Administrative law

The branch of public law which concerns the judicial review of administrative action.

General description

Administrative law is the branch of public law which concerns the judicial review of administrative action. It governs the administration in general, by:

  • setting out the general rules and principles that all administrators must follow; and
  • providing remedies for people affected by administrative decisions – that is, where administrative powers have not been properly used or where requirements of the law have not been followed.

Subfields

  • Judicial review
  • Access to information

Legislation

  • The Constitution of South Africa and the Bill of Rights
  • Public Finance Management Act, Act No. 1 of 1999
  • Promotion of Access to Information Act, Act No 2 of 2000 (“PAJA”)
  • The Promotion of Administrative Justice Act, Act No. 3 of 2000 (“PAIA”)

Case Law

The matter of Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) concerned an action for damages in delict by the appellant, the liquidator of Balraz Technologies (Pty) Ltd (Balraz).

The applicant was liquidator of a company to which the respondent had awarded a tender to supply certain government services. The award was subsequently set aside on review on the ground that it had been made negligently.

The applicant then claimed damages in delict from the respondent in respect of its out-of-pocket expenses incurred consequent upon the award of the tender. The wrongfulness of the respondent’s award, it contended, consisted in the breach by the respondent of the duty of care owed by the respondent to the applicant in evaluating and awarding the tender.

The Supreme Court of Appeal held that the applicant had no cause of action because the respondent had not, as a matter of public policy, acted wrongfully, i.e. it declined to develop the common law to allow the applicant to recover damages in delict for pure economic loss sustained as a result of a negligent but bona fide award of a tender. In an application for leave to appeal and on appeal to the Constitutional Court the applicant contended:

a) that the invitation and consideration of tenders by the respondent was an administrative function;

b) that the respondent owed the applicant a legal duty to ensure that the tender process was administratively just;

c) that the respondent had breached its duty to the applicant and violated the applicable constitutional principles when it negligently but bona fide awarded the tender to the applicant; and

d) that in the circumstances the common law ought to be developed to hold the respondent liable to the applicant for damages in delict.

The Court held that:

1. an administrative act that breached a statutory duty was necessarily wrongful in the delictual sense only where there was a legal duty to prevent the loss to the plaintiff, and that such a duty existed only where called for by policy considerations of fairness and reasonableness;

2. the empowering Constitutional provisions and the governing statute neither granted nor implied the grant of a right of action for damages in delict to the initially successful tenderer flowing from an improper but bona fide award of the tender;

3. that the initially successful tenderer had other remedies: it could tender again or could negotiate the recovery of its out-of-pocket expenses from the tender board;

4. there was no justification for developing the common law to embrace a claim for damages in delict by the initially successful tenderer since:

4.1 it had been established that an unsuccessful tenderer who incurred a financial loss had no remedy in delict and there was no reason to distinguish between his position and the position of the initially successful tenderer who incurred out-of-pocket expenses, i.e. the common law should not be developed to grant the latter a remedy in delict where the former had none;

4.2 there was no need to grant the initially successful tenderer a remedy in delict, as the out-of-pocket loss could be avoided and it could also re-tender;

4.3 there were thus no public policy considerations and no constitutional values which justified adapting or extending the common law of delict to recognise a right of action by an initially successful tenderer who had incurred financial loss on the strength of the award which was subsequently set aside on review;

4.4 that the respondent had not owed the applicant a duty of care:

4.4.1 public policy considerations required that adjudicators of competing tenders be immune from damages claims in respect of their negligent but honest decisions;

4.4.2 the legislation governing tender boards was aimed primarily at protecting the public interest, as opposed to the interest of individuals or groups;

4.4.3 imposing delictual liability on the negligent performance of functions of tender boards would open the gate to claims by initially successful tenderers whose claims were subsequently set aside by court order, which would ultimately be to the detriment of the public at large;

4.5 accordingly, that since the respondent had not owed the applicant a duty of care, its conduct in awarding the tender was not wrongful.

Frequently asked questions

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What is judicial review?

Judicial review is a court process used to enforce the principle of legality and the right to just administrative action.

PAJA’s purpose is to give effect to the right to just administrative action in the Constitution and the Bill of Rights which provide that everyone has the right to fair, lawful and reasonable administrative action and to reasons for administrative action that affects them negatively.

PAJA sets out the procedures and grounds for challenging a particular type of government action – administrative action. If someone feels that a decision by an administrator is unlawful, unreasonable or that fair procedures were not followed, they can approach a court for judicial review of the decision.

PAJA states that administrators must follow fair procedure procedures when making decisions which includes allowing you an opportunity to have your say before taking any decision that might negatively affect your rights, clearly explaining the decisions they take, advising you of any internal appeals within their department and, if there are none, advising you that you that you can ask a Court to review the decision and advising you that you may ask for written reasons for the decision.

Judicial review is often utilised in procurement tenders where it is believed that an unfair process was followed and an unsuccessful tenderer wishes to challenge the awards made by the decision makers or procurement committees.

A judicial review application is usually accompanied by an interdict that seeks to prohibit the implementation of the awarded tender pending the outcome of the review.

In the event that the award of the tender is reviewed and set aside, the implementation of the project is often delayed as the Court may order that the tender process must start afresh.

What is administrative action?

The administration is made up of all government departments, the police and the army, parastatals (e.g. ESKOM, Telkom and the SABC) and any decision the administration takes that affects people’s rights is an administrative action.

Why do you need PAJA?

PAJA gives you a chance to tell your side of the story before any decision is taken. Once a decision is taken, it lets you find out why the decision went against you. In this way, the PAJA makes sure you know why the administration has done what it has. It also makes sure that decisions are taken properly. Lastly, it makes sure you can challenge decisions that were not taken properly.

What constitutes a "fair procedure"?

Before taking a decision, administrators must:

  • Tell anyone whose rights will be affected what they plan to do; and
  • Allow these people enough time to reply.
  • After taking a decision, administrators must give anyone whose rights have been affected:
  • A clear statement of what they decided;
  • Notice of any right to review or internal appeal; and
  • Notice that they can request reasons for the decision.
  • Although they don’t have to, in some cases administrators can also:
  • Assist people whose rights will be affected;
  • Allow them to be represented by a lawyer; and
  • Allow them to challenge any arguments or evidence that goes against them (either in writing or in person).
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What role do the Constitution and the Bill of Rights play in administrative action?

The Constitution contains the Bill of Rights and the rules for how government has to function. The Constitution grants the right to fair and reasonable administrative action that is allowed by the law and to be given reasons for administrative action that affects a person in a negative way.

The Constitution contains a Bill of Rights (in Chapter 2). The Bill of Rights protects the rights of all people in South Africa, not only citizens. The state is obliged to “respect, promote and fulfil” these rights and cannot do anything that goes against these rights.

The particular right concerned with administrative law is section 33 of the Bill of Rights, which reads as follows:

  • Section 33(1) provides a right to ‘reasonable’ administrative action that is ‘procedurally fair’. For example, a decision affecting someone should not be made before hearing what that person has to say; and
  • Section 33(2) gives people the right to be given reasons for administrative action that affects their rights.
  • Decisions must be made (and must be seen to be made) impartially. By requiring reasonable and procedurally fair administrative action, section 33 makes sure that their decisions are free from any actual or apparent bias or prejudice.
What role does PAJA play in administrative action?

PAJA:

  • Sets out the general rules for the proper performance of all administrative action (how the powers given to administrators by other laws must be exercised)
  • Says reasons must be given for administrative action in certain circumstances;
  • Requires administrators to inform people about their rights to review or appeal and to request reasons; and

Sets out the remedies that are available if these rules are not followed.

What role does PAIA play in administrative action?

PAIA inter alia gives effect to the Constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights.

The purpose of PAIA is to ensure that people can exercise their constitutional right of access to any information that is required for the exercise or protection of any right and is held by the State and another person.

The motivation for giving effect to the right of access to information is to foster a culture of transparency and accountability in both public and private bodies, and to promote a society in which the people of South Africa have effective access to information to enable them to fully exercise and protect all their rights.

To what information, held by government departments or any public body, can access be obtained?

You may request access to all documentation and records held by any government department, its officials or any other public body. It does not matter when that information came into existence. These include:

  • personal records held by a government department or a public body
  • third party information or records: only with permission from the relevant third party, especially if the documents contain confidential or private information
  • information to which access is not restricted by the Promotion of Access to Information Act
  • the records of Cabinet and its committees
  • records that relate to the judicial function of a court
  • information:
  • obtained by a special tribunal that was established in terms of the law
  • held by a judicial officer of such a court or tribunal
  • held by an individual member of parliament or of a provincial legislature.

PAIA should not be used when:

  • the record is requested to be used in criminal or civil proceedings
  • a criminal or civil proceeding has already commenced.
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