1.

PAJA defines administrative action as the exercise of public power or the performance of
a public function, either by way of taking a decision or by way of failing to take a
decision. This exercise of public power is taken by an organ of state, or a natural or
juristic person, in terms of an empowering provision. 1 The definition of each element of
administrative action was further expanded in the New Clicks2 case, the element pivotal to
this question is a decision that the recommendations should adversely affect rights and
should have a direct external legal effect and such conduct or action should affect the
rights of the person concerned directly rather than indirectly. 3 On the other hand, upon
receiving complaints from citizens, the office of the Public Protector investigates, reports,
and takes appropriate remedial action against the relevant organ of state and such action
is regulated by the Public Protector Act.4

One of the indicators of the suitability of administrative action is by looking at the enabling
legislation of the actor in question. In looking at the source of the power of the public protector,
by virtue of being a Chapter 9 institution, the office of the public protector is a constitutional
mandate. It is important to note, however, that not all actions taken by constitutional institutions
necessarily constitute administrative action. For example, the judiciary and the executive are also
constitutional mandates but are not statutorily empowered similarly to the Public Protector.
Nonetheless, they may still be subject to judicial review under the principle of legality, which
requires that all actions taken by public officials be lawful and consistent with the Constitution
and other relevant laws. 5

The first element in determining administrative action, whether the decision made will adversely
affect the rights and have a direct external legal effect is embedded in the role of the public
protector. The Public Protector is responsible for investigating complaints of maladministration,
improper conduct, and violations of the Code of Ethics by state organs and officials, and for

1 Section 1 of the Promotion of Adminstration of Justice Act No. 3 of 2000, Government Gazette, Vol.
417, No. 20836, 3 February 2000.
2 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others at 50.
3 Minister of Home Affairs and Another v Public Protector of the Republic of South Africa (308/2017)
[2018] ZASCA at 37.
4 Minister of Health v New Clicks at 57.
5 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v
Speaker of the National Assembly and Others [2016] ZACC 11 at 47.
taking appropriate remedial action. While the Public Protector's remedial actions may indirectly
affect the rights of individuals, such as by ordering that compensation be paid to affected parties,
her primary focus is on ensuring accountability and good governance of state institutions. As
such, the Public Protector's actions are generally not considered to be administrative action under
South African law, as they do not involve the exercise of public power that has a direct and
external legal effect on the rights of individuals. This was illustrated in the case of EFF, whereby
the public protector’s findings were held to be binding upon the office of the President for
misappropriation of funds for unnecessary upgrades on Nkandla. The constitutional court held
that the remedial action of the public protector is binding on state institutions as the role of the
office is to provide checks and balances to state institutions, and so although the President is a
person, the accountability was directed to the office of the president as a state party therefore, the
remedial action of the public protector does not constitute administrative action.6

2. The appointment of a Magistrate by the magistrate’s commission falls outside the ambit
of the exclusions of “a decision relating to any aspect regarding the nomination, selection
or appointment of a judicial officer or any other person, by the Judicial Service
Commission in terms of any law” as the appointment of a Magistrate follows its own
process. As such decision is not excluded from PAJA, we now attempt to argue that the
decision of appointment is an administrative action on the basis of adversley affecting
one’s rights. In the case of Wessels v Minister for Justice and Constitutional
Develeopment7 the applicant was was not elected to be appointed as a magistrate and the
second respondent was elected. The applicant requested reasons in terms of s5(1) of
PAJA, through his attorneys but to no avail which then led to the review whereby the
Miniser argued that the applicant was not owed reasons as their rights were not affected
and therefore would not act in terms of PAJA. In determining whether the minister’s
decision to not appoint Wessels as magistrate constituted administrative action, the court
applied the determination and deprivation theory, and that the determination theory
applied because it is sufficient for a right that could be adversley affected to be identified.
Whereas if the deprivation theory applied and the right has to be deprived in order to

6 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2006] ZACC 9 at 50.
7 Wessels v Minister for Justice and Constitutional Development and Others (594/09) [2009] ZAGPPHC
81; 2010 (1) SA 128 (GNP) (2 June 2009).
 apply administrative justice, it would not give effect to one’s s33 constitutional right to
administrative action. 8 In following the precedent set in Wessels and the application of
PAJA, the appointment of Magistrates constitutes administrative action and therefore
when a potential candidate is not elected, they are entitled to reasons.
The Court concluded in SARFU that the emphasis of the investigation should be the nature of the
authority exerted, not the name of the actor, in order to assess whether certain conduct
constituted an administrative action. According to the Constitution, the executive branch's
members—including the president and cabinet ministers in both the national and provincial
spheres—exercise a variety of powers. Some of those, such as the implementation of legislation
or policy, will often be considered administrative activity, while others, such as formulation of
legislation, would not. In the case of National Commissioner of the South African Police Service
v Southern African Human Rights Litigation Centre9, the Constitutional Court of South Africa
considered whether the conferment of an award on the former head of state of Sudan by the
President of South Africa was an administrative action subject to review under PAJA.

In its judgment, the Court held that the conferment of an award by the President is a
discretionary and ceremonial function that is not subject to PAJA. The Court stated in paragraph
45 of its judgment that "the conferral of awards is a discretionary and ceremonial act, which is
not susceptible to review under PAJA." The Court also noted that the conferment of an award
does not involve the exercise of public power or the performance of a public function by an
organ of state, and therefore falls outside the scope of administrative law. The Court concluded
that the decision to confer an award is a matter of political judgment, which is not justiciable in
the courts. Therefore, this provides legal authority for the proposition that the conferment of
honours by the President is not an administrative action subject to review under PAJA.

3. Administrative action may ordinarily be carried out by actors carrying out a public
function however, there are instances where a private party may act as a public actor
which would essentially give effect to the meaning of administrative action for the
purposes of PAJA. Administrative law is concerned with regulating the exercise of public

8 Wessels v MInister for Justice and Constitutional Development.

9 Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange (Pty) Ltd 2000 (4) SA 426 (SCA) at
7.
 power, and it recognizes that private entities may sometimes exercise such power in ways
that have a significant impact on the public. 10 For instance, in the JSE case, the applicant
approached the court seeking a review of the decision of a committee of the JSE that was
contrary to its rules. The JSE raised a defense that the matter could not be reviewed as the
JSE is not a statutory body and therefore the review could not constitute administrative
action. The judgments of the committee of a stock exchange, however, differ from those
of commercial banks and other enterprises, established under their individual statutes in
that they have an impact on the general public as well as the whole economy. The Act
places the public interest first because of this. Regarding the JSE as a private organization
would mean ignoring commercial realities and public interest that the Act aims to
preserve and safeguard. The court then held that the JSE had a public impact due to its
bearing on the economy therefore it was administrative action. The decisions of sectional
title scheme body corporates fall short of the requirement of public impact.
On the other hand, for instance, a private company that operates a utility or provides a public
service may be considered a public actor if it is fulfilling a function that is traditionally
performed by the government, especially in instances where the acting private party is the only
source of solution for the affected party. Again, the decision of a body corporate does not fall
under this as the basis of challenging such a decision would be contractual. In the case of DSG
Brink was expelled from matric for bunking out which is a serious offence under the DSG
disciplinary code and the expulsion was challenged. The court held that it was not possible for
DSG to be held publicly accountable for its decisions in disciplinary matters. The disciplinary
code is there for the benefit of the school, the learners and the parents. Learners are not obliged
to enroll at DSG and if they are expelled, they are not prevented from obtaining further education
elsewhere. It was held that the applicant had a contractual duty to comply with the code of
conduct of the school which they accepted at their free will as DSG is a private school. 11
Similarly, the decisions of body corporates and homeowners does not constitute administrative
action because the basis of their agreement is contractual and should be challenged contractually.
Lastly, people have the free will to seek other sectional title properties with contractual terms
that suit their desires.
10 Brink and Others v Diocesan School for Girls and Others (1072/2012) [2012] ZAECGHC 21 (1 May
2012) at 39
11 National Commissioner of the South African Police Service v Southern African Human Rights
Litigation Centre [2013] ZACC 28 at 45.