ADMINISTRATIVE LAW

GROUP RESEARCH ASSIGNMENT 2024

SC MCAMENI 37762273

O GAONAKALA 36674478

DUE DATE: 11 APRIL 2024

 INTRODUCTION

Both Constitutional principle of legality and Promotion of Administrative Justice Act are
legal concepts and they associate to administrative action but have different capacity
and application.

Principle of legality refer to the a mechanism to ensure that the state, its organs and its
officials do not consider themselves to be above the law in the exercise of their
functions but remain subject to it.1 Principle of legality is the central to the rule of law
under our constitution.2 It relates to two theories namely; Doctrine of substantive
justice which it’s aim is prohibiting and punishing any conduct that cause harm to the
society whether or not that conduct has been legally criminalized at the time it was
done, and doctrine of strict legality which is aimed at ensuring that the person is held
accountable for his criminal offence and punished for it if at the time he committed it ,
such offence was regarded as an offence under the relevant legal order or under
applicable law.

Promotion of Administrative Justice Act is the law passed to give effect to the right to
just administrative action in the Bill of Rights. As the constitution provides in section33
that everyone has a right to i)fair, lawful and ii) right to reasonable administrative action
that affects them negatively.3 PAJA offer people a chance to narrate their side of the
story before any decision can be taken. It allows people to know why the decision ran
against them. It ensure that people know and understand why the administration

1
Masiya v Director of Publlic Prosecutions and Others 2007 (5) SA 30 (CC).
2
Veldman v Director of Public Prosecutions ( Witwatersrand Local Division) (CCT19/05) [2005] ZACC 22;
2007 (3) SA 210 (CC); 2007 (9) BCLR 929 (CC); 2006 (2) SACR 319 (CC) ( 5 December 2005).
3
Section 33 of the Constitution of the Republic of South Africa, 19996.
produced certain results and it also make sure that proper decision are taken. It birth
the opportunity for people to challenge decisions that improperly taken.

The difference between the Constitutional principle of legality and PAJA is that the
former is broader norm of constitutional law that regulates all exercises of public power.
It also avoids the difficulties of whether the conduct amounts to administrative action
and goes straight to the more essential question, “What does administrative justice
actually need?”. Principle of legality is also used to subject executive action and any
administrative action that is in conflict with the law or that surpass the powers given to
the public officials or organ of state can be disputed and set aside by the court. So the
principle of legality places duty on the officials to act conforming to the law, including
both the common law principles and statutes.

With the latter it sets out the rights and remedies available to the people whom their
rights have been adversely affected by administrative decisions. It is also used to
review. It demonstrates the principles of procedural fairness, such as the right to be
heard, to be given written reasons for decisions, the right to appeal or review
administrative action. It gives the detailed process for review of administration actions
including the circumstances which review can be sought. It only applies to
administrative actions done by public bodies but not the private bodies unless such
private bodies were performing public function or exercising public power. It is a specific
legislation that provides a procedures and remedies for challenging administrative
actions. PAJA is the constitutional legislation mandated by section 33(3) of the
constitution to give effect to the constitutional rights to just administrative action.

The Constitutional principle of legality and PAJA relates in the administrative law. Organ
of state cannot utilize PAJA for purposes of reviewing and setting aside its own decision
and it must do so through the legality route. 4 Principle of subsidiarity is could be used to

4
State Information Technology SOC Limited v Gijima Holdings (Pty) Ltd [2017] ZACC 40.
organise the two main pathways of judicial review on a more principled foundation.
With regard to section 33 of the Constitution and PAJA the principle subsidiarity can be
used to achieve this. In the Motau case it was suggested that one organising principle
may be the need to show deference to a decision of the executive in nature can be
justified by the need to show the Executive a greater level of deference. 5

The relationship between the two is one of subsidiarity and one that recognises the
continuum of constitutional accountability. While assessing judicial review proceedings,
two key principles play a significant role in determining the sources of law. These
principles are the principle of legality and the Promotion of Administrative Justice Act
(PAJA). However, it is important to recognize that these are specific aspects of broader
constitutional norms related to accountability. The principle of legality represents the
rule of law, which is a fundamental value stated in section 1(c) of the Constitution. On
the other hand, PAJA is a constitutional legislation mandated by section 33(3) to
facilitate the realization of the constitutional rights to fair administrative action. It serves
as a means for indirectly applying the rights outlined in section 33. Therefore, at its
core, the primary norms of accountability in contention are the rule of law as a
foundational value of the Constitution and the rights to fair administrative action
outlined in section 33. Consequently, when conducting a constitutional analysis, it is
crucial to consider these underlying norms to establish a comprehensive understanding
of the relationship between PAJA and the principle of legality at the initial stage of the
analysis.

The relevance of the Doctrine of separation of powers

The doctrine of separation of powers classifies administrative action in three categories

namely the executive, legislative and judicial these three categories correspond to
institutional and functional aspects of administrative action, these three branches derive
their powers from the constitution.6 separation of powers plays a vital role in shaping
the avenues of judicial review of administrative action in South Africa. By preventing the
5
Minister of Defence and Military Veterans v Motau and Others (CCT 133/13) [2014] ZACC 18; 2014 (8)
BCLR 930 (CC); 2014 (5) SA 69 (CC) (10 June 2014).
6
Quinto G et al Administrative Justice South Africa an Introduction 77.
concentration of power in a single branch of government, ensuring checks and balances
among the three branches of government. This principle is essential in maintaining the
integrity of the judicial review process, as it prevents any one branch from taking
control of position power from another. While the judiciary must exercise caution in
reviewing administrative decisions to avoid overreach, it is equally important for
upholding the rule of law and preventing abuse of power. 7 Ackerman J in De Lange v
Smuts emphasized the development of a distinct South African model of separation of
powers, that balance the need to control government through checks and balances
while ensuring the ability of the government to act promptly in the public interest.

Sewpersadh and Mubangizi emphasize that the separation of powers is not about
competition among branches but rather about creating a symbiotic relationship where
each branch contributes to the functioning of the government. Furthermore, mentions
that the courts in South Africa have developed a model of separation of powers that
balances the need to control government through checks and balances while allowing
for timely measures in the public interest, reflecting the unique constitutional framework
of the country.8 De Lange V Smuts, In this case, the Constitutional Court's engagement
in judicial review of the President's decision to bring an Act of Parliament into force
exemplifies the court's role in upholding the rule of law and preventing potential
overreach by the executive branch. By scrutinizing administrative actions through
judicial review, the court reinforces the principles of accountability, legality, and
constitutionalism, thereby safeguarding the rights and interests of individuals and
maintaining the balance of power within the government. This case serves as a
poignant illustration of how the separation of powers and judicial review mechanisms
are indispensable in preserving the integrity of administrative actions and ensuring
adherence to constitutional principles in a democratic society. 9

7
Sewpersadh and Mubangizi 2017 AHLRJ 21.
8
Sewpersadh and Mubangizi 2017 AHLRJ 21.
9
De Lange v Smuts NO and Others 1998 (3) SA 785(CC).
The attitudes, approaches and consistency (or lack thereof) of the South
African courts.

The courts in South Africa have demonstrated a deep understanding and respect for the
doctrine of separation of powers in their approach to judicial review, ensuring that all
exercises of public power, including administrative actions, operate within the
boundaries Constitution. The courts In South Africa have interpreted and applied the
doctrine of separation of powers in the context of the Promotion of Administrative
Justice Act (PAJA) and the constitutional principle of legality to ensure a balanced
system of governance. Sewpersadh and Mubangizi highlighted the case of Democratic
Alliance v President of the Republic of South Africa In this case, Vally J stated that the
current executive powers are not as unfettered as the royal prerogative, emphasizing
the need to interpret executive powers considering the Constitution and the doctrine of
separation of powers.10 By upholding the separation of powers, the judiciary plays a
vital role in overseeing the exercise of power by the executive and legislature,
particularly in matters of administrative justice. In the case of President of Republic of
South Africa v SARFU, The Constitutional Court held that there were constraints on the
President’s action, emphasizing the requirement for the President to act in good faith
and not misconstrue his powers, thereby giving content to the principle of legality. 11 The
courts have demonstrated a deep understanding of the need for checks and balances to
prevent the abuse of power while respecting the distinct roles of each branch of
government. In cases involving the review of executive decisions, the courts have
carefully navigated the fine line between judicial oversight and executive authority,
ensuring that administrative actions conform to the principles of legality and the
standards set by the PAJA. This approach reflects a commitment to upholding the rule
of law and preventing arbitrary exercise of power, thereby promoting transparency,
accountability, and fairness in administrative decision-making processes. Sewpersadh
and Mubangizi refers to the case of Albutt v Centre in which for the study of Violence
and Reconciliation, this case reflects an element of deference on the part of the
10
Sewpersadh and Mubangizi 2017 AHLRJ 21.
11
President of Republic of South Africa V South African Rugby Football Unions 2000 (1) SA 1 (CC).
judiciary, highlighting the balance between judicial oversight and the rights of
individuals affected by executive decisions. 12 Through their interpretation and
application of the doctrine of separation of powers, the courts in South Africa have
contributed to the effective implementation of the PAJA an d the constitutional principle
of legality, safeguarding the rights of individuals, and maintaining the integrity of the
administrative justice system.

CONCLUSION

Principle of Legality and the Promotion of Administrative Justice Act as avenues of

judicial review in the context of administrative action in South Africa plays a vital role in
ensuring accountability, legality, and constitutionalism within the government. By
upholding the rule of law and preventing potential overreach by the executive branch,
the judiciary, through judicial review mechanisms, safeguards the rights and interests of
individuals while maintaining the balance of power in a democratic society. The Doctrine
of Separation of Powers is highlighted as a fundamental principle that shapes the
avenues of judicial review of administrative action. Through a deep understanding and
adherence to the Doctrine of Separation of Powers, the courts in South Africa have
demonstrated a commitment to upholding the rule of law and overseeing the exercise
of power by the government, ultimately contributing to a just and accountable society.

Bibliography

Literature

Quinto G et al Administrative Justice South Africa an Introduction 2nd Edition (Oxford

University Press Southern Africa 2020)

Sewpersadh P and Mubangizi JC “Judicial review of administrative and executive

decisions: Overreach, activism or pragmatism?” 2017 AHRLJ 201-220

12
Sewpersadh and Mubangizi 2017 AHLRJ 21.
Legislation

The Constitution of the Republic of South Africa, 1996

Case law

De Lange v Smuts NO and Others 1998 (3) SA 785(CC)

Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC

Minister of Defence and Military Veterans v Motau and Others (CCT 133/13) [2014]
ZACC 18; 2014 (8) BCLR 930 (CC); 2014 (5) SA 69 (CC) (10 June 2014)

President of Republic of South Africa V South African Rugby Football Unions 2000 (1)
SA 1 (CC)

State Information Technology SOC Limited v Gijima Holdings (Pty) Ltd [2017] ZACC 40

Veldman v Director of Public Prosecutions (Witwatersrand Local Division) (CCT19/05)

[2005] ZACC 22; 2007 (3) SA 210 (CC); 2007 (9) BCLR 929 (CC); 2006 (2) SACR 319
(CC) ( 5 December 2005)