By Bayethe Maswazi

Section 33(1) of the Constitution guarantees every citizen the right to a lawful, reasonable and procedurally fair administrative action.

Section 33(3) further enjoins the legislature to enact legislation to give effect to the right referred to in s 33(1). The Promotion of Administrative Justice Act 3 of 2000 (PAJA) became the Act envisages in s 33 of the Constitution.

In fulfilling what it is required to do by the Constitution, namely, to give effect to the right contained in s 33(1), PAJA defined what administrative action is, and is thus liable to be reviewed when it violates its provision, and also what it is not and is thus not liable to be reviewed either in terms of the provision of PAJA or at all when it happens to transgress any of the rights in the Constitution. PAJA left untouched a vast area inhabited by a number of acts, which were considered as administrative actions prior to its enactment by its provisions, such as actions by public sector employers when they dismiss their employees and which hitherto have always been recognised as being liable to review on the basis of procedural fairness, or actions of voluntary associations when they discipline their members. This became an area too large for it not to be reviewed, or only to be reviewed at common law. The most pertinent weakness of PAJA is that it is likely to result in its receding influence as the central thrust of the cause of action for review of administrative action and consequently, that of the constitution of which it is a progeny. Will PAJA survive? In this article I discuss PAJA and whether it will continue to impact in our administrative review jurisprudence – as much as it has done – in light of the rapid emergence of legality as yet another ground for review of administrative actions, outside the provisions of s 33(1) of the Constitution and PAJA itself.

PAJA or rule of law?

The provisions of PAJA insofar as they relate to the review of administrative action are onerous. Too often it happens that a litigant approaches a court for review without pertinently invoking any of the provisions of PAJA.

Subsequently it turns out that such a litigant has not complied with one or other of the provisions of PAJA and has not laid down a sufficient basis for condonation for such non-compliance resulting in the court from granting the review sought in terms of PAJA. Such a litigant is often, of late, rescued from such a situation by resorting to legality as his ground for review. It has also happened that certain actions of state functionaries are singled out in PAJA as non-reviewable. Examples here would be the decision of the National Director of Public Prosecution to, or not to prosecute, the actions of the Judicial Services Commission in recommending or not recommending an aspirant judge for appointment by the President of the Republic. Of late courts have found reason to ignore the provisions of PAJA and review such decisions on the basis of illegality, and not PAJA. (See in this regard, Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA) and also Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC)). In other words actions that are immunised by PAJA against judicial review do become reviewable under the doctrine of legality, thus creating a systems of administrative review outside PAJA and therefore outside the provisions of s 33(1) of the Constitution.

It is impossible to define the actions tabulated above as administrative action since they are explicitly excluded from the definition of an administrative action contained in PAJA. Something very interesting is that the very genesis of the cause of action based on review intrinsically necessitates that the decision sought to be reviewed must constitute administrative action, otherwise it is not reviewable. Where then does legality get its own definition of administrative action if not from PAJA and therefore s 33(1) of the Constitution? This is a question that our courts have not answered as yet and judging from their recent decisions, are not prepared to answer. The above does illustrate that even a review based on legality inadvertently reverts to PAJA for it does not have its own definition of administrative action other than the one which derives from PAJA and the Constitution. Therefore, there is a natural interlink between PAJA and legality for two reasons. Firstly, what is always sought to be reviewed can only be an administrative action referred to in s 33(1) of the Constitution and given meaning by PAJA. Secondly, s 33(1) of the Constitution requires that an administrative action must first be lawful. This is nothing short of the expression of the doctrine of legality that is built into s 33(1) of the Constitution. To emphasise, s 33(1) of the Constitution requires that an administrative action must, as a precursor to its procedural fairness, be lawful. This in my view is nothing short of the practical expression of the doctrine of legality that is alluded to in s 1 of the Constitution.

Two systems of administrative review?

In Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC), the Constitutional Court had occasion to consider the relationship between common law grounds of review and those based on the Constitution. From this judgment, two things become clear, one is that all grounds of administrative review are based on the Constitution and therefore PAJA, the other is that any ground of administrative review based on common law must be developed on a case by case basis. The Pharmaceutical Manufacturers case clearly did not bargain on the law developing in the direction of giving birth to a ground of administrative review, which while based on the Constitution is nonetheless, not based on PAJA and its source namely s 33(1) of Constitution.

I therefore submit that the emergence of legality as the ground for administrative review is a new jurisprudence, which breaks rank with the principle enunciated in the Pharmaceutical Manufacturers case since it creates an offshoot system of administrative review based on the Constitution but outside s 33(1) of the very same Constitution and PAJA. Courts have not really clarified whether the doctrine of legality as a ground for judicial review should be resorted to only where PAJA is not available as a ground of review for whatever reason, thus leaving litigants at large to choose the doctrine of legality as a basis on which to stand in impugning one or other of the actions of state functionaries. In N Gagayi v Ingquza Hill Local Municipality and Two Others (unreported case no 1251/12, 22-6-2012) (Mbenenge AJ) the Eastern Cape Division – Mthatha per Mbenenge AJ (as he then was), opined that a person who approaches a court for review invariably has two choices, namely, those being to approach the court on the basis of PAJA; or based on legality. He did not, however, dwell at length on the distinguishing requisites of a review based on legality as opposed to one based on PAJA. This occured in a case where the applicant had not exhausted internal remedies in terms of PAJA, and were, as it is of late becoming frequent, rescued by resort to legality as their ground of review and as opposed to PAJA and thus the court saw its way clear in granting them the review they sought. Had they come to court on the basis of PAJA, at the very least the court would have required them to exhaust internal remedies, and decline the relief sought, at least not until internal remedies have been exhausted. In the Gagayi case, the provisions of s 1(c) were pertinently implicated.

It is thus fair to surmise from the recently accumulated jurisprudence that, courts do not see PAJA as being complimentary to the rule of law or doctrine of legality as grounds for judicial review of administrative action. On the contrary, the two bases for judicial review are seen as two different lanes of the same street going the same direction but clearly separated from each other. Whether the two lanes can be straddled is not as yet clear. The recent decision of Murphy J in Freedom Under Law v National Director of Public Prosecutions and Others 2014 (1) SA 254 (GNP), there it was held at para 221, that it is unnecessary to characterise an impugned decision as an administrative action in order to render it reviewable on the basis of legality. What this means is that we are beginning to see signs of the growth of jurisprudence that seeks to draw a solid line between a review based on legality and the one based on PAJA. Perhaps in future we are going to see courts taking this trend further and actually setting out the requisite distinguishing factors for the two grounds of review. Such a trend, were it to emerge might save PAJA from its receding influence in administrative review jurisprudence, and the obscurity to which it seems to be destined.

Where is legality coming from?

While legality has always been accepted as one of the common law grounds for review, courts have located it within the Constitution. They have not applied it as part of their duty encapsulated in s 39(2) and (3) of the Constitution. Again it is not clear why courts have opted for the option they have, thus leaving us with two distinct causes of action emanating from the same set of facts.

One of the foundational values of our constitutional democracy is the rule of law, a principle encapsulated in s 1(c) of the Constitution. Courts have not held that s 33 (1) of the Constitution is the affirmation of the rule of law at least to the extent that it requires that an administrative action must be lawful. Why this is not so is not yet clear? While rule of law reviews have always been a feature of our jurisprudence, their popularity has grown over the years and have tended to eclipse PAJA as a ground for review. The Constitutional Court in Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (Nicro) and Others 2004 (5) BCLR 445 (CC), seems to suggest that no cause of action can arise from the provisions of s 1 of the Constitution. If the cause of action based on legality is based on s 1(c) of the Constitution, surely the Nicro case jurisprudence along with the Pharmaceutical Manufactures case have now clearly been contradicted to a point where they can no longer be said to be law. This has happened as the result of the emergence of legality as a cause of action for administrative review based on the Constitution, in particular s 1 of the Constitution but outside PAJA, which is born by s 33 of the Constitution.

Conclusion

As long as the courts have not fully tabulated the principle distinguishing factors between the grounds of review based on PAJA and those based on rule of law, PAJA’s passage towards obscurity is guaranteed, a sad eventuality. The legislature can, however, solve this jurisprudential anomaly by amending PAJA and removing from it the immunity given to certain decisions of public functionaries by rewording the definition of administrative action contained therein.

Bayethe Maswazi BProc (Walter Sisulu University) is an attorney at Mbabane Sokutu Inc in East London.

This article was first published in De Rebus in 2014 (Nov) DR 24.