To PAJA or not to PAJA that is the question? Is the avoidance of PAJA justified?

April 1st, 2023
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Picture source: Gallo Images/Getty

The question whether a particular action qualifies as administrative action is determined by reference to jurisprudence that establishes the meaning of this term in s 33 of the Constitution and the definition in s 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) are key considerations.

However, the courts have not been consistent in interpreting the above and have often relied on the constitutional principle of legality as a basis for review, without giving much thought to PAJA.

In theory, this option should not be available where the conduct that is challenged in review amounts to administrative action. In the case of Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC), Ngcobo J stated the position clearly as follows:

‘Where, as here, the Constitution requires Parliament to enact legislation to give effect to the constitutional rights guaranteed in the Constitution, and Parliament enacts such legislation, it will ordinarily be impermissible for a litigant to found a cause of action directly on the Constitution without alleging that the statute in question is deficient in the remedies that it provides. Legislation enacted by Parliament to give effect to a constitutional right ought not to be ignored.’

It follows that where action amounts to administrative action, a person wanting to challenge such action in review proceedings, must do so under PAJA and cannot rely on the legality principle. The courts have, however, not been consistent in following this principle. One continues to find judgments in applications for review of administrative action where judges do not engage with the question of whether the relevant action amounts to administrative action with the consequence that PAJA must be followed or where judges expressly state that it does not matter whether the action amounts to administrative action, because the principle of legality would nevertheless apply.

In Malema and Another v Chairman, National Council of Provinces and Another 2015 (4) SA 145 (WCC); [2015] 2 All SA 728 (WCC) the court held: ‘In [my] view … I consider that it is unnecessary to determine the applicability of PAJA since it was common cause that first respondent’s rulings were, at the very least, subject to review under the principle of legality’.

This reasoning is not entirely arbitrary, as in a prior case of Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC), the Constitutional Court (CC) (the very same court as in the New Clicks case and the very same judge) held that ‘there was no need to resort to the PAJA at all where the legality principle was capable of resolving a dispute. More than that, it criticised the court below for engaging in the administrative action inquiry, a merely “ancillary” question that there was no need for the court to “reach” precisely because the case could be resolved by the legality principle (paras 82 – 83)’ (Professor Cora Hoexter ‘South African Administrative Law at a Crossroads: The PAJA and the Principle of Legality’ (https://adminlawblog.org, accessed 30-1-2023)).

In truth, ‘the Albutt approach undermined the principle of democracy and the separation of powers. This is because the legislature has, in PAJA, articulated the standards of natural justice required when the President’s exercises of public power do amount to administrative action. By failing to consider whether those standards were applicable, the court disregarded the legitimate role of the legislature in setting those standards. Moreover, the court’s failure to justify, properly, on substantive grounds, the basis upon which it would not apply PAJA, undermined the separation of powers. … [T]he court detracted from constitutional supremacy, in that PAJA is the constitutionally mandated legislation that gives effect to s 33 of the Constitution which courts must invoke when reviewing the exercise of public power that amount to administrative action’ (Melanie Murcott and Werner van der Westhuizen ‘The ebb and flow of the application of the Principle of Subsidiarity – critical reflections on Motau and My Vote Counts’ (2015) 7 CCR 43).

Likewise, ‘the court’s choice of legality rather than PAJA, as a basis for reviewing the President’s conduct, appears arbitrary’ (Murcott and Werner van der Westhuizen (op cit)).

‘In Valuline CC v Minister of Labour [(2013) 34ILJ 1404 (KZP)], the Minister of Labour exercised her power in terms of the Labour Relations Act 66 of 1995 to extend a collective agreement to non-signatories in the clothing manufacturing industry. The litigants challenged the Minister’s decision on the [basis] of both the principle of legality and PAJA. Koen J, however, found it “irrelevant” to determine whether the conduct in question amounted to administrative action, and consequently whether PAJA was applicable, since the conduct fell to be reviewed under the principle of legality. In following the Albutt approach, Koen J’s selection of legality as a basis to review the Minister’s conduct, disregarded the legitimate role of the legislature in enacting PAJA so as to give effect to s 33 of the Constitution’ (Murcott and Werner van der Westhuizen (op cit)).

I can understand clearly why the courts are reluctant to apply PAJA. Apart from its complicated definition of administrative action (see the case of Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 69 (CC)) where I believe the applicants were unfairly treated for relying on PAJA and sent home precisely because of the ‘complicated definition of administrative action, the PAJA imposes unpopular procedural rules on applicants for judicial review: An outer limit of six months for making the application (section 7(1)) and a stringent duty to exhaust internal remedies first (section 7(2)). By contrast, legality review attracts more indulgent common-law versions of these rules, which adds to its allure’ (Hoexter (op cit)).

Regarding State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd [2016] 4 All SA 842 (SCA), Hoexter (op cit) comment as follows:

‘The applicant, [State Information Technology Agency (SITA)], asked the court to set aside as unlawful SITA’s own decision to enter into a contract with Gijima pursuant to a procurement process. Being seriously out of time, SITA ignored the PAJA and its inconvenient time limit and relied on the legality principle instead. The court below held that it was not entitled to avoid the PAJA, and a majority of the SCA agreed … . Cachalia JA said (paras 38 and 44):

“In my view, the proper place for the principle of legality is to act as a safety net or measure of last resort … [W]hen PAJA does apply, litigants and the courts are not entitled to bypass its provisions and rely directly on the principle of legality.”

The majority rejected SITA’s argument, that as an organ of state, it was not bound by the PAJA and/or by section 7(1), and was thus free to use the legality principle. The minority, on the other hand, seemed to accept this argument, and deplored the majority approach as “slavish adherence to formalism” and as “compromising substance” (para 55). But the minority may not have been entirely convinced of its own position: it veered from asserting confidently that the use of legality was “the proper route to take in this case” (para 68) to the weaker claim that it would be “in the public interest to allow SITA to vindicate … the principle of legality and not to thwart it by procedural technicalities’ (para 70). And that claim had a hollow ring in any event, for on the majority view SITA’s true reason for going to court was not to vindicate legality but the dishonourable and self-interested one of avoiding arbitration of a dispute about payment (para 39). The majority aptly quoted Boonzaier’s observation [Leo Boonzaier ‘Good reviews, bad actors: The Constitutional Court’s procedural drama’ (2015) 7 CCR 1] that officials are capable of acting “antithetically to the rule of law even as they purport to assert legality”’. A noteworthy feature of Gijima is the absence of any reference to Albutt and Motau (Hoexter (op cit)).

Professor Hoexter (op cit) wrote this prior to the matter being heard in the CC. It is, however of material significance, because the SCA’s ruling is in line with New Clicks and I believe it to be correct. However, Gijima at the CC (State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) takes a completely unfounded turn around to the New Click principle and to what the SCA held. The court rules that PAJA is not applicable here. Another example of bypassing legislation. The court’s reasoning is as follows:

The ‘everyone’ referred under s 33(1) (Bill of Rights) does not include the state. Moreover, s 33(3)(b) specifically provides that ‘national legislation must be enacted to give effect to these rights, and must … impose a duty on the state to give effect to the rights’ provided under s 33(1) and (2). The state cannot be a beneficiary of the rights and bearer of the corresponding obligation that is intended to give effect to this right (see para 27). Put differently, from whom would an organ of state (whose own decision is the subject of its concern) expect lawful, reasonable and procedurally fair administrative action? From whom could it request reasons?

The court, therefore, concluded that an organ of state does not have a choice. If it would like to have its own decision reviewed: PAJA is simply not available, and it must proceed by relying on the principle of legality.

Professor Cora Hoexter in her 2019 Advanced Administrative Law class at the University of the Witwatersrand, which I attended, criticised the CC’s judgment on the following basis:

‘I don’t believe the state should have interest that does not coincide with public interest! Therefore, the state should be able to bring a review in terms of PAJA in the interest of the public!’

Therefore, I conclude that Gijima is but another example of bypassing PAJA.

I do not believe it is necessary for me to list every single case in which PAJA was bypassed, these are many. I have already demonstrated above that the courts simply avoid PAJA.

I am not in favour of PAJA for the reasons I have mentioned above. I believe it is a poor piece of legislation that not only sends innocent parties packing, but does not give effect to s 33 of the Constitution. I believe the drafters failed to apply their mind to the matter when drafting the Bill as well as I believe parliament failed to apply their minds to the matter when enacting it. However, this article is not about this issue. I am stating this purely because I want it to be clear that it is with a heavy heart, I conclude that avoidance of PAJA is not justified or at least correct. The fact that difficult questions arise, does not seem a sufficient reason for avoiding PAJA.

The principle of legality is obviously an important development in the court’s jurisprudence. PAJA both explicitly excludes executive and legislative decisions, as well as other important exercises of public power (Motau), from its ambit. Added to this, the legislation presents courts with the difficult task of deciding what constitutes ‘administrative action’. The possibility that significant decisions of public authorities are unreviewable is unthinkable, and so the principle of legality fills a potential gap of accountability. PAJA it seems will never be brought in line with s 33 of the Constitution purely because of the way our courts have interpreted the meaning of ‘administrative action’.

I believe the right thing to do in future cases is to argue that PAJA is not in line with s 33 of the Constitution. It will be no easy task.

In the recent case of Walus v Minister of Justice and Correctional Services and Others 2023 (2) BCLR 224 (CC) the court held at para 33:

‘The decision of the High Court in respect of which the applicant applies for leave to appeal relates to a review application under the Promotion of Administrative Justice Act  (PAJA) – which gives effect to section 33 of the Constitution. This renders this matter a constitutional matter. Accordingly, this court has jurisdiction.’

While for the purposes of jurisdiction that may be so, this type of assumption holds little weight in light of the courts and especially the constitutional court defining ‘administrative action’. It is, therefore, highly doubtful to state that PAJA gives effect to s 33 of the Constitution.

Igor Szopinski LLB, Cert. Adv. Inter. Trade Law, PGDip (Wits) is a legal practitioner at Lusenga Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2023 (April) DR 17.

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