Towards a substantive conception of the scope of administrative-law review in South Africa
Date
2020
Authors
Penfold, Glenn
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Abstract
Administrative law in South Africa is grounded in a constitutionally entrenched right to just
administrative action and its progeny, the Promotion of Administrative Justice Act 3 of 2000
(PAJA). The scope of administrative-law review in this country is thus synonymous with the
meaning of ‘administrative action’ – the threshold concept referred to in s 33 of the
Constitution and defined in some detail in PAJA.
In giving meaning to the concept of ‘administrative action’, courts should adopt a
substantive, non-formalistic approach having regard not only to the language of PAJA but
also to the values of the Constitution, including the separation of powers, accountability and
good governance. The crucial question under a substantive approach is whether or not it is
appropriate to subject the relevant decision to the rigours of administrative-law review. But
this question is too open-ended. It is thus useful to assess whether substantive reasoning can
be accommodated through the application of a relatively precise test for a particular
definitional element of ‘administrative action’ or, if this is not possible, to adopt an open ended
test that allows for the consideration of various substantive factors.
The tests that our courts apply for distinguishing between public and private power and for
delineating administrative action from executive action are open-ended. This is, in itself,
unproblematic, provided that all relevant considerations are properly taken into account in the
classification exercise. In applying and refining these tests over time, our courts should
interrogate whether certain factors might amount to either necessary or sufficient conditions,
should scrutinise the weight to be attached to the various factors, and should rigorously
consider applicable precedent. Our courts’ track record on this score has been inconsistent,
resulting in jurisprudence that, in some respects, lacks coherence.
The approach of our courts to distinguishing administrative action from legislative or
judicial action is more precise. As a proper reading of the case law suggests, a substantive
approach to this distinction should emphasise not only the function that is at issue but also the
nature of the functionary
Description
A thesis submitted in fulfilment of the requirements of the degree of Doctor of Philosophy in the School of Law, of the University of the Witwatersrand, Johannesburg, 2020