Towards a substantive conception of the scope of administrative-law review in South Africa

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