Administrative law is a critical area that governs the power exercised by administrative bodies and officials. In reviewing administrative action, the courts rely on specific grounds and avenues to determine whether the action taken by an administrator was lawful, reasonable, and fair. This article examines the grounds of review and avenues for scrutinising administrative action in South Africa, focusing on the rules and paths set out in the Promotion of Administrative Justice Act (PAJA) and other relevant legislation.
Grounds of Review
The grounds of review provide the framework for determining whether an administrative action was lawful, reasonable, and fair. In South Africa, the grounds of review are codified in section 6(2) of PAJA, which sets out specific mistakes an administrator can make when taking action. These grounds of review include illegality, procedural unfairness, irrationality, unreasonableness, and other unconstitutional or unlawful action.
However, the structure of section 6(2) of PAJA is not logically organised, and there is some overlap between the different grounds. Ideally, the grounds of review should align with the three main pillars of administrative justice: lawfulness, reasonableness, and procedural fairness. Despite this limitation, the courts have used the grounds of review to scrutinise administrative action and ensure compliance with the principles of administrative law.
Avenues to Review
Several avenues are available for reviewing administrative action, depending on the type of action taken and the legislation governing it. These different pathways to review administrative action have resulted in some fragmentation of judicial oversight of administrative action in South Africa. The following are the different avenues to review available in South Africa:
- Review under PAJA: This is the most common avenue for reviewing administrative action. It applies to actions taken by public bodies and officials that qualify as administrative action as defined in PAJA.
- Review in terms of particular statutory provisions other than PAJA: In some cases, the action may qualify as an administrative action, but for policy reasons, it is reviewed along a separate avenue from PAJA. For example, decisions of the Commission for Conciliation, Mediation, and Arbitration (CCMA) may qualify as administrative action under PAJA. Still, they are reviewed in terms of the Labour Relations Act (LRA) and not in terms of PAJA.
- Review in terms of the constitutional principle of legality: This applies when the action is public, but it does not qualify as administrative action as defined. In such cases, the challenge is mounted under section 33 of the Constitution, relying on the principle of legality.
- Review directly in terms of section 33 of the Constitution: This applies when the action may qualify as an administrative action, but the challenge is mounted at either PAJA itself or another statutory provision rather than the action.
- Review in terms of the common law: This applies in cases of private actions that do not qualify as administrative action as defined but that were subjected to administrative law principles at common law. This includes cases where private bodies such as voluntary associations act to discipline members.
Administrative law provides the framework for scrutinising administrative action, ensuring that it adheres to the principles of lawfulness, reasonableness, and procedural fairness. The grounds of review and avenues to review provide the rules and paths for reviewing administrative action, depending on the type of action taken and the legislation that governs it. While there is some fragmentation in the system of judicial oversight of the exercise of different forms of power, the courts have recognised the importance of ensuring compliance with the principles of administrative law, irrespective of the avenue used to challenge the action.
If you feel there has been an administrative action that was unlawful, unreasonable or unfair, contact an expert at Schoemanlaw for assistance.