether the body actually exercised its authority, but only
with the question of whether the body actually exercised its discretion) to distinguish between the
'merits' of the act of a body and decisions in respect of questions of law and questions of fact
concerned therewith but which fall outside the 'merits'. It is sometimes said that the latter refer to
'jurisdictional facts' or 'preliminary or collateral issues'. Where the dividing line between pure
'merits' and these matters lie is difficult to determine with precision. It is clear that in general an act
of a judicial nature of a contractual tribunal (of a voluntary association) can be interfered with on

69 of 73
the grounds embraced by the formal standard: it is a necessary consequence of the application of
the basic principles of contract, especially that of good faith. It is also a necessary consequence
thereof that in general the extended formal standard must also be applied. A contractual tribunal
can indeed be subject to a standard of reasonableness.
1976 (2) SA p4
The decision in the Cape Provincial Division in Theron en Andere v. Ring van Wellington van die
N.G. Sendingkerk in SA en Andere, 1974 (2) SA 505, reversed.

Turner v Jockey Club of South Africa (South African Case)

The appellant in Turner v Jockey Club of South Africa 1974 (3) SA 633 (AD) was a jockey, licensed
under the rules o the respondent club, who had been found guilty by domestic tribunals of the club
of corrupt practice. The allegation which had been made against the appellant was that he had
bribed an apprentice jockey to 'pull' a horse in a race which in the event was won by the appellant's
mount. The proceedings of the domestic tribunals concerned had been taken on review to the
Witwatersrand Local Division, and the present appeal by consent to the Appellate Division was
against the decision of that court. Botha JA, delivering the judgment of the appeal court, made the
following observations: 'What the fundamental principles of justice are which underlie our system of
law, and which are to be read as tacitly included in the respondent's rules, have never been
exhaustively defined and are not altogether clear.... 'The principles of natural justice do not require
a domestic tribunal to follow the procedure and to apply the technical rules of evidence observed in
a court of law, but they do require such a tribunal to adopt a procedure which would afford the
person charged a proper hearing by the tribunal, and an opportunity of producing his evidence and
of correcting or contradicting any prejudicial statement or allegation made against him. . . . The
tribunal is required to listen fairly to both sides and to observe 'the principles of fair play'. . . . In
addition to what may be described as the procedural requirements, the fundamental principles of
justice require a domestic tribunal to discharge its duties honestly and impartially. . . . They require
also that the tribunal's finding of the facts on which its decision is to be based shall be "fair and
bonafide". . . . It is, in other words, "under an obligation to act honestly and in good faith" . . .' (at
646). CONSTITUTIONAL AND ADMINISTRATIVE LAW I / The learned judge found on the facts
that evidence 'most prejudicial' to the appellant had not been disclosed to him to enable him to deal
with it before the domestic tribunal that had convicted him, and that this had been 'fundamentally
unfair' (at 651). On this question of 'fairness' Botha JA added the following comments which, with
respect, properly stress an important 'inquisitorial' element in the law relating to the procedure to
be observed by disciplinary tribunals: 'The power to conduct an enquiry under the respondent's
rules seems to me necessarily to imply an investigation by the board conducting the enquiry into
the truth of the allegations made against the person charged, and not a mere adjudication by the
board upon the evidence placed before it. Having regard to the fact that the person charged is not
entitled to legal representation, and that no prosecutor appears to present the evidence against the
person charged, a board conducting an enquiry should, therefore, in my view, particularly where,
as here, the evidence consists of written statements, take an active part in the proceedings in its
quest of the truth, and not assume a mere passive role by limiting itself to an adjudication of the
evidence presented' (at 652-3). The court further held that the stipendiary stewards who had

70 of 73
conducted the initial enquiry had in their zeal to repress malpractices in racing in South Africa been
rendered 'something less than impartial', and as a result the enquiry had not been conducted in a
manner 'such as one would have expected from a fair and impartial tribunal' (at 253). Moreover,
the failure of justice in the original hearing had not been cured or corrected on appeal to the appeal
tribunals provided for in the rules of the Jockey Club: in this regard, Jockey Club of South Africa v
Feldman 1942 AD 340 had to be distinguished. Botha JA pointed out that in the latter case
Feldman had failed to raise the irregularities complained of in his appeal to a higher domestic
tribunal, and because he had purported to lay all his complaints against the finding of the racemeeting stewards before that appeal tribunal it was held by the Appellate Division that he could not
thereafter claim the intervention of a court of law on the ground of the alleged irregularities.
However, Turner had not been made aware of the irregularities in his case until affidavits had been
filed before the court of review, and accordingly he was not to be denied a remedy by the court. In
the view of the court the failure to afford him a fair and impartial hearing could only have been
corrected by a full hearing de novo, and this had not taken place.
R v Disciplinary Committee of the Jockey Club: ex parte Aga Khan (English Case)
Facts
The Jockey Club, incorporated by Royal Charter, is responsible for the national regulation and
organisation of racing. The clubs powers and duties do not derive from statute. Its importance
within racing is maintained through the issue of licences and permits by which the clubs stewards
enter into contracts with racecourse managers, owners, trainers and jockeys, who submit to the
clubs comprehensive regulatory code, the Rules of Racing. The applicant, a racehorse owner
registered with the club, had agreed to be bound by such rules. A filly owned by the applicant failed
a urine test and was disqualified by the clubs disciplinary committee pursuant to the Rules of
Racing. The applicant sought an order of certiorari to quash the committees decision. The
Divisional Court dismissed the application. The applicant appealed.
Issue
Whether a decision of the disciplinary committee of the Jockey Club was amenable to judicial
review.
Held
Dismissing the appeal, the powers and duties of the Jockey Club, in spite of its dominant position
in a national sport, were not of a governmental nature but derived from the private contractual
agreements between the club and those who agreed to be bound by the Rules of Racing. Effective
relief was available by means of an assertion of the applicants private law rights and, accordingly,
the disciplinary committees decision was not amenable to judicial review.
Comment
This decision has been much-debated in the literature, where it has been suggested that things
might be different after the Human Rights Act. However, the decisionwas apparently approved at
first instance and on appeal post-HRA in R (Heather) v Leonard Cheshire Foundation (2001,
2002). In view of the decision of Richards J in Bradley v The Jockey Club (2004) that the standard
of review in private law under the common law supervisory jurisdiction is similar to that in public
law the significance of the distinction may be reducing.

71 of 73

Coetzee v Comitis 2001

In Coetzee v Comitis 2001 (1) SA 1254 (C) Traverso DJP came to a conclusion contrary to that of
Kirk-Cohen J when she was called upon to consider the constitutionality of the transfer rules of the
National Soccer League (the NSL). She held, in the course of dealing with the extended standing
of the applicant in terms of s 38 of the Constitution, that the NSL 'is a body which performs a public
function. Soccer is a sport which enjoys large support. The fate of soccer players is of public
interest. If, as contended by the applicant, the regulations of the NSL violate the fundamental rights
of the professional players, such as fair administrative action, fair labour practices, freedom of
association, human dignity etc, this is patently a matter of such vast public interest, that a narrow
approach would be inappropriate' (para 17.8). This approach to the control of the powers exercised
in the public sphere by ostensibly private bodies is far preferable to that in Cronje (supra). It
recognizes that public power is not only governmental power but also power that is meant to be
exercised in the public interest and in the public sphere, as opposed to power exercised for private
benefit and in the private sphere. This is the central fallacy of Cronje highlighted by the reliance of
Kirk-CohenJ on such cases as RvDisciplinary Committee of thejockey Club: ExparteAga Khan
[1993] 2 All ER 853 (CA), which represent the retreat from Datafin in England. Nonetheless, and
significantly, in that case the aggrieved party was in contractual privity with the Jockey Club and
hence had contractual remedies. Two of the three judges hinted at the possibility of a different
result had there been no contract (Bingham MR at 867f and Farquharson LJ at 873c-d).
Traverso DJP held in Coetzee v Comitis 2001 (1) SA 1254 (C), a challenge to the constitutionality
of the transfer rules of the National Soccer League, that as this body performed public functions it
was subject to the Constitution. Since the challenge was based on the alleged infringement of
fundamental rights, Traverso DJP held that the applicant had standing to litigate on behalf of or in
the interests of other professional soccer players and potential professional soccer players (paras
17.8, 17.9 and 17.10). Not much in the way of evidence appears to have been adduced by the
applicant apart from an allegation that he enjoyed broad support from other players. In the light of
the approach to standing in Ngxuza in both the High Court and the Supreme Court of Appeal it is
open to doubt whether the applicant could be said to have had standing to institute a class action.
He probably ought to have been held to have had standing in the public interest.

Tirfu Raiders Rugby Club

72 of 73
The applicant, a rugby club, had sought, in terms of the Promotion of Administrative Justice Act 3
of 2000, the review and setting aside of a decision taken by the first respondent (the national rugby
union).
Held that the applicant had satisfied the court that the unions decision had adversely affected its
legitimate expectation that the unions approach in determining the top black rugby club would be
the same as in the past. The court found that the unions management committee, in taking the
decision, exercised a public power as contemplated in the definition of "administrative action" as
defined in section 1 of the Promotion of Administrative Justice Act. The provisions of the Act were
therefore applicable.
In not affording the applicant a hearing prior to making the decision, the union violated the
provisions of section 3(1) of the Act. The court therefore granted the review application.

National Horseracing Authority

In National Horseracing Authority of Southern Africa v Naidoo andAnother 2010 (3) SA 182 (N), the
applicability of the PAJA to such conduct was raised. The case dealt with the quintessential
example of this issue in South African law - disciplinary action taken by a body formerly known as
the Jockey Club (the applicant). In a number of well-known cases involving the Jockey Club our
courts have developed the law relating to the review of disciplinary decisions of domestic tribunals.
Following the enactment of the PAJA and its particular focus on 'public power' or 'public function' as
the key ingredient of administrative action forming the core of our contemporary administrative law,
it is not clear what the basis for review of bodies like the Jockey 54 ANNUAL SURVEY OF SA LAW
Club's disciplinary action would be. In the present matter, Wallis J, in a minority judgment,
expressed strong views in favour of subjecting such action to the PAJA. However, he refrained from
ruling on the issue (para [29]). Wallis J suggested that the PAJA may be applicable, given the
(near) monopolistic power that a body such as the National Horseracing Authority of Southern
Africa wields over a major sport, effectively exercising exclusive control over participation, in which
the public has an interest and against the backdrop of the government's clear interest in national
sports. He also noted with approval the English test of subjecting private bodies to judicial review
on the basis that '[i]f they did not exist and regulate the activity in question government would
probably intervene and create a public body to do so' (para [25]). However, the majority had serious
reservations about his views and held that the case should not be decided in terms of the PAJA,
but on the basis of the pre-PAJA common-law position as it emerged from the line of Jockey Club
cases, as pleaded. Also, without deciding whether the PAJA is applicable to disciplinary conduct of
domestic tribunals, the majority noted that 'it is doubtful whether the framers of the Constitution and

73 of 73
the legislature in enacting [the] PAJA intended to bring such domestic tribunals under its umbrella'
(para [6]).
National Horseracing Authority of Southern Africa v Naidoo and Another 2010 (3) SA 182 (N) also
involved rationality as ground of review outside of the PAJA. In this matter the majority of the court
reviewed a disciplinary decision of a domestic tribunal in terms of common-law principles flowing
from the well-known Jockey Club cases and expressly not in terms of the PAJA. However, the court
noted that these common-law principles also had to be developed under section 39 of the
Constitution, which in the present matter meant that the application of rules of natural justice to
such decisions now also had to include an element of rationality. A review court could thus ask if
'the decision made is rational in relation to the evidence laid before the tribunal' (para [11]).