PAJA

Promotion of Administrative Justice Act, 2000 (Act 3 of 2000)

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What is an administrative action?

The first question we need to consider is, which actions of administrators are governed by the PAJA and which are not?

The short answer is that the PAJA deals with 'administrative action'. But what does this mean? Section 1 of the PAJA gives a complicated definition of 'administrative action' that can be summarised as follows:

a. "a decision"
The PAJA says administrative action is limited to:

• a decision; or
• a failure to take a decision.

Failing to make a decision can have a major negative effect (it can "adversely affect") someone's rights. An example would be failing to make a decision when someone applies for a passport, since the Constitution gives every citizen the right to a passport. (See section 21 (4) of the Constitution).

b. "that is of an administrative nature made in terms of an empowering provision"
Not every decision a member of the administration takes is "of an administrative nature". Deciding what to have for lunch or what to do after work are obviously not. But decisions that administrators take as part of their job are of an administrative nature.

However, not all of these decisions are administrative actions. To be an administrative action, a decision must be:

• Of an administrative nature;
• Taken by an administrator;
• In terms of an empowering provision.

An empowering provision is usually a provision of a law that allows an administrator to make a decision.

c. "that is not specifically excluded by the AJA"
The PAJA excludes some of the actions of particular organs of state from the definition of administrative action - and these are therefore not governed by the Act. Most of these actions are governed directly by the Constitution and have their own specific rights, procedures and remedies.

These include:

• Policy decisions of the executive;
• The making of legislation by Parliament, a provincial legislature or a municipal council; and
• The exercise of judicial functions by the officers of courts and some other bodies.

The PAJA also excludes decisions taken under the Promotion of Access to Information Act (Act No. 2 of 2000) to either allow or deny access to information. The Promotion of Access to Information Act has similar but more detailed rights, procedures and remedies that the state must follow when dealing with a request for information. It was passed to "give effect to" the right of "Access to Information" in Section 32 of the Constitution. It allows the public access to information held by the state and to information held by another member of the public if that information is needed to protect one's rights.

d. "by an organ of state"
As we have seen, "organs of state" include departments at national, provincial or local government level. In Section 239 of the Constitution, organs of state also include "functionaries or institutions exercising a power or performing a function in terms of any legislation", such as universities.

e. "that adversely affects rights"

To be an administrative action, the decision taken must adversely affect rights. What does this mean?

Adversely
This means that the decision must impose a burden or have a negative effect. This includes decisions that:

• Require someone to do something, to tolerate something or not to do something;
• Limit or remove someone's rights; or
• Say someone does not have a right to something. This is called an "adverse determination of a person's rights".

A beneficial decision (one in someone's favour) would therefore not be administrative action.

Affects
There are two ways that a decision can affect a person's rights:

• The decision could deprive a person of their existing rights. For example, where an administrator decides to withdraw a license that a person already has; or
• It could affect a person's right by determining what those rights are. An example is where someone applies for a license and the administrator decides not to grant it. Here, the decision means the person will not get the rights that go along with the license.

The PAJA uses the term in both of these senses. In other words, decisions that deprive someone of rights, and those that determine what that person's rights will be, are both "administrative action".

Rights
Rights are understood in law as when one person has a right to claim something against another person and that other person has a duty to do something.

Rights can be the rights granted by the Bill of Rights, by contract or by legislation. Rights can even be created by a promise of an administrator.

f. That has a 'direct external legal effect' This phrase has three components - a decision must have a legal effect, the effect must be direct, and it must be external.

This is another way of saying that to qualify as administrative action, decisions must have a real impact on a person's rights.

Legal effect
This means that a decision must be a legally binding determination of someone's rights or obligations. In other words, a decision must establish what someone's rights or obligations are, or must change or withdraw them.

Direct effect
This means that the decision must be a final one. If the making of a decision requires an administrator to take several steps or decisions, and only the last step effects a member of the public, then only the last step is said to have direct effect. In such a case, only the last step is an administrative action and can taken to court for judicial review.

External effect
This means that the decision has to affect someone who is not a part of the organ of state. This will be the case even where people within such an organ of state (such as public servants, students or prisoners) are concerned if they are affected in their individual rights - that is, not through measures that are part of the daily business of the organ of state.

The word 'external' should therefore not be interpreted literally. Even people within an organisation are included by this term if their rights are affected because of the decision.