Constitutional and Administrative Law
South African constitutional law is the area of South African law relating to the interpretation and application of the Constitution of the Republic of South Africa by the country’s courts. All laws of South Africa must conform with the Constitution; any laws inconsistent with the Constitution have no force or effect.
Administrative law can broadly be described as a branch of public law that regulates the way in which public authorities, and in certain instances also private entities, perform their powers and functions when implementing or giving effect to statutory and other empowering provision. The idea that administrative decision-makers cannot exercise powers beyond those conferred on them in law is a fundamental feature of South Africa’s Constitutional democracy.
The Constitution enshrines at Section 1(c) that the Constitution and the rule of law are supreme. Section 33 of the Constitution which records that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Similarly, public and private bodies that exercise public powers and functions ought to be regulated in terms of law.
The main piece of legislation overseeing administrative reviews is the Promotion of Administrative Justice Act 3 of 2000 (“the PAJA”). Section 1 of the PAJA defines administrative action as: –
“administrative action‟ means any decision taken, or any failure to take a decision, by – (a) an organ of state, when
(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation;
or
(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect … “
A decision, for the purposes of PAJA:
means any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be, under an empowering provision, including a decision relating to –
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative nature, and a reference to a failure to take a decision must be construed accordingly.
In my practice I deal with a range of reviews regarding various decisions by Departments and Officials. These include mining rights, environmental authorisations, licenses, town planning permissions and the award of tenders.
