Class Notes

ADMINISTRATIVE LAW KARTHY GOVENDER
- Moodle Class notes outline / Slides in class

- Lecturer
- Cases
- Order point numbers as covered in lecture

- *** Exam questions on recent matters/ topical matters
o Example SASA, film publication board
Part 1.
INTRODUCTION AND THE CONTEXTUALIZATION OF ADMINISTRATIVE LAW.
The first segment of the course is taught by Professor Govender and

describes and analyses:
 The history of Administrative Law,

 The common law principles of Administrative Law,
 The development of the new Administrative Law and
 The constitutional context within which Administrative Law functions..
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Prescribed articles:
1. Hugh Corder ‘Reviewing review: much achieved, much more to do’ in

Realizing Administrative Justice at 1.
2. Cora Hoexter “The current state of South African Administrative Law’ in

Realizing Administrative Law at 20.
3. Karthy Govender ‘Administrative Law as a surrogate for Human Rights

law’ in Realizing Administrative Justice at 45.
- Dealt with the transition from Apartheid to the new order.
4. Segments from CSAP handbook.
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ISSUES COVERED IN THIS SEGMENT.
1. The History of Administrative Law and its use as a surrogate for

human rights law.
Prior to 1994, Admin law was used as a surrogate for Human Rights law. Admin
law’s principles were found in the common law. A replacement for HR law (because
no Bill of Rights)
o Hira v Booysen
Facts: Case was decided in early 90s. The teachers who wrote article regarding the
joys and frustrations of teaching; they were at a school in Stanger and they belonged
to a Trade Union. The article was distributed to fellow educators. They were hence
charged with misconduct under a statute that said: you cannot criticise the
department publicly other than a meeting organised by the TU. They were convicted,
found guilty on the contravention and fined R200. They then appealed to the minister
of the appellate tribunal who reduced the fine to R100. Still unsatisfied they argued it
all the way to the Appellate division (the highest court) – based on the statute
because they didn’t have a Bill of Rights at the time – hence they argued the
statute’s use of the word “publicly” and its interpretation. Applicants said that the
word “publicly” must be interpreted narrowly so as not to infringe their freedom of
expression (even though they did not have the right to it yet). Because they
misinterpreted the meaning of the word publicly and they said that when they
handed the pamphlets to all the teachers it was publicly done – the convection was
incorrect. In practice, one would:
 Argue that it is a violation of PAJA and the violation of another

constitutional right.
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2. The definition of Administrative Law***

S33 of the Constitution (definition)
- Admin law is about the regulation of public power/ control over the
exercise of public power in order to ensure that public power is exercised
reasonably, procedurally fairly and lawfully.
- The need for discretionary power in the modern state (We can’t be a rule
based state – must be discretionary through government officials – E.g.: they
would decide whether to grant a tender or social pension) Administrative Law
simply provides criteria which assists in the exercise of discretion and test the
exercise this discretion.
- Put in place checks and balances to ensure an accountable, responsive and
democratic administration. Constitution seeks to ensure that we have the
above.
General Administrative Law and specific Administrative Law.
o General Administrative Law - PAJA represents the minimum standard with

which all administrative agencies must comply. Basic norms contained in
PAJA that apply to all administrative agencies. This is general
Administrative Law because these principles apply across the board.
o Specific Administrative Law – Film and Publication board is a type of
administrative agency. Every administrative agency has their own
legislation. That law is referred to as the enabling legislation (enables
them to act). When we refer to specific administrative law, we refer to the
enabling act as the rules that pertain to any particular agency. These
specific principles can add on to PAJA and give more rights, but they can’t
subtract from PAJA or diminish the rights in PAJA.
SPEAR CASE JUDGEMENT***
The general administrative law principles of PAJA and the principles

that pertain to that specific agency – will be relevant when appearing
for or against these boards.
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Admin in operation (the way administration works)
 Parliament
o Act of Parliament provides for the enabling section. The enabling
legislation empowers a senior functionary to make Rules/ Regulations
which allow the Secondary functionary to make Decisions. (make sure that
final decision is in). This can be taken on Appeal if unsatisfied.
 E.g.: The Social Security Act of South Africa says that if somebody is indigent
they are entitled to a social welfare grant. With these rules, the minister then
decides how one would determine these decisions or what criteria to use. The
minister then puts in place the rules and regulations. This then enables the
official of the department to see whether you qualify for the grant.
Furthermore, if you are unhappy with the decision of the official you can
appeal to an appellate court.
 For example the Film & Publications Act where the act says that if any
material is harmful to children, it must be classified. They have a council that
established council that decides this. In classifying and applying an age
restriction, if someone is unhappy they can appeal to the tribunal.
 We will work to establish whether the final decision is in accordance with the
enabling act.
 The minister of finance is the head of the treasury (political head of that
department). Below the minister of finance you have an entire bureaucracy –
replicated in all other departments. The administrative head is the Director-
General and its officials. We as the public interact with the officials on a daily
basis.
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THE CONSTITUTIONAL JOURNEY***
It can be said that this area of Administrative law has had a profound development,
in that administrative law began merely as principles of the common law and is now
being constitutionalised. (From the Common Law to section 33)
o The Wits Nigel principles/ Common Law principles until 1994
- In the past, that is prior to ’94 if you set aside a decision of the administrator,
you had to use the Wit’s Nigel test/standard:
 The applicant must show that the functionary failed to apply his/her
mind to the behests of the statute and the tenets of natural justice.
This may be shown by proving that the decision was arrived at
arbitrarily.
- so therefore according to the test 3 requirements had to be fulfilled:
(1) Show that the functionary didn’t apply his/her mind to the behest of the statute.
(2) Show that the functionary didn’t act procedurally fairly
(3) Must be so grossly unreasonable that something else could be inferred from it.
Note: the Wits Nigel Std contained very restrictive grounds for review.
Two questions to be asked:

-Has the functionary behaved in accordance with the rules of natural justice- being
the audi arterum partem?
- Has the functionary behaved in accordance with the behest of the statute?
Prior to ’94, these requirements were so restrictive, as they didn’t want the judges to
interfere with every decision the functionary made. Judges would intervene to ensure
that the functionary acted reasonably, lawfully and justiciably.
Key problems with the common law standard:

 There was no obligation on the administration to provide reasons for their
decisions. English law provides that reasons don’t have to be given.
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 The lack of reasons prevented South African admin law from developing
further. But in the 90’s there was change, and now it stands in our
Constitution, that the administration must give reasons.
3. The common law grounds of review.

 “Broadly, in order to establish review grounds, it must have been shown that:
- The president failed to apply his mind to the relevant issues in accordance
with:
1) the behests of the statute
2) the tenets of natural justice
… Such failure may be shown by proof, inter alia, that the decision was
arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted
adherence to a fixed principle or in order to further an ulterior or improper
purpose;
 These are the Wits Nigel principles. These were the only grounds on
which we could review administrative decisions pre-1994.
 It indicates that ITO the common law you could review a decision on
two bases:
 Either because the functionary failed to act with the statute or
enabling legislation
 The decision is being reviewed because the functionary failed
to act in accordance with the rules of natural justice. There
were two rules of natural justice.
 Scare the other side
 You can’t be a judge in your own home (referred
to as the rules against bias)
- OR that the president misconceived the nature of the discretion conferred

upon him and took into account irrelevant considerations or ignored relevant
ones;
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The biggest problem was during 1994, under apartheid, when government
made a decision they didn’t have to give you any reasons. However, we are
now one of the few constitutional democracies in the world that has a
constitutional obligation to give reasons for the decisions.
- OR that the decision of the president was so grossly unreasonable as to

warrant the inference that he had failed to apply his mind to the matter in the
manner aforestated.”
Therefore according to the common law, if the decision was unreasonable – it
was inadequate. Even if it was grossly unreasonable it was inadequate. It
must be so grossly unreasonable as to infer a failure to apply his mind.
– Corbett JA in JSE v Witwatersrand Nigel 1988 (3) SA 132 at 152
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4. No requirement to give reasons for decisions under the Common

Law and the consequence of this.
Post-Apartheid Administrative Law
 Breakwater Declaration
TEST QUESTION: ***
- Reflect on BD and indicate extent to which it was incorporated into statute
- Explain how these have been given expression in our law
(To create a new vision of administrative law in South Africa. A bridge

between the very sterile common law and the new order)
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5. Areas of agreement and the vision for a future administrative law as

espoused in Breakwater 1.
These are some of the key recommendations that ultimately found expression
in PAJA creature
o Effective Parliamentary control and supervision over delegated legislation/

(wanted parliament to have some sort of oversight process over these
rules – because rules are what impacts people)
o Genuinely consultative and participatory rulemaking and decision making

procedure– Before the minister decides on a rule, there must be full
consultation and participation – For example E-tolls. S4 of PAJA deals
extensive with this on how to promulgate rules in a way that facilitates
public participation (accessible to the people affected – Corder)
o Explicit articulation in empowering legislation of (the purpose of conferring)

criteria governing the exercise of public power - the senior functionary is
going to make rules and regulations - but you want the enabling act of
parliament to guide his or her decision with “explicit articulation” of the
provisions. Rather explain to the minister or senior functionary the goals or
objective intended to be achieved as criteria. Set a standard that you don’t
give open-ended power to a minister to do anything he wants. Must act
within the confines of that criteria.
o A duty upon those exercising (all forms of public power) to give reasons for
their decisions on request and to give justifiable decisions Section 33(2) of
the constitution provides for reasons as well as Section 5 of PAJA***
which deals with the obligation to provide reasons.
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o Lawful, reasonable (S6 PAJA) and procedurally fair (S3 PAJA) Admin law
– this is how the person making the decision must act. We find this
expression in Section 33 of the constitution.
o Open government and access to official information – (PAIA and the

minimisation of the scope of official secrets legislation – Corder)
o Section 24 of the interim constitution – lawful, procedurally fair

reasons, justifiable – until February 1997
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6. The journey from section 24 through the deemed section 33 to

section 33 of the Constitution.
(See KG section on Admin Justice in Constitutional Law in Context)
- In 1994 there was revolutionary change when we introduced the Interim

constitution, and the administrative justice provision that governed the interim
constitution was section 24. This constitution had a lifespan of 2 years.
- Although the interim constitution fell away when the final constitution came
into effect, it is evident that this substantively continued under what we call
the deemed section 33.
 Read s33 (3) with item 23 of Schedule 6 of the FC.

 In 1997 the FC and the BOR came into effect. But in the FC, s33 said that the
right will only come into effect once a Nat Legislation is passed. So therefore
s33 was effectively suspended.
 Item 23, says while s33 is suspended, read the provisions given, i.e. s24 of
the IC. So s24 of the IC was kept alive until Nat Legis is enacted.
 Item 23, says law must be enacted within 3 yrs, otherwise s33(3) and s32(2)
of the FC would lapse.
 PAJA was enacted just in time, and therefore gives effect to s33 of the FC.
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Section 24 of the Interim Constitution
7. An assessment of section 24 of the Interim Constitution.

***MOOT: Jurisdictional facts* (affected or threatened) – USE THIS TERM IN TEST
- In order for you be “entitled”, you must satisfy these jurisdictional facts. You
must prove these jurisdictional facts in order to enjoy the right.
Entitled to Lawful Admin

Rights /interests Affected or Threatened
Action
If your rights/ interests are affected or threatened you are entitled to lawful
administrative action.
Entitled to Procedural Rights/ Legitimate
Affected or Threatened
Fairness expectations
If your rights/ legitimate expectations have been affected or threatened you are
entitled to procedural fairness.
Entitled to Reasons Rights/ interests Affected
If your rights/interests had been affected, then you are entitled to reasons.
Entitled to justifiable
Rights Affected or Threatened
reasons
If your rights were affected or threatened you are entitled to justifiable reasons.
 The idea was to create built-in criteria within the right.
o Deemed section 33 until PAJA was promulgated
- We look at Item 23 (subsection) of Schedule 6 of the Constitution
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SCHEDULE 6
Transitional Arrangements
Item 23. Bill of Rights
(1) National legislation envisaged in sections 9(4), 32(2) and 33(3) of the new
Constitution must be enacted within three years of the date on which the new
Constitution took effect.
(2) Until the legislation envisaged in sections 32(2) and 33(3) of the new Constitution
is enacted—
(a) Section 32 (1) must be regarded to read as follows:
“(1) Every person has the right of access to all information held by the state
or any of its organs in any sphere of government in so far as that information
is required for the exercise or protection of any of their rights.”; and
(b) Section 33(1) and (2) must be regarded to read as follows:

“Every person has the right to—
(a) Lawful administrative action where any of their rights or interests is
affected or threatened;
(b) Procedurally fair administrative action where any of their rights or
legitimate expectations is affected or threatened;
(c) Be furnished with reasons in writing for administrative action which
affects any of their rights or interests unless the reasons for that action
have been made public; and
(d) Administrative action which is justifiable in relation to the reasons
given for it where any of their rights is affected or threatened.”
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(3) Sections 32(2) and 33(3) of the new Constitution lapse if the legislation
envisaged in those sections, respectively, is not enacted within three years of the
date the new Constitution took effect.
8. The suspension of section 33 and the impact of item 23 of schedule

6.
 S33 (3) of the constitution envisages legislation being enacted –

which was PAJA
 This suspended the operation of S33 until that legislation has been
enacted.
 Where the entire BOR was coming into effect with the rest of the
final constitution, but one provision is being suspended – we
therefore needed to put something in its place in the meantime –
which was to be the content as Section 24. [LOOK AT ITEM 23(2)
(b) of Schedule 6]
 Until the legislation is enacted, S33 would be deemed to be read as
follows (essentially what S24 said – referred to as “the deemed
S33”)
- When PAJA was enacted in 2000, it brought into effect section 33
 Section 33 – lawful, reasonable, procedurally fair reasons

 ***Ask to explain growth of Admin law (5 marks)
 Common law to interim to deemed constitution to final
constitution
Just administrative action – S33
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1. Everyone has the right to administrative action (administrative action is the

jurisdictional fact) that is lawful, reasonable and procedurally fair. – limits the
right to administrative action.
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 [not like
other rights that are automatic – this right can only come into effect if national
legislation enacted. Therefore when PAJA (national legislation) came into
effect it activated the right] , 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
 Why did we undergo the above process and adopt this rule?
Because if you have a draft as general as section 33, then in effect the
courts are the ones determine the entire interpretation.
As part of the compromise, it was agreed that a democratically elected
parliament should enact a law [as per S33 (3)] to achieve balance
between accountable, transparency and proper administration on one
hand and effective administration or governance on the other.
It is for that reason that it was decided that we will isolate S33 until such
time as PAJA was passed.
Once PAJ was passed in 2000 – S33 and PAJA came into effect
simultaneously.
 Section 33 is a constitutional right. If there is an infringement of S33 and
you want to maintain the law or conduct, one must justify it with the
limitation clause.
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9. The cluster of administrative justice rights with specific focus on

sections 32 and 33 of the Constitution.
 As with many other constitutional rights – this is a cluster or bouquet of

rights. There are 3 categories of rights:
 S33 (1): 3 “bouquets” contained in S33(1):
 You are entitled to admin action that is lawful
 You are entitled to admin action that is reasonable
 You are entitled to admin action that is procedurally fair
Everyone is entitled to reasons if their rights have been adversely

affected by admin action.
 S33 (2)
 S33 (3)
 Parliament must enact a law that gives effect to the rights
in S33 (1) and (2) but also seeks to ensure effective
administration.
 S33 and PAJA – if you are going to bring a challenge under these, what
you are challenging must be admin action (AA). If it is not AA, you cannot
challenge it under S33 and PAJA.
 It is then either executive (EA) or legislative action (LA) – mainly AA or EA
 What the courts have done, is to develop the concept or principle of
legality. ITO S1(c) of the constitution that discusses the rule of law, the
principle is that if exercising public power – one must act in accordance
with the principle of legality. This has two parts:
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 The first part of legality is to act within your powers (act intra vares
your powers)
 The second part of legality is to act rationally
- If you are unsure whether it is AA, make your arguments ITO S33 and PAJA.
- Alternatively if it does not fall within PAJA, it can then be challenged under the
principle of legality.
- Section 32 was also suspended until PAIA came into effect
10. The distinction between reviews and appeals.
 Appeal is a rehearing of the merits of the matter. Hear the matter afresh
and make a fresh decision. Appeal is judgement based on merit.
Appeals: determination on the merits of the matter. The question is asked
whether the person making the determination made the right decision. The
appeal body will put itself into the shoes of the decision maker. The appeal
body will ask itself what is the correct decision to make in this particular case.
 Review – bring forward application in admin; more narrower and limited

that appeal; because if you succeed in review application you can only
bring review to high court; asking for decision to be set aside on the basis
that it is not lawful, reasonable or procedurally fair. Send back to
functionary to make decision again. Review is setting aside judgement.
It is procedural- if you successfully review a decision of an administrator it
gets set aside.
In admin law, we are concerned with reviews rather than appeals. Reviews
are more limited than appeals. In reviews you argue that a decision was
procedurally unfair, unlawful and unreasonable. If you are successful, in most
instances the court will set aside the decision and send the decision back to
the administrator to review the decision and come to the correct decision.
Very rarely will the court make the decision on behalf of the administrator.
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Review being a more limited process; you get a more limited outcome. You
proceed with a notice of motion and affidavit.
11. Chapter 10 of the Constitution.
 List of principles with which our administration must function

 Transparency, openness, accountability
 Those who exercise public power and exercise their discretion, they must
act in a way that advances Chapter 10
 Joseph case*** - Justice used Chapter 10 to say that these are the
broad principles which must be complied with. He then interpreted
provisions of PAJA in a way that advanced those principles.
 Principles set out in Chapter 10 are values the administration must
aspire to and also have a practical effect of being a guide as to how
PAJA should be interpreted.
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12. The role, operation and functioning of section 36 (the limitation

clause) and its relevance to Administrative Law.
 Once you have admin justice as a constitutional right it can only be limited
in terms of the limitations clause.
---- SEE KG and DU PLESSIS on moodle
Limitation of rights – S36

 It is important that you meet both of these requirements in S36.
 Rely on limitation clause (usually the state) – they have obligation to meet
both requirements in CH36
 The first requirement is a process requirement

 The limitation must be in terms of a law of general application – if
there is no law of general application then you cannot rely on the
limitation clause.
(1) The rights in the BOR may be limited only ITO law of general application (for
our purposes the law of general application is PAJA)
The law of general application should have or meet the following
requirements, which comes from the case of Fozi:
 Must be reasonably certain (a reasonable degree of certainty -
conduct that is prohibited, and conduct that is permitted)
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 Law must be accessible

 Must be of general application – can’t be focused on particular
individual or family
 Law must be rational (This is not from Fozi case but comes from
recent jurisprudence)
 The second requirement is substantive.

 The limitation is reasonable and justifiable. They built two enquiries
into the second requirement. (The balancing enquiry and the
proportionality enquiry)
to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into
account all relevant factors including –
[(a) & (b) are the balancing enquiry]

(a) The nature of the right
(b) The importance of the purpose of the limitation
Applicant
 Nature of the Rights  Purpose of the limitation
 Necessity to balance budget
[(c), (d) & (e) form the proportionality enquiry]

(c) The nature and extent of the limitation;
How much of the right are you limiting?
(d) The relationship between the limitation and its purpose; and
How close is the relationship between the act of the limitation and
the purpose; if it is tenuous nexis then applicant side is heavier, and
if a strong/ close nexis exists then the other side wins.
(e) Less restrictive means to achieve the purpose
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Are there other reasonable alternatives (less restrictive ways) of

achieving your purpose or goals (do it in a way that limit right less)?
If yes, then applicant side wins; if no, then other side wins.
 S3(4) of PAJA – an example of how parliament has incorporated the
limitation clause into the right to procedural fairness (in PAJA)
 S5(4) of PAJA – an example of how parliament has incorporated the
limitation clause into the right to give reasons (in PAJA)
 Premier of Mpumalanga v Executive Committee of the Associations of
Governing Bodies of State-Aided Schools 1999 (2) BCLR 151 (CC)
13. An overview of the main provisions of the Promotion of
Administrative Justice Act 2000 (PAJA).
 Section 1 – definition of admin action - Definition is convoluted

 Section 2 – General limitation clause – allows for certain action to be
exempt from PAJA (not NB)
 Section 3 – Procedural fairness in respect of the public - procedural
fairness judgements***
 Section 4 – Procedural fairness in respect of the public – instances where
rules are made at a high level that does not affect us individually but
publicly.
 Section 5 – Right to reasons – case law shows that we are obliged to give
reasons (requirement 1), and if reasons are given, are they adequate – the
test for adequacy of reasons (requirement 2).
 Section 6 – lawful administrative action – how to test for the lawfulness of
admin action (all the grounds for review, rules against bias, the need not
to take irrelevant factors in to account, the necessity to act in accordance
with the statute, the necessity of acting intra vares the statute)
 Section 7 – procedure for judicial review
 Section 8 - Remedies
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14. An overview of the main provisions of the Promotion of Access to

Information Act 2000. (ASSIGNMENT – NOT TEST)
 S32 has similar history to S33 (it also suspended and didn’t come into
operation until after PAIA was enacted – mirrored the development of
S33)
 The position now ITO S32, is that the State is obliged to supply you with
information requested - except if the state can justify its non-disclosure
with reference to one of the exceptions in the Act.
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15. The rejection of the concept of duality***
- Pg 51/ 52 of KG - article
o Issue that arose after interim constitution was passed (1994):
What is relationship with the common law and the interim constitution?
(Section 24)
 The first case that considered this relationship was the case of:
Container logistics case** - decision of SCA. Reasoned as follows:
We could have a principle of duality, which was that:
 The common law has existed as a stand-alone body of law.
The key question that you ask in taking anyone under
common law review - Is the functionary acting in
accordance with the behest of the statute?
The court goes on to say that when you are bringing a review ITO S24 of the
constitution – the question is rather: is the functionary acting in a way that is
consistent with S24 of the interim constitution?
Therefore, because the enquiry is different we could have the principle of duality,
(meaning that applicants had a choice and could decide to either challenge the
24
decision ITO the common law grounds of review/ ITO S24 of the constitution) He
made this ruling post-1994.
 This matter then went to the Constitutional court in the

Pharmaceutical case, where the court takes a different
approach.
President Mandela signs a law into effect – advisors tell him all regulations are in
place. Please sign the new law into effect. Discover that the rules are not ready.
Previous law is overruled. Suddenly major gap in the law. President goes to court
admitting mistake and asks to reverse the decision. This case gave the court an
opportunity to deal with concept of duality.
After container logistics case, we have the rule than an applicant can challenge
through the common law grounds of review, or alternatively through Section 24.
They had a choice. However, in pharmaceutical manufacturers, the Judge went
against ruling in Container case. There are no two systems of law – there is no
duality in our law. Post 1994 – there is only one system of law regulating
administration of justice, which is S24 of the constitution. Conclusion: there is no
duality in our law.
Support: under the common law we had a weak constitution therefore the common
law had to come up with principles to regulate the exercise of public power.
Common law stepped in. Concerned about ensuring the effective exercise of public
power in a constitutional state. All the legal principles that were developed under
common law were effectively constitutional principles.
Post 1994 – drafters took the underlying core principles of common law distilled it,
and put it into S24. Concludes from this analysis that you can’t have two separate
systems doing the same thing. Therefore, from the Pharmaceutical case onwards, it
is clear that we have only one system of law that regulates and controls our public
powers – S24. Common law is relevant to the extent that it determines/ discusses
S24.
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Any action you bring to check public power must be brought under PAJA and S33.
(Taken from Karty’s Article)
 The Supreme Court of Appeal’s concept of duality

in Commissioner of Customs and Exercise v Container Logistics (Pty) Ltd (1999), the
SCA held that constitutional review was different from judicial review i.t.o the
common law. The court maintained that review of admin action i.t.o the Constitution
focused on whether the admin action was consistent with the Constitution itself.
Review i.t.o the common law was concerned with whether the admin action was in
accordance with the provisions of the empowering statute and the requirements of
natural justice. Judicial review of admin action could occur either i.t.o the common
law or i.t.o the constitutional provisions regarding administrative justice. This meant
that the common-law grounds of review that were not inconsistent with the
Constitution remained intact and operated alongside the constitutional rights
regulating admin justice. The court took the view that common-law grounds of review
were not static and were flexible enough to develop measures to control the exercise
of admin functions when the need arose. The duty to develop the common law in
accordance with the Constitution was contained in s35(3) of the IC 1. On the facts of
the case, the court found that the commissioner failed to apply his mind properly to
the question before him and his decision could thus be set aside under the common
law. As the court had found earlier that the common-law grounds of review existed
independently of the Constitution, it was unnecessary to consider whether there was
a violation of any of the constitutional provisions. This parallel approach towards the
review of admin action would have placed the SCA in a powerful position.
 the CC’s rejection of duality

This approach was rejected by the CC in Pharmaceutical Manufacturers Association
(2000), the CH:
‘The control of public power by courts through judicial review is and always has been
a constitutional matter. Prior to the adoption of the IC this control was exercised by
the courts though the application of common law constitutional principles. Since the
1
Repeated in S39(2) of the final constitution.
26
adoption of the IC 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 judicial review of
public power, they are intertwined and do not constitute separate concepts.’
The new democratic dispensation that commenced in 1994 substituted parliamentary

sovereignty with constitutional supremacy. The detailed Constitutions of 1993 and
1996 incorporated, in greater depth, the constitutional principles that formed the
basis of admin law in the past. These core principles, have been codified, either
directly or indirectly, in the Constitution. The court concluded that 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 its
constitutional control.
16. Control over the exercise of public power by private bodies with
specific reference to section 239 of the Constitution and section 1 of
PAJA.
 Private person exercises public power

 If you are exercising public power/ public function – it is subject to the
constitution and its administrative law principles.
 For example: Balito Municipality employing KPMG to run the process of
appointing their new municipal manager. They are essentially stepping
into the shoes of the municipality – therefore our law is clear on this point.
 Where, if you are exercising public power/ public function it is the nature of
the function that you are performing that determines whether admin law
principles apply and not the nature of the functionary (identity of the
person performing the function). Therefore, if it is generally a public
function, then that is subject to admin law principles.
27
 In the definition section/ In the S1 PAJA, admin action is defined as: a

non-state body performing a public function or exercising a public power,
ITO of an empowering provision (can also be admin action).
PRESCRIBED CASE:
Goodman Gallery v Film and Publication Board 2012 FPAT 8/2012; [2012] JOL
29569 (FPAT) - (SPEAR JUDGEMENT)
- Appeal
o Apply to an appellate body when unsatisfied
o Every public official that takes a decision has to act ITO the enabling
legislation – because it empowers them to act. (Specific Administrative
law)**
o You find out where you appeal a decision to by looking for the enabling
act (the piece of legislation that empowers that official to make the
decision)
o Each one of these laws have regulations that go with it.
o An appeal is a judgment on the merit
QUESTION*** NB*** - With reference to the difference between specific

administrative law and general administrative law, analyze the spear judgement and
illustrate these difference from the text of the judgement.
28
 Spear painting was a depiction of somebody bearing a striking

resemblance to President Zuma and superimposed over that painting was
a penis - flattering.
 The City Press publish it in their online section. President Zuma’s first
inclination is to sue the artist - take him to court.
 There subsequently two complaints launched with the film and publication
board: (an administrative agency that had its own statute which
empowered it to act)
 The painting was pornographic
 Displaying painting would be harmful to children
 The classification committee (the lower body/ body of first instance) – has
to make this decision, by looking at both the painting in the gallery and the
online version, to attach a 16 N (nudity) age restriction to the painting.
 The newspapers and Goodman gallery decide to appeal against that
classification. As a matter of course, one must exhaust their domestic
remedies before approaching the high court. Therefore the matter was
heard before an Administrative Appeal tribunal.
 Their argument was to set aside the classification because it was
unjustified ITO law. And wanted a decision on those merits.
 ISSUE: Was the classification committee legally entitled to impose a

restrictive age classification of 16N?
 Look at the Act and draw out its broad or core principles and lay them out
 The main objective of the Film and Publications Act is
 To protect children.
 To prohibit and criminalize child pornography
 To inform adults (make informed decisions)
 Classification committee imposed a restrictive age classification of 16N on

the online version of the painting.
29
 The jurisdiction of the Film and Publication Board (FPB) is to classify films
and publication, not newspapers (both printed and online). However they
assigned a 16N classification to the online version of a newspaper.
 Their first mistake was to go beyond their jurisdiction
 One of the grounds of review is if you exceed the boundaries of
your power – which is an example of general principle of
administrative law
 Having found that the painting should attract a 16N classification, they
ordered every online publication to attach a 16N label to that publication.
These people didn’t appear before the court of first instance or the
tribunal. Imposed a classification on them, without hearing them or giving
them an opportunity to make representation. ITO PAJA (where general
administrative law principles come from) you have to hear the person
before an administrative decision is made (S3 of PAJA violated) - None of
these people were heard, yet an adverse ruling was made against them.
 ITO the merits of the case – core legal principles are set out:
 Classification process: Every film has to be sent to the FPB.
Publication is only classified if there is a complaint.
 Classifiers have the following 4 areas of discretion to
make the decisions:
1. Refuse classification – entirely banned
2. XX classification – large amount of violence (can possess but can’t distribute
it)
3. X18 classification – pornography (can only be distributed from an adult store)
(The 3 classifications above, are understood to be presumptively harmful
– therefore don’t need proof of harm for because the legislature has
deemed it a presumption.)
4. Age restriction
(Not presumption)
30
 By the process of elimination, they categorized it ITO the 4 th area of

discretion (age restriction-type classification)
 De Rook case defined pornography
 Defined by asking the question: does it advance or promote erotic/
aesthetic sentiments?
 According to the De Rook judgement, this would not
qualify as sexual conduct as it wasn’t meant to appeal to
erotic sentiments as it was making a political statement.
 Did the classification committee properly apply their discretion ITO this
category?
 Section 16(4) (d) of the Act is the only provision that enables a
Classification Committee to assign a restrictive age classification to
publications of this nature. The issue is whether there was a proper and
lawful application of section 16(4) (d) in this matter. Section 16(4)(d)
states:
 If the publication contains material which may be disturbing or
harmful to or age-inappropriate for children, classify that publication,
with reference to the relevant guidelines, by the imposition of
appropriate age restrictions and such other conditions as may be
necessary to protect children in the relevant age categories from
exposure to such materials.
 The classification gave 3 reasons for the 16N classification
The ‘Spear Judgment’.

The case essentially involved a decision by the classification committee, acting in
terms of the FPA, to classify the painting as 16N, was defaced and then sold.
The Goodman Gallery were aggrieved and appealed the decision by the class.com
to the Film and Publication Appeal Tribunal.
Issues:
i) The classification Committee subpoenaing City Press to appear before it and
classifying its published an on-line copies of the painting as 16N was held to be the
31
c.c acting ultra vires since neither the newspaper nor the on-line versions of the
newspaper are subject to the jurisdiction of the Board, and the complaint against City
Press should not have been entertained in terms of the FPB Act. The Board in these
circumstances ought to have conveyed the complaint to the Press Ombudsman for
an investigation into the complaint- who was the only one with power to investigate
City Press.
ii) In relation to the online publishing’s made by other persons not party to the case,
the court held that the c.c had erred in extending the scope of its ruling to persons
who were not before it and who were not given the opportunity to make
representations. This was based on reading s19 of FPA read with s3 of PAJA that
affords affected parties right to be heard in relation to decisions adversely affecting
their rights, which a restriction of 16N would clearly do(freedom of expression
infringed). Publishers were not party to c.c hearings or processes, no opportunity to
be heard and The ruling of the cc, to the extent that it sought to classify electronic
images of the painting appearing on websites other than the Goodman Gallery
website, is set aside.
Thus: the focus of appeal is solely on the picture as it appeared in the Goodman
Gallery.
Merits of case:
i) Held that the painting did not amount to pornography. In de Reuck’s case the CC
held that to be pornographic the publication must be of an erotic nature or of erotic
sentiments. The painting is the case was one of political sentiments and was not of
an erotic nature. Thus not Porn.
ii) The cc as an administrative body was obliged to give reasons for its decision. Its
reasons for the classification were to:
a) Protect sensitive adults
b) Protect the dignity of African Males, and
c) protect children against offensive and inappropriate material.
It is on the above grounds that the problem arises.
The cc chose to solely to rely on s16(4)(d) of the FPA. It is thus this section which
acts as the enabling section in that the cc relied on this provision to enforce the
classification.
32
The jurisdictional facts of this section however is for the protection of children against
premature exposure to harmful material and nothing else.
The Tribunal therefore found that the reasons of protecting the dignity of African
Males and sensitive adults went beyond the power conferred by s16(4)(d) and held
that the cc had acted unlawfully in this respect.
The council for the FPBoard then stated that even if the other 2 grounds are
excluded, the classification be made to stand on the basis of protecting children.
The main issue therefore turned to whether the publication was harmful to children.
Before any publication is assigned a restrictive age classification in terms of section
16(4)(d) of the FPB Act, it is necessary that the Classification Committee form the
view and show that the publication contains material that may be disturbing, harmful,
or age-inappropriate to children. Thus that there is a presumption of harm IRO the
publication which would need to be proved by the cc. The court rejected the
proposition that nudity creates a presumption of harm to children in that many of the
words finest art pieces would then need to be classified as it contained nudity.
Further, if the cc wanted to show presumption of harm then evidence would need to
be provided in support of this. In this case there was no evidence supporting the
notion of presumed harm meaning that the painting was a work of artistic value
playing on the relationship between politics and power- and based on its artistic
value was held to not be harmful to children ITO s16(4)(d).
‘In these circumstances there were no reasonable grounds for the Classification
Committee to come to the conclusion that the unrestricted painting would disturb,
harm, or be age-inappropriate to children. Similarly, there is no basis for this Tribunal
to conclude that the nudity depicted in the painting would probably be disturbing,
harmful, or age-inappropriate to children.’
Painting sold, and images taken down from Gallery Website, thus no need to
reassess the painting.
Ordered restriction of 16N be set aside IRO the painting and all electronic and other
copies.
33
17. Administrative actions that vary from high policy decisions to

specific quasi-judicial decisions. The need for discretionary power in
a modern state and the necessity to ensure that the exercise of
discretion is properly exercised.
Here look at Hoexter’s article, where limited power and accountability are discussed.
The doctrine of accountability supports the idea that administrators must give
reasons for their decisions, and if their decisions are inconsistent then there must be
some sanctions. Hoexter supports the view that admin law ought to ‘facilitate
creative decision making in the public interest’ but at the same time ‘permit the
effective assertion of citizens’ rights and limit any abuses of public power’.
34
18. The transformation of Administrative Law from a dismal science to

‘something very lively’.
The state has to have some discretionary power, as it can’t just rule by norms.
In admin law we try to structure the law, the discretion we allow the officials to have
is very limited. Before a decision is made by a functionary, certain criteria must be
adhered to.
 Think of the hole in the donut theory by Dworkin.
19. The proper role of administrative justice rights in our society.
- Admin justice has a broad role in our society, it involves a variety of stuff.
- S33 deals with ‘admin action’
- PAJA also deals with ‘admin action’
- You will not be able to use PAJA except if what you dealing with qualifies as
‘admin action’. ‘Admin action’ is considered as the gatekeeper.
20. Justification for a developed system of administrative justice in a

constitutional democracy.
21. An overview of the main organs of a constitutional state and the role
played by the administration.
22. The full ambit and extent of matters falling within the purview of
Administrative Law.
23. The essence of the constitutional state and the fundamental notion of
limited power and accountability.
35
24. The democratic system of public administration.
25. The austerity of ‘snapshot democracy v the benefits of response

governance”
26. The constitutionalisation of Administrative Justice.
27. Impact of the inclusion of Administrative Justice in the Bill of Rights.
28. The relationship between administrative justice rights and other

constitutional rights.
29. The aim of achieving a prospective system of proper and

accountable administrative law.
30. Ensuring that a balanced and proper system of administrative justice

that ensures both accountable and effective governance.
Part 2.
The Concept of Legality.
Introduction to the concept of legality
1. Section 1(c) of the Constitution states that the Republic of South Africa is one,
sovereign, democratic state founded amongst other values on the supremacy
of the Constitution and the rule of law. Section 1(d), commits government to
democracy and to accountability, responsiveness and openness.
- Genesis of development is S1 of constitution

o Government’s action must be in accordance with the rule of law and
the principle of legality.
36
- Courts have established that the principle of legality incorporates two

principles:
o Every functionary must act within his or her power (intra vares his/her
power) nor must they exceed their power.
o The functionary must act rationally – this is a derivative of that test.
Judges look for whether there is a rational connection between what
you are doing/ decision made and what you are supposed to achieve
ITO the statute or constitution
 Given power to achieve certain objectives and the rationality
enquiry seeks to ensure that the power given is exercised in a
way that is rational and not arbitrary
From the beginning of Constitutional litigation it became apparent that a

distinction is needed between the scrutiny of AA and EA or LA.
The question then arises as to what level of scrutiny should acts not falling
within AA be subjected to?
The concept of legality has thus been stated as being implicit in the ROL and
provides that any person or entity exercising a public power irrespective of the
description of that power must act in accordance with the principle of legality.
2. The Court in President of the RSA v SARFU 2 (“SARFU”) concluded that the
power to appoint a commission of inquiry in terms of section 84(2)(f) of the
Constitution, was not administrative action. The court analysed the various
subsections of section 84(2). Section 84(2)(a) to (d) dealt specifically with
decisions relating to the legislative process. Section 84(2)(e) relates to
constitutional obligations of the President. The Court went on to hold that the
other powers in section 84(2), including the pardon power, are closely related
to policy, and that none are concerned with the implementation of legislation.
The court concluded that most of these decisions would not suitably be
subject to the right of administrative justice in section 33 of the Constitution.
2
2000 1 SA 1 (CC).
37
- President Mandela appointed commissioner of enquiry took president to court

challenging his decision. More to do with policy than the implementation of
policy.
3. In Pharmaceutical Manufacturers Association of SA & another: In re Ex parte

President of the Republic of South Africa 2000 (2) SA 674 (CC) (2000 (3)
BCLR 241) para 84-85 the following is stated:
‘In S v Makwanyane Ackermann J characterised the new constitutional order
in the following terms:
“We have moved from a past characterised by much which was arbitrary and
unequal in the operation of the law to a present and a future in a constitutional
State where State action must be such that it is capable of being analysed
and justified rationally. The idea of the constitutional State presupposes a
system whose operation can be rationally tested against or in terms of the
law. Arbitrariness, by its very nature, is dissonant with these core concepts of
our new constitutional order.”
In this case President Mandela as he then was, was told that the regulations
of the new Pharmaceutical Act were ready and that he could therefore sign off
on the Act- resulting in the Act coming into force and repealing the old Act.
It turned out the regulations were not ready resulting in a lacuna in law being
created.
President realised mistake and took the matter to court to have decision set
aside.
Court supported the notion that decision must not be arbitrary or irrational in
that the power exercised must be rationally related to the purpose of such an
exercise.
Court held that the decision to set sign off on the Act without the regulations
being in place was irrational and decision set aside on the principle of legality
and rationality.
38
Similarly, in Prinsloo v Van der Linde and Another this Court held that when
Parliament enacts legislation that differentiates between groups or individuals
it is required to act in the rational manner:
It is a requirement of the rule of law that the exercise of public power by the
Executive and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power was given, otherwise
they are in effect arbitrary and inconsistent with this requirement. It follows
that in order to pass constitutional scrutiny the exercise of public power by the
Executive and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards demanded by our Constitution for
such action.’
4. In Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) the
Constitutional Court, referring to Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) (1998
(12) BCLR 1458) para 58, stated the following (para 49):
‘The exercise of public power must therefore comply with the
Constitution, which is the supreme law, and the doctrine of legality,
which is part of that law. The doctrine of legality, which is an incident of
the rule of law, is one of the constitutional controls through which the
exercise of public power is regulated by the Constitution. It entails that
both the Legislature and the Executive “are constrained by the principle
that they may exercise no power and perform no function beyond that
conferred upon them by law”. In this sense the Constitution entrenches
the principle of legality and provides the foundation for the control of
public power
- The Fedsure case ultimately explained that both the executive at the highest
level and the legislature are bound by the principle of legality.
5. In Masetlha v President of the RSA, para 81, in dealing with the power of the
President to dismiss the head of the National Intelligence Agency and
implicitly with the power to appoint, the Constitutional Court said:
39
‘It is therefore clear that the exercise of the power to dismiss by the
President is constrained by the principle of legality, which is implicit in
our constitutional ordering. Firstly, the President must act within the law
and in a manner consistent with the Constitution. He or she therefore
must not misconstrue the power conferred. Secondly, the decision
must be rationally related to the purpose for which the power was
conferred. If not, the exercise of the power would, in effect, be arbitrary
and at odds with the rule of law.’
Issues:
 President said he lost confidence in Masetlha – and can’t have national

security head or advisor that he doesn’t have confidence in. This must be
rational where he was appointed at the president’s discretion.
 Between minority and majority – should the president have acted in a
procedurally fair fashion and said to Masetlha: the relationship of trust has
broken down between us, and ask his response.
o The applicant was saying that the right to procedural fairness was now
being incorporated into the concept of legality as an additional
requirement.
o In order to comply with the principle of legality, you had to show that
you acted procedurally fairly.
 Majority took the view that doctrine of legality does not demand or require, as
far as executive action is concerned, that you act procedurally fairly. The
reason for the majority view, was because if you insist on procedural fairness
also being incorporated into the doctrine of legality, then you would hamper or
impede or place too many constraints on the president’s exercise of executive
action.
 Minority dissented, arguing that the concept of procedural fairness is an
inherently flexible concept – and that procedural fairness should be part of the
principle of legality.
M was the national security Adviser. He and the President had a ‘fall-out’, and as a
result M’s contract of employment was altered unilaterally by the P on the basis that
the working relationship and trust between them had been irretrievably broken down.
40
-M argued that:
i) President had engaged in AA when deciding to later his contract of
employment and was thus bound to act procedurally fairly ITO PAJA.
The CC held that the decision was not 1 which was Administrative in nature in that
the president was acting in his authority derived directly from the Constitution and
such action was not subject to s33 of PAJA. Thus the principle of legality applied.
ii) That even if it was not AA, the president was required under the principle of
legality required to act proc.fairly in giving M an opportunity to defend his case/make
reps.
6. Pharmaceutical Manufacturers – The CC held that it was a requirement of the

rule of law that the exercise of public power by the executive must be rational
and this required that the decisions must be rationally related to the purpose
for which the power is granted.
7. Masetlha v President - Importantly, the majority held that the duty to act
procedurally fairly was not a requirement with which the exercise of executive
power had to comply. The rationale was that the President, in the exercise of
this executive authority, should not be constrained beyond the principle of
legality and rationality, as it would impose unjustifiable constraints on the
exercise of executive power. As the relationship of trust had broken down
between the President and the applicant – one of his key security advisors – it
was, in the opinion of the court, not irrational for him to terminate the latter’s
employment
8. In Masetlha, Ngcobo J3 in a dissent – consistent with his commitment to

participatory democracy4 and to procedural fairness generally – required the
3
Masetlha v President of the RSA 2008 1 BCLR 1 (CC) para 105.
4
Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399
(CC).
41
President to consult with Mr Masetlha on the central issue regarding the

amendment of his contract. According to Ngcobo J, when exercising public
power, the executive and functionaries have a duty to act fairly. He traces the
source of the duty to the rule of law and the requirement not to act arbitrarily.
According to Ngcobo J, the inherent flexibility of procedural fairness will allow
it to adapt to the specific circumstances, and balance the demands of the
executive for expeditious action, and the right of Mr Masetlha to be treated
fairly. According to Ngcobo J, the principle of rationality has both substantive
and procedural components. The decision must be rationally related to the
stated objectives, and the decision must be made in a procedurally fair
fashion.5 Ngcobo J points out that it would be incongruent with the basic
premises of our Constitution, to permit the procedurally unfair exercise of
public power to be unreviewable
9. In Minister of Justice and Constitutional Development v Chonco (“Chonco”),

the court held that the exercise of executive power must be rational, be made
in good faith, and accord with the principle of legality. The Court held that the
power to pardon is the exercise of a public power, and one which vests in the
President. The court found that it was unacceptable that it had taken longer
than six months to finalise the pardon applications.
A number of IFP members who had committed crimes with political objectives but
did not apply to the TRC - asked to be pardoned by President Mbheki. The
president’s office does not deal with this request – but even though it was an
executive action the president needed to make a decision.
 Ryan Albert case** articles by KG (pardon article)
- IFP members had been white right wing who had committed political offences
and convicted thereof.
5
. Para 179-180
42
- Their leaders told them not to apply for amnesty because it was a political
process and they weren’t going to get justice. The amnesty process ran its
course and they were still in jail. In terms of the constitution, President Mbheki
had the power to pardon them and they wanted to be pardoned.
- President Mbheki set ups up an all-party-parliamentary committee and their
task was to advise the president whether he should pardon these people.
- When he goes to parliament to address them on the issue – he said he was
continuing the work of nation building and national reconciliation by giving
them the opportunity to apply for amnesty – and the terms of reference to this
committee is very similar to the amnesty’s committee’s terms of reference
(deciding whether offences committed where connecting to a political
objective in the past)
- The committee is set up and then allows for applications to be made to them,
to which they would make their representations to the president – who would
have the final decision.
- Hereafter, the victims were heard (who had been affected as a result of the
actions of these people) – as this was part of national reconciliation. It was
also the opinion of the committee that it wasn’t necessary or part of the
mandate of the president to hear accounts of victims.
- Make recommendation to the President with people who have met the
requirements, and ask for amnesty to be granted.
- Whilst this is occurring, an application is brought interdicting the president

from granting amnesty on the basis that a decision to not hear victims was
irrational.
- Therefore the question came before the CC:

o What it irrational to not hear the victims? The court refers to its
previous judgement about the obligation to act rationally and it looks at
the following:
 What was the objective of the process? To engage in unfinished
process of TRC and to foster nation building/ nation
reconciliation
43
o Key judgements of the TRC process was the Azapo case – what you
were essentially telling victims is that you would indemnify these
criminals (they would have civil and criminal indemnity – could not be
sued). This amounts to taking away the rights of a victim. An essential
part of this process was to acknowledge what the victims went through
and therefore needed to be heard and unburden grief to the nation and
acknowledge of what they went through. Captain Benzine was a
policeman applying for amnesty as he tortured activists. Yengeni
wanted captain to admit it.
 Whoever made decision not to hear victims, didn’t fully
appreciate the process
- This matter goes to CC and counsel for the president seek to argue that this
process was different from TRC process (because these people were
convicted anyway)
- In the TRC process it was unnecessary to be convicted and simply had to
come for.
- Because there were trials already held in this instance, the victims were
already in some way heard, making it unnecessary to hear them again. This
argument was rejected on the basis that in a criminal prosecution your
objective is to prove a case beyond reasonable doubt.
- The court held that criminal proceedings are different from the amnesty
process because it was about reconciliation. The amnesty process was more
about truth-telling to find out what happened to the victims.
- Once president mbheki had said that what he was doing was setting up this
process to advance nation building and reconciliation – mean that it needed
to involve the victims.
- Court held that based on purpose and objective of committee - It was
irrational to exclude victims from the process - they therefore set aside that
recommendation and decision.
44
President Mbeki as he then was, appoints a special amnesty committee to ‘continue

the work of the TRC in granting amnesty to political prisoners so as to: a) Foster
national unity and national reconciliation, and b) to continue the work of the TRC.
By stating that the committee would continue the work of the TRC the president was
held to have essentially tied his process to that of the TRC process, which was one
of truth and reconciliation as its main objectives.
The president stated that the committee was to make representations for those who
applied for pardons and that the recommendations would be considered by the
president who would have the final say in granting/denying pardons.
An application was then brought by the victims of those applying for pardons, who
asked to be heard or make representations in the process of whether or not pardons
should be granted.
The committee responded by saying they were under no obligation to hear the
victims.
The committee compiles a list of recommendations which it passes onto the
president.
The victims then apply to interdict the president from making any decisions without
1st hearing them.
The court a quo found that the presidents conduct was 1 of AA and that he was
mandated to act procedurally fair.
The CC heard the matter and found that the conduct of the president did not amount
to AA, as the power of pardon is a power derived directly from the Constitution.ito s
84(2)(j).
The court then had to assess whether the president was required to hear the victims
in terms of the principle of legality.
In assessing the concept of legality, Ncgobo held that the test is that of rationality
which requires that there must be a rational link between the exercise of the
power(means chosen) and the final objective sought to be achieved.
Held that it is not for the court to decide whether the means chosen are the most
appropriate means/methods possible, or that there was a better way to achieve the
objective, simply that the means are rationally connected to the objective.
45
In the case the objective of the commission was to ‘carry on the work of the TRC’
and to create national unity and reconciliation.
The CC unanimously held that the participation of the victims was crucial to the
achievement of the objectives of the TRC, namely nation building and reconciliation.
The CC therefore does not expressly state that procedural fairness is a component
or requirement of legality but states that legality can be used to criticise a process
where the process used is not rationally connected to the objective sought. Further
the court held that such scrutiny will only be applicable in certain cases.
Thus the position in Masethla is still the law in that procedural fairness is not an
aspect of legality, but as noted in Albutts, the purpose of the rule of law to which
legality is a part, ensure govt do not act arbitrarily or irrationally.
Simelane case *** (DA v President)

- Demonstrates that there are constraints on the exercise of power (don’t
blame court for your actions)
- NDPP is a senior and key appointment as they decide whether to prosecute

or not. Office must be independent and free of any perception that it is
influenced by politics.
- Mbheki is unhappy that NDPP is investigating Police commissioner Selebi.

The president has certain legitimate concern. But these concerns result in a
number of people acting unconstitutionally including the Minister of Justice.
- They suspend Piccoli (for corrupt practices) but ITO the law there had to be a
hearing before a commission of enquiry – “Ginwala commission”.
- Set up commission for the purpose of enquiry as to whether Vusi Piccoli is fit
and proper person to continue being an NDPP.
o The commission reported that Piccoli had done nothing to justify the
dismissal
46
o Simelane was not honest and directly impugned his authority. They
questioned Simelane’s intent.
- Mbheki is recalled. Mohlante is president for the rest of Mbheki’s term. During
this time, he refers the complaint against Simelane to the Public service
commission – who recommends that Simelane (who was then the Director
General of justice) be charged with misconduct.
- Elections happen and Zuma becomes president. Jeff Gadebe, Minister of

Justice at the time, then asks the public services commission to reconsider
Simelane’s case
- Then appoints him as one of the deputy directors and a few weeks later, they
appoint him the NDPP.
- DA and other parties challenged the decision
- What purpose is this appointment meant to serve

o S179 of the constitution
 Relates that the NDPP is appointed by the president and
national legislation must indicate the criteria for qualities an
NDPP must possess. This legislation was the National
Prosecution Authorities Act – which says that the NDPP must
be a fit and proper person.
- Question before CC
o Was it rational for the president to appoint Simelane as national
director of public prosecution (given the requirements of constitution
and legislation) when the Genwala commission enquiry directly
questioned his integrity
- SCA found that the decision of the president was irrational – president was
appointing ITO S179 (this was the exercise of a constitutional power – which
was therefore executive action)
47
- The president’s lawyer’s made 2 important arguments
o Firstly, they argued that the SCA was ostensibly applying the rationality
test, but they were actually they were applying the reasonableness
test. (applied wrong test where reasonableness is a more demanding
test) As far as the review of executive action is concerned, the test to
be applied is one of rationality.
o Secondly, the constitutional discretion given to the president (to

appoint the NDPP) was a subjective discretion – given by the
constitution and the act. This meant that this test as to whether
Simelane was a fit and proper person, having regard to
conscientiousness and integrity – was a question for the president to
answer.
 Not for court to decide objectively – but rather for president to
decide subjectively whether Simelane was a fit and proper
person.
o Other argument - This confers objective discretion on the president –

demonstrate to the satisfaction of the court, that the decision is rational
and that this person is fit and proper.
o The enquiry is who makes the decision – is it solely what the president
believes? Or should it be objectively evaluated?
 It is concluded that it is an objective discretion, and provided a
number of factors:
 This is a constitutional appointment – therefore the
person must be independent. It seemed incongruent to
say that they must be independent, only if the president
thinks so. Independence suggest objective criteria.
 The constitution say that the President must appoint the
NDPP and leaves it to an act of parliament to determine
the criteria. The court again relates that if it is a
48
subjective discretion, that it would be for the president to

determine – but where it is left to an act of parliament it is
objective discretion.
 There is a set process to remove NDPP – where there
must be a hearing. The court says that this stipulated
procedure is incongruent with the idea of subjective
discretion by the president – but rather objective.
Looking at the constitution and the statute/ legislation
textually, it does not say if the President is satisfied. Not
subjective but rather objective)
 The court therefore concludes for those reasons that it is an
objective and not a subjective discretion.
o According to first argument where the SCA and other courts had
applied the reasonableness standard – as opposed to the rationality
standard; the court has to distinguish between rationality and
reasonableness
o What the court was concerned with ITO legality, was the test of
rationality.
 When testing executive action the test is rationality and not
reasonableness
 He does not distinguish between the two, but maintains that
rationality is that as long as there is a rational link between the
decision and the purpose. Show that decision is rationally
connected to the objective.
 As far as reasonableness enquiry goes in PAJA – Bato star is
quoted: is this a decision which a reasonable authority could
reach? Government must demonstrate that reasons for taking
this decision are better than your reasons for not taking the
decision - Not unreasonable if you can provide reasons that
justify the conclusion.
49
 Therefore the court concludes that the correct test is one of

rationality, where rationality applies to both the process and to
the decision itself.
 Main argument
o President Zuma failed to take relevant considerations into account and
appointed Simelane, despite Genwala commission findings.
 The court suggested a three-prong test to decide whether or not relevant

considerations were ignored and whether that amounted to irrationality.
1) Were the relevant facts ignored?

2) Is the failure to consider the relevant fact (the means/ method
adopted) rationally connected to the purposes of the act (or the
purpose for which the power is conferred)?
 Achieving the purpose of appointing a fit and proper person.

 In the process of President Zuma appointing Simelane to that
post, he ignores the Ginwala commission enquiry’s findings that
Simelane lacked integrity.
 The court needed to hear from government why ignoring the
commission’s findings is somehow rationally related to
achieving the objective.
 The government unsuccessfully argued the following:
o Ginwala was not a court of law
o Wasn’t about Simelane, it was about Piccoli
o Public service commission did not hear him – no
disciplinary hearings which found him guilty
3) Does it taint the entire process with irrationality?
 The court found the following:
50
o The President’s decision to appoint Simelane was irrational and

therefore a violation of the principles of legality. Court accordingly set
aside the decision. New NDPP appointed.
The case involved an application brought by the DA to set aside the decision of the
President in appointing Simelani as the NDPP on the basis that the process for
appointment and, consequently, the appointment itself was irrational and invalid.
The saga began when the president suspended the then NDPP Vusi Pikoli from the
position and then set up the Ginwala Commission to investigate his suitability to hold
office.
Mr Simelane presented the government’s submissions to, and gave evidence under
oath before, the Ginwala Commission. The report of the Ginwala Commission
criticised with some severity the approach by Mr Simelane in making government’s
submissions as well as the credibility of his evidence. The then Minister for Justice
and Constitutional Development, Mr Enver Surty, requested the Public Service
Commission to investigate Mr Simelane’s conduct during the Ginwala Commission.
The Public Service Commission, in a detailed report, recommended disciplinary
proceedings against Mr Simelane arising out of his conduct and evidence before the
Ginwala Commission.
The Minister rejected the recommendations of the Public Service Commission.

The President appointed Mr Simelane as the National Director two days after the
Minister rejected the Public Service Commission recommendations.
The appointment was made by the President as head of the National Executive in
terms of the Constitution s 179(a), which requires national legislation to ensure that
the National Director is appropriately qualified. That national legislation is the Act
and provides that the National Director must be a person fit and proper for the job.
SCA
The Supreme Court of Appeal considered that the President erred in four respects
and that these mistakes rendered the process by which the decision to appoint Mr
Simelane had been taken and, consequently, the decision itself irrational and invalid.
51
The first was that, according to the President, he had firm views about Mr Simelane
being the right person to be appointed the National Director even before he had
considered whether Mr Simelane was a fit and proper person for the job.
Second, the President incorrectly reasoned that the absence of evidence
contradicting the idea that Mr Simelane was a fit and proper person for appointment
justified the conclusion that he was indeed a fit and proper person. The correct
approach, according to the Supreme Court of Appeal, was for the President to
determine positively whether Mr Simelane was a fit and proper person and apply his
mind to the facts. This the President did not do. Held that the discretion on the
President was an objective one based on the surrounding facts and circumstances.
Third, the President disregarded the criticisms of Mr Simelane made by the Ginwala
Commission, on the tenuous basis that the Commission had not been appointed to
investigate Mr Simelane, but Mr Pikoli.
Last, the recommendations of the Public Service Commission that the Ginwala
Commission’s criticisms merited a disciplinary enquiry against Mr Simelane were too
lightly brushed aside.
The Supreme Court of Appeal was of the view that the fact that the Ginwala
Commission’s comments were not taken into account was in itself enough to set
aside the appointment as irrational as the means of appointing Simelani were not
rationally connected to the objectives, ie; appointing a fit and proper person. Thus
irrational ito legality.
Constitutional Court
Minister alleged that the SCA had applied the test of reasonableness and not
rationality ITO assessing executive action, and ITO rationality the appointment can
only be set aside should it be proven Simelani was not a fit and proper person. Thus
SCA made an unauthorised intrusion into the executives powers. Reliance is also
placed on the separation of powers requiring a more deferential approach.
It is contended that the President has a wide, subjective discretion in making the
appointment and that it should be understood that the National Director is a political
appointee who has a substantial policy-related role as distinct from other Directors of
Public Prosecutions.
52
-The Democratic Alliance supports the reasoning and conclusion of the Supreme
Court of Appeal concerning rationality. It contends in addition that the evidence
showed that Mr Simelane was not a fit and proper person to be appointed National
Director, which it argues is an objective jurisdictional fact antecedent to appointment,
and that the President had an ulterior purpose in appointing him. The Minister and
Mr Simelane take issue with these submissions too.
Issues:
Common cause that action of the President was executive action, not admin action,
thus the principle of legality and test of rationality applies.
a) whether the requirement that the National Director must be a fit and proper
person to be appointed to that position is an objective jurisdictional fact antecedent
to appointment.
Yacoob rejects notion that appointment of NDPP is a political appointee. Relying on
CC case of Legal Soldier, which states the NDPP is a non-political chief executive
appointed by President.
Agrees with SCA that discretion is objective.

-The Constitution read with legis requires a certain standard of qualification- fit and
proper-thus not all at discretion of President.
-the Act itself does not say that the candidate for appointment as National Director
should be fit and proper “in the President’s view” but rather section “is couched in
imperative terms. The appointee ‘must’ be a fit and proper person.
-Further, fit and proper involves a value judgment, which does not imply the
judgment to be within sole discretion of the President.
- Further support of objectivity is the constitutional provision that the national
prosecuting authority must perform its functions without fear, favour or prejudice- this
must be shown by jurisdictional facts, and presidents discretion will not render such
a requirement present.
- the high importance of the position of NDPP, although not judicial in character, the
determination of prosecution policy, the decision whether or not to prosecute and the
duty to ensure that prosecution policy is complied with are fundamental to our
democracy. Thus appointment cannot be political or partisan, but must be closely
aligned to judicial role and aimed a criminal justice.
53
b) The requirements of rationality concerned in particular with—

Conceded that exec must act within its conferred power and that its means must be
rationally connected to objectives sought to be achieved.
i. the distinction between reasonableness and rationality and the relationship
between means and ends;
Notes importance of keeping reasonableness and rationality separate:
ITO reasonableness- relates to the decision itself. Cites Bato Star case as authority:
test being that an administrative decision will be reviewable if it is one that a
reasonable decision-maker could not reach.
ITO rationality- Cites Albutts case, that rationality requires that the method,
objectiviely speaking, be rationally related to the objective sought. Not for courts to
interfere on the basis that a more appropriate measure was available or that they do
not like it. If rationally related then lawful and thus constitutional.
Thus he states test is the rational connection between means and ends.
ii. whether the process as well as the ultimate decision must be rational;
Finds that based on the proposition laid down in Albutts, following SARFU and Hugo,
both the final decision and the process must be rational. Reasons that it is illogical to
require the president to conduct a rational procedure and rational decision when
acting as head of state and not require the same when acting as head of nat. exec.
More importantly he states that the test being rational connection between means
and ends inevitably involves a scrutiny of both process and the actual decision.
Held the decision of the President as Head of the National Executive can be
successfully challenged only if a step in the process (any step) bears no rational
relation to the purpose for which the power is conferred and the absence of this
connection colours the process as a whole and hence the ultimate decision with
irrationality.
Thus we must look at the process as a whole and determine whether the steps in the
process were rationally related to the end sought to be achieved and, if not, whether
the absence of a connection between a particular step (part of the means) is so
unrelated to the end as to taint the whole process with irrationality.
54
iii. the consequences for rationality if relevant factors are ignored;

Held that if in the circumstances of a case, there is a failure to take into account
relevant material that failure would constitute part of the means to achieve the
purpose for which the power was conferred. And if that failure had an impact on the
rationality of the entire process, then the final decision may be rendered irrational
and invalid by the irrationality of the process as a whole.
NB: 3 stage enquiry IRO an executive decision where relevant factors are ignored.
a) whether the factors ignored are relevant;
b) whether the failure to consider the material concerned (the means) is
rationally related to the purpose for which the power was conferred; and if not
then
c) whether ignoring relevant facts is of a kind that colours the entire process
with irrationality and thus renders the final decision irrational.
Thus: A decision to ignore relevant material that does not render the final decision
irrational is of no consequence to the validity of the executive decision. It also
follows that if the failure to take into account relevant material is inconsistent with the
purpose for which the power was conferred, there can be no rational relationship
between the means employed and the purpose.
iv. rationality and the separation of powers.

Notes that executive decisions are only subject to rationality and cannot be set aside
because they are procedurally unfair or unreasonable. This is to protect SOP.
States that rationality requires the lowest possible threshold for the validity of
executive decisions and that the same standard of rationality ITO AA will apply to
executive decisions because there cannot be a double standard. Thus SOP has
nothing to do with whether a decision is rational.
CRUX
c) whether the decision of the President to appoint Mr Simelane was rational and, in
particular, whether the President’s failure to take into account the finding in relation
to and evidence of Mr Simelane in the Ginwala Commission was rationally related to
the purpose for which the power to appoint a National Director was conferred.
55
i) Did the President act rationally?

President ignored Ginwala commission findings as well as the findings of the Public
Service Commission and acted solely on Simelani’s CV, the recommendations of the
Minister and the president’s own personal knowledge of Simelani.
ii) Purpose for which power to appoint NDPP was given to president.
- to ensure that the person appointed as National Director is sufficiently
conscientious and has the integrity required to be entrusted with the responsibilities
of the office.
- obvious that dishonesty is inconsistent with the hallmarks of conscientiousness and
integrity that are essential prerequisites to the proper execution of the responsibilities
of a National Director.
iii) The Ginwala Commission findings
- essentially stated that Simelani acted dishonestly, contradictory and out of personal
interest. Brought allegations with no foundation against Pikoli and acted
unprofessionally in his conduct.
- Court Held that these findings were cause for great concern and any failure to take
into account these comments, or any decision to ignore them and to proceed with Mr
Simelane’s appointment without more, would not be rationally related to the purpose
of the power, that is, to appoint a person with sufficient conscientiousness and
credibility.
-The evidence by the GC and PSC reflect on Mr Simelane’s credibility and
conscientiousness. They are material and failure by any person to consider these
findings in appointing Simelani would be prima facie irrational- not related to purpose
of appointing a sufficiently conscientious and credible person to resist interference
with his office. Minister was aware of reports or ought to have been aware and
decided to ignore it.
The reasons why the Minister decided to ignore the criticisms by the Ginwala
Commission, the evidence before the Ginwala Commission as well as the
recommendations of the Public Service Commission and to advise the President to
ignore these matters in the process of making the appointment:
56
i) S had not been given opportunity to be heard in PSC.- held this was no
reason for not instituting disciplinary proceedings particularly because Mr Simelane
had been heard by the Minister.
ii) That the submissions made by S’s legal reps persuaded the Minister not to
institute a disciplinary enquiry. Held- that the letter by S’s legal reps were legal in
nature and by its nature conceded that S’s integrity had honesty had been scathed
by the GC and PSC findings. The Ministers failure to institute a hearing is irrational
on this basis.
iii) that the Commission was not investigating Mr Simelane but Mr Pikoli. This
reason is also unacceptable because it implies that dishonesty on the part of a
senior state official before a commission of enquiry, where the enquiry is not directly
about the person concerned, can be disregarded.
iv) the Ginwala Commission is not a court. Held- This is an irrelevant
consideration. It does not matter for the purposes of evaluation of credibility whether
a person is dishonest and devious to a court, to a commission of enquiry, or to
anyone else for that matter. Dishonesty is dishonesty wherever it occurs. And it is
much worse when the person who had been dishonest is a senior government
employee who gave evidence under oath.
Concluded: the failure to take these indications into account were not rationally
related to the purpose for which the power to appoint a fit and proper person as a
National Director were given. The difficulties concerning Mr Simelane’s evidence that
appear from the records of the Ginwala Commission were and remain highly relevant
to Mr Simelane’s credibility, honesty, integrity and conscientiousness. The Minister’s
advice to the President to ignore these matters and to appoint Mr Simelane without
more was unfortunate. The material was relevant. The President’s decision to
ignore it was of a kind that coloured the rationality of the entire process, and thus
rendered the ultimate decision irrational.
ITO presidents submission that GC was to investigate P and not S, held this holds
no water and thus there is no rational relationship between ignoring the findings of
the Ginwala Commission without more and the purpose for which the power had
been given.
Held to be unnecessary to consider d below.
57
d)If the decision is found to be rational in this sense then we must evaluate whether
—
i. the evidence shows that Mr Simelane is a fit and proper person to be
appointed the National Director; and
ii. the President had an ulterior purpose in making the appointment.
Order: S’s appointment regarded as invalid and unlawful and held that all decisions
made by S while in office are valid and can only be challenged on a ground other
than that to which his appointment has been rendered invalid.
Reading:
58
- Karthy Govender ‘Judicial Review of the Pardon Power in Section 84(2)(J) of

the Constitution of the Republic of South Africa, 1996’, 2012(3) Stellenbosch
Law Review 490.
- C Hoexter ‘ The Rule of Law and the Principle of Legality in South African
Administrative Law Today’ in M Carnelley & S Hoctor (eds) Law, Order and
Liberty: Essays in Honour of Tony Mathews (2011) 55.
- Karthy Govender ‘The Risk of taking Risky decisions - Democratic Alliance v
President of the Republic of South Africa . (the Simelane case).
Constitutional Court Review (2014)
1. Albutt v Centre for the Study of Violence and Reconciliation 2010 5 BCLR 391
(CC).
2. Democratic Alliance v President of the Republic of South Africa 2012 (12)
BCLR 1297 (CC).
3. Judicial Service Commission v Cape Bar Council [2012] ZASCA 115 (14
September 2012).
59
 Judges applied to the JSC for appointment and they appointed only 1 of
the candidates and there were other vacancies and other competent
candidates who were not appointed – this was challenged by the Cape
Bar Council.
 One of the arguments was that the judicial services commission should
give a reason for its decision. The JSC sought to argue that the reason for
the decision was that none of the candidates had got a majority of votes.
 The appointment of judges is not admin action but because the process
involves the exercise of public power, the JSE has to act rationally. The
court ruled that in order to act rationally – you should have reason for your
decision. This case is authority for the position that even if it is executive
action, there must be reasons for that decision. Principal of rationality
requires some justification.
 Saying that you got less than 13 votes – is a reflection on the outcome. A
conclusion – have to indicate why you reached this conclusion and didn’t
vote for this candidate.
Note: the decision to appoint a judge is made by the Judicial Service Commission,
which is an action falling under an express exclusion ITO PAJA- thus the principle of
legality and rationality apply.
Facts: There were 3 positions available for judges in the Western Cape Provincial
District. The JSC made one appointment, being a member of colour, and did not full
the other 2 positions.
The Cape Bar Council then brought an application seeking an order to set aside the
decision of the JSC on 2 grounds:
1) That it is a legal requirement that the President of the SCA, or in his
absence, the Deputy president be present when interviews are conducted and a
decision is made in the appointment of a judge.
In this case, when the decisions to appoint had been made, neither the President or
Deputy President of the SCA were present.
2) the second contention was that those who applied to and were rejected
appointment for the vacant positions were entitled to reasons for the decision not to
appoint them.
60
JSC contented that they were not obliged to give reasons in that their actions were
executive in nature, thus not subject to the scrutiny of PAJA and that legality required
no such obligation to give reasons.
Further, the JSC contended that the only reasons that could actually be given was
that the applicants did not receive a majority vote of the members of the JSC, and
that the members could not be asked to give reasons for the manner in which they
voted.
Brand J writing for the majority argues that an application made to the JSC entitles
the applicant to a right to expect that the application will be considered rationally and
that it would it would be cynical to have the requirement of rationality as a means of
scrutinizing exec action, and then simply accepting a decision made by the JSC
without any basis made out for their decision.
This position lends support to the fact that the requirement of rationality will in certain
situations require that reasons be given for a decision made so as to assess whether
such a decision is in fact rational.
The requirement here dictates that ‘sufficient reasons’ be given for the decision.
Held that the contention that a majority vote could not be required to give reasons for
the manner in which they voted was held to be unsatisfactory in showing that a
decision made in the appointment of judges is rational.
Concluded that quorum was not adhered to by absence of President or Deputy

President of SCA.
Concluded that in certain circumstances rationality would require that reasons be
given to show that the decision is rational and therefore lawful. Failure to do so in
JSC case rendered the process irrational and therefore unlawful.
Part 3 – PROCEDURAL FAIRNESS
(ONLY IN EXAM – NOT TEST OR ASSIGNMENT)
61
Constitutional law in context textbook - Administrative justice section – summaries of

cases
1. The content of the rules of natural justice.
2. Natural justice and the classification of functions under the common

law.
3. Quasi-judicial decisions – South African Roads Board v Johannesburg

City Council. (H 354).
4. Importance of the constitutionalization of right to procedural fairness
5. The broader concept of procedural fairness.
6. Issue of flexibility – Principles from Lord Mustil in Doody v Secretary of

State for the Home Department
Appeals
 Where an Act of Parliament confers an administrative power, there is a
presumption that it will be exercised in a manner which is fair in all
circumstances.
 The standards of fairness are not immutable. They may change with the
passage of time.
Must be given reasonable notice of the case they have to meet.
62
7. Process as opposed to substantive right.
8. PAJA is the default position.
9. Overview of section 3 of PAJA and the limitations on the right.
10. Analysis of the jurisdictional facts in section 3(1) of PAJA –
11. Joseph v City of Johannesburg 2010 (3) BCLR 212 (CC)***
 Contract was that City power would provide electricity to the building and
tenants.
 Contractual relationship with Nel alone.
 Nel does not pay City
 Is there any obligation on City power to treat the tenants procedurally fairly
before they terminate their electricity supply
 The tenants said that they have a right to be treated procedurally fairly by
City Power.
 Should have given them notice before termination of electricity
 City power: Contractually obliged to Nel
63
 No obligation to their rights

 The tenants have failed to prove the requirements of
 S3(1) read with the definition of admin action in PAJA – for you to say we
are obliged to treat you procedurally fairly -
 Based on the Jafta case – sold lady’s house – court held that your right to
access to housing doesn’t mean access to the physical structure but also
the services that go with it. Lights and water. Based on Jafta the
applicants have a right of access to housing.
 Interfering with the negative aspect to the right of housing.
 If you deprive of electricity it violates dignity.
 Sought to argue that there was an implied contract
- The admin action must have a direct external legal effect – it must simply
mean that the admin action must impact upon you directly and immediately.
Court then says that in addition to this direct external legal effect – directly
and materially
- What does the term rights mean? What the applicant has to show
- If the term rights is very narrowly defined
o Definition of rights
o Municipalities in this country have a legal obligation (a public law duty)
to supply basic services to us. These include water, electricity, waste
removal etc. that obligation is contained in the condtitution.
o Named the systems and the structures act
o Central mandate of local government is to improve quality of like for its
residents – there is a public law duty based on the constitution and on
statute that local government must provide core services.
o Creates a legal entitlement that enable s aresicdemg to create ***
- Then the courts will find that a failure to provide the services amounts an
infringement of rights.
64
- We cannot give every person not paying their water bill a hearing (inundated
– impossible)
- This may be a problem – having regard for the need to effect effective
administration and procedural fairness of applicants – give applicant’s pre-
termination notice of 14 days.
- Tenants failed to show that this amounts to direct external legal effect
- It narrows these requirements
- Carry out broader objectives of PAJA - cn;t give rights narroe interpretation
bessed o a corresponding public law duty
Analysis of S 3(1) – issue of flexibility.

Municipalities don’t want to deal
12. Core or minimum requirements ( H 332)
13. Nkomo v Administrator Natal ( H 333)
14. Du Preez v TRC.
15. Bushula v Permanent Secretary Eastern Cape (H198)
16. Reasonable opportunity to make representations ( H 334) ( most of the

prescribed cases deal with this obligation)
65
17. Earthlike Africa. ( H 375)
18. Tseleng v Chairman, Unemployment Insurance Board.(H 374)
19. Clear statement of administrative action.

20. Adequate notice of the right of appeal. – Regulation 23 (b) Regulations
on Fair Administrative Procedures – state time period within which
appeal must be lodged, name and address of person to whom it must be
addressed and other formal requirements that must be met.
21. Adequate notice of the right to request reasons.
22. Section 3(3) of PAJA – discretionary requirements
Discretionary requirements – in certain circumstances in addition to the core

requirements, you may be required to give the person a trial type hearing.
23. Hamata v Peninsula Technikon (H379)
Facts: Hamata student at technikon wrote an article. University charged him with
misconduct – tarnishing reputation of Univeersity (brought it into disrepute). Had
disciplinary hearing. Couldn’t be legally represented but represented by an academic
or a fellow student.
66
Convicted and expelled. Subsequently challenged the decision on the basis that he
had a right tot legal representation at a disciplinary hearing. This is the minimum
standard with which there must be compliance.
Core principles from Hamata:

 Absolute right to legal rep in criminal proceedings, but ITO admin
proceedings – the court held that one does not have an automatic right to
legal representation. One has a right to have your request for legal
representation considered.
 Factors court had to consider
 Whether the other side is legally represented
 The suitability of the alternatives being offered
24. Section 3(4) of PAJA
Incorporates requirements of limitations clause.

 If it is reasonable and justifiable, you may depart from these core or
discretionary requirements.
25. Section 3(5) of PAJA.
Effectively empowering statutes gives more rights.

26. Non-compliance with section 3(2)
27. Curing by Appeal.
28. Multi-staged decision making. (H 396) ***
67
Give a decision on different levels / multi-teared decisions

Caused the most difficulty
 Save the Vaal case

*** reflect on facts of save the Vaal and whether it will be decided in the same
way for Buffalo City***
 Facts: Sasol Oil Company – wanted to mine on the surface / banks

of the Vaal river. Found rich vein of coal there. Legislation which
allowed them to do this (the enabling act) provided for two
processes to be followed before mining could begin:
 Section 9 phase: envisaged an initial application for
authorization to commence exploratory action.
 Section 39 phase: possible to bypass S39 phase. Here,
there would be permission granted to commence mining but
before that happened the applicants would have had to
submit an environmental management plan – an exacting
process.
The applicants who were land owners on the Vaal river – argued for a
hearing on both phases. The respondent contended that the applicants
were going to have full hearing at the section 39 phase
It would delay process and frustrate effective administration.
Should have been given preliminary hearing at Section 9 phase.

One can invite people to make written representations and therefore
you don’t have to slow down the process.
Had acted procedurally unfairly by not providing for hearing at phases.
 Buffalo City (BC)***

 Facts: this case is post-PAJA, unlike Save the Vaal case.
68
BC municipality decided to expropriate the applicant’s land. The

legislation made clear that the way process works is that the
municipality.
Send that to the premier of the province.
Decided to start process again and indicted to the applicant
Send it up to the premier so the expropriation decision is waiting the
approval of the premier.
According to the court pages. The premier is going to invite all affected
parties to make representation. One of the consequences of the
resolution:
- Is that the owners of the land cannot alienate the land
- Effect of the resolution is that the status quo must be preserved
- Cant’ alienate my land and therefore must be given a hearing – you have
failed to demonstrate how your rights have been adversely affected.
- Demonstrate practical consequences – by reference to Joseph
o Narrowed
o Defined the concept of rights broadly.
o Don’t simply rely on trigger factor
 Brenco case
29. Consequence of a finding of procedural unfairness.
69
30. Contradiction between section 1 and section 3 of PAJA.
31. The doctrine of legitimate expectation. (h 376)
LE is something short of a right. Normally arises in one of two circumstances

 Where there is a settled course of conduct by a public body (and a
reasonable expectation that such course of conduct will continue)
 Where there is an express promise made by government – expect
government to honour its promises
The doctrine of legitimate expectation asks whether the affected person has a
legitimate expectation of a certain outcome that will entitle them to a fair hearing in
the circumstances.
Make a request that they should be given an opportunity to make representations of

the draft report before it is send to the DG and the minister. They base their
argument on the fact that the draft report has new info they want to comment on.
This was refused by the DG and a final report was prepared. In summary, the
consultants recommended that Eskom’s
Earth life Africa brings an application to review the decision without appealing the
decision to the minister. Decision of DG to not allow them to make representations in
respect of the report. Case NB for two reasons:
 Section 7 of PAJA – must exhaust domestic remedies before taking a
matter on review.
 This review is on a process ground – better for that issue to be resolved
before the minister hears other appeals.
70
32. Procedural v Substantive.
33. Ex Parte Hargeaves (H 383)
34. Ex Parte Coughlan (H 383)
35. Abdi and Nadarajah (H 384)
71

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ADMINISTRATIVE LAW KARTHY GOVENDER

- Moodle Class notes outline / Slides in class

- Order point numbers as covered in lecture

INTRODUCTION AND THE CONTEXTUALIZATION OF ADMINISTRATIVE LAW.

The first segment of the course is taught by Professor Govender and

 The history of Administrative Law,

1. Hugh Corder ‘Reviewing review: much achieved, much more to do’ in

2. Cora Hoexter “The current state of South African Administrative Law’ in

3. Karthy Govender ‘Administrative Law as a surrogate for Human Rights

- Dealt with the transition from Apartheid to the new order.

4. Segments from CSAP handbook.

ISSUES COVERED IN THIS SEGMENT.

1. The History of Administrative Law and its use as a surrogate for

 Argue that it is a violation of PAJA and the violation of another

2. The definition of Administrative Law***

General Administrative Law and specific Administrative Law.

o General Administrative Law - PAJA represents the minimum standard with

The general administrative law principles of PAJA and the principles

Admin in operation (the way administration works)

THE CONSTITUTIONAL JOURNEY***

o The Wits Nigel principles/ Common Law principles until 1994

Two questions to be asked:

Key problems with the common law standard:

3. The common law grounds of review.

- OR that the president misconceived the nature of the discretion conferred

- OR that the decision of the president was so grossly unreasonable as to

– Corbett JA in JSE v Witwatersrand Nigel 1988 (3) SA 132 at 152

4. No requirement to give reasons for decisions under the Common

Post-Apartheid Administrative Law

(To create a new vision of administrative law in South Africa. A bridge

5. Areas of agreement and the vision for a future administrative law as

o Effective Parliamentary control and supervision over delegated legislation/

o Genuinely consultative and participatory rulemaking and decision making

o Explicit articulation in empowering legislation of (the purpose of conferring)

o Open government and access to official information – (PAIA and the

o Section 24 of the interim constitution – lawful, procedurally fair

6. The journey from section 24 through the deemed section 33 to

- In 1994 there was revolutionary change when we introduced the Interim

 Read s33 (3) with item 23 of Schedule 6 of the FC.

Section 24 of the Interim Constitution

7. An assessment of section 24 of the Interim Constitution.

Entitled to Lawful Admin

Entitled to Reasons Rights/ interests Affected

 The idea was to create built-in criteria within the right.

o Deemed section 33 until PAJA was promulgated

- We look at Item 23 (subsection) of Schedule 6 of the Constitution

Item 23. Bill of Rights

(b) Section 33(1) and (2) must be regarded to read as follows:

8. The suspension of section 33 and the impact of item 23 of schedule

 S33 (3) of the constitution envisages legislation being enacted –

- When PAJA was enacted in 2000, it brought into effect section 33

 Section 33 – lawful, reasonable, procedurally fair reasons

Just administrative action – S33

1. Everyone has the right to administrative action (administrative action is the

9. The cluster of administrative justice rights with specific focus on

 As with many other constitutional rights – this is a cluster or bouquet of

Everyone is entitled to reasons if their rights have been adversely

 Review – bring forward application in admin; more narrower and limited

11. Chapter 10 of the Constitution.

QUESTION* NB* - With reference to the difference between specific