n Acta Juridica - 'Administrative action' in the courts : country studies

Volume 2006, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



Twelve years ago South Africans acquired constitutional rights to just administrative action for the first time. Simultaneously and ineluctably we acquired the new concept of 'administrative action' itself. This threshold concept describes the area of operation of the rights to administrative justice. Most obviously, and as the Constitutional Court made clear early on in a series of ground-breaking decisions, these rights do not apply to legislative, executive and judicial decisions. But more recently that basic threshold has been raised considerably. The Promotion of Administrative Justice Act 3 of 2000 (PAJA), which was mandated by the Constitution in order to give effect to the rights in s 33 of the 1996 Constitution, has severely circumscribed the realm of administrative action by means of an elaborate statutory definition.

While I accept that the rights in s 33 must attach to something, I have little faith in the benefits of threshold concepts in general. I have even less faith in the way in which this particular concept has been defined in the Act. As I have indicated a number of times since the enactment of the PAJA, 7 to me the statutory definition seems parsimonious, unnecessarily complicated and probably as unfriendly to users as it is possible to be. Indeed, my opinion is that this part of the PAJA creates many more problems than it solves, and here I do not mean merely technical difficulties such as the precise meaning of phrases contained in the definition. The judicial tendencies to which I shall draw attention in this paper suggest problems of a far more fundamental and systemic nature.
This paper is not primarily concerned with the characteristics of administrative action or with what the courts have already classified as administrative. Nor is it my aim to offer a complete survey of the case law. I hope to show merely that my pessimism about the concept of administrative action is apparently being justified by some of the responses of the courts over the last few years - both to 'administrative action' in its constitutional incarnation and to the Act's definition of it.

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