Eskom Holdings and Its Implications for South African Administrative Law

Abstract

In this Research Report I look into the implications of the Constitutional Court case of Eskom Holdings for administrative law in South Africa. The Constitutional Court handed down a majority judgment by Madlanga J and a minority judgment by Unterhalter AJ. The two judgments differ significantly, with the majority taking a liberal and generous approach to the issues that were before the court while the minority opted for a conservative approach. It is argued that Madlanga J was correct to find that the meaning of ‘rights’ as contemplated in the definition of administrative action in the Promotion of Administrative Justice Act 3 of 2000 (PAJA) as well as for purposes of an interim interdict is wide enough to include any right in the Bill of Rights. Therefore, an applicant is not required to have a specific right against the administrator, in this instance a right to electricity, in order to claim that its right has been adversely affected by an administrator’s decision or to satisfy the requirement of a prima facie right in interim proceedings. Further, I am of the view that the majority’s finding that in certain instances organs of state may not exercise their contractual rights without due regard to administrative-law principles is a welcome addition to the jurisprudence. I also argue that Madlanga J ought to have found that the principle of subsidiarity and the duty to exhaust internal remedies as required by PAJA should not find application in interim proceedings. The questions whether an applicant has exhausted internal remedies or whether the principle of subsidiarity is applicable should be left to the review court.