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PAJA
Promotion of Administrative Justice Act, 2000 (Act 3 of 2000)
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ABOUT - Terms l Introduction l Administrative Action l Procedural Fairness l Reasons l Judicial Review
Terms and Concepts
This chapter explains some of the terms and concepts needed to understand the way the PAJA works and what it is trying to do. It explains:
The Constitution
South Africa is governed by the Constitution of the Republic of South Africa, Act 108 of 1996 (the Constitution). One of the most important things that the Constitution does is to make South Africa a "constitutional democracy". This means that the Constitution is the highest law in the country. It contains the Bill of Rights and the rules how government has to function.
All laws and all people (including Parliament, the President, the Ministers, the administration and the courts) must follow and obey it.
The Constitution contains the most important rules of our political system. It sets out what institutions make up the South African State, what their powers are, and how they may use their powers.
The Constitution has a Bill of Rights (including the right to Just Administrative Action) that protects the rights of all people inside the country, and it explains what their obligations and duties are.
The Rule of Law
One of the most important principles contained in the Constitution is the rule of law. To be a constitutional democracy (rather than a dictatorship or a tyranny) the government must act in accordance with the law. This means two things:
- The government (like everyone else in the country) must obey the law; and
- The government can only exercise power over people if the law allows it to.
The Law
If the government must obey the law and can only act when the law allows it to, where is the law to be found?
The sources of law: Legislation and the common law
Legislation
The Constitution is the highest and most important law in South Africa. It has a number of specific legal rules and it gives legislatures the power to make written laws (called legislation).
Although the Constitution is itself legislation (having been passed by Parliament in 1996), all other legislation is subordinate to the Constitution.
This means that legislation will only be valid if it complies with the Constitution.
A lot of legislation is made by administrators. This type of law is called delegated legislation. Very often, an Act of Parliament or a Provincial Act, will set out a broad framework and will give (delegate) the power to an administrator to make rules for the administration of the Act. These rules are known as regulations.
Common Law
This is the law that is not written in legislation, but has been developed by our courts over the last one and half centuries. When a court makes a decision, other courts usually follow this decision when they decide similar cases. In this way, courts develop legal rules.
A legislature can pass a law that overrules or changes the common law. Like all law, it is also subordinate to the Constitution.
The Bill of Rights
Our 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 has to "respect, promote and fulfil" these rights and cannot do anything that goes against these rights.
The particular right that we are concerned with is section 33 of the Bill of Rights, which reads as follows:
Briefly, this means people have a right:
- To fair and reasonable administrative action that is allowed by the law; and
- To be given reasons for administrative action that affects them in a negative way.
The State
The state is the "organised authority" of a country. It manages its public affairs, both inside and outside the country. The state is made up of many organs of state. These can be divided into four separate areas:
1. The legislature. As we've seen, the legislature is made up of Parliament, the nine provincial legislatures and the municipal councils. Their main function is to make law (called legislation) and they must obey the Constitution when doing so.
2. The judiciary. The judiciary is made up of the courts and the judges and magistrates. Their function is to interpret and to enforce the law (including the Constitution).
3. The executive. The National Executive is made up of the President and the cabinet (the ministers). At provincial level, the executive is the Premier of a province and the provincial Executive Council. At local level, the executive is the respective district or municipal council. The executive makes political decisions. It develops policy and writes legislation which it asks Parliament (or the other legislatures) to consider and pass.
4. The administration. The administration does the day-to-day work of government. It is made up of:
- All government departments at national, provincial and local levels;
- The police and the army; and
- The 'parastatals'. These are organisations such as public enterprises and regulatory boards. Examples are Eskom, Telkom and the SABC.
Administrative law
This is the branch of the law dealing with the administration. It is made up of:
1. General administrative law. This is the law that governs the administration in general, by setting out:
- General rules and principles that all administrators must follow; and
- Remedies for people affected by administrative decisions - that is, where administrative powers have not been properly used or where requirements of in the law have not been followed.
2. Particular administrative law. This is the body of law governing specific areas of the administration. For example, the law relating to refugees and immigration, vehicle licensing, state tendering procedures, land-use planning or civil aviation.
The PAJA is part of general administrative law. It applies to and binds the entire administration - national, provincial and local. The PAJA:
- Sets out the general rules for the proper performance of all administrative action;
- 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.
Because the rules in the PAJA are general, they do not give powers to administrators. Instead, the PAJA says how the powers given to administrators by other laws must be exercised.
Before administrators can make decisions that have an impact on another person, they must be allowed to do so by a law. Whether the law allows a particular administrator to make a particular decision depends on the law that applies to that administrator.
Even when administrators have this power, their decisions must also satisfy general administrative law.
Democracy
The Constitution says South Africa is a 'democratic state' founded on the principle (amongst others) of 'democratic government, to ensure accountability, responsiveness and openness'.
The right to administrative justice in section 33 of the Constitution and the PAJA itself is an important part of creating a democratic state.
Democracy has been described as 'government by explanation'. This means that the decisions of government should be explained or justified to the people that they affect.
The right to just administrative action in the Constitution recognises the importance of justification in the following ways:
- 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
- S. 33 (2) gives people the right to be given reasons for administrative action that affects their rights.
Administrators exercise public power. The public has agreed to administrators having power over them but, in a democratic state, administrators are expected to use this power for the public benefit and not for their own private benefit.
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.
Judicial review
Because the government must obey the law it is possible to take the government to court if you believe it has broken any law. The power that courts have to decide whether a government decision is allowed by the law is called judicial review. Once the court has heard both sides, it may decide the government's action was unlawful - that is, the action is not permitted by the law and is therefore invalid.
The 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.
Since 1 October 1997, the South African public service has been guided by a new service delivery approach and framework. This new set of principles guiding the public service is found in the 'Batho Pele' White Paper. These call for a change in systems, procedures, attitudes and behaviour of the public service for the benefit of internal and external customers.
The PAJA, having similar objectives, complements and advances the Batho Pele principles by means of legislation.
The Batho Pele White Paper sets out eight national service delivery principles, which highlight the public service's need to:
- Regularly consult with its customers about the level and quality of services they are receiving and should receive in future;
- Set service standards, setting out the level and quality of services that customers can realistically and consistently expect;
- Increase access to services, especially to those people who experience barriers to access (such as their race, gender or disability; where they live; how much money they have; their access to modern communication systems; their culture and so on);
- Ensure higher levels of courtesy by setting out and sticking to standards of behaviour for the treatment of customers;
- Provide more and better information about services, so that customers have full, accurate, relevant and up-to-date information about the services that are available and that they are entitled to receive;
- Increase openness and transparency about how services are delivered, how well they perform, the resources they use and who is in charge;
- Remedy failures and mistakes, so that when problems occur, there is a positive response and problems are sorted out; and
- Give the best possible value for money, so that customers feel that the money they contribute to the state (through various forms of taxes), is used properly and that any savings are used to improve service delivery further.
We need Batho Pele because many of our national and provincial departments are still using outdated systems and procedures that were not designed to put the needs of the people first. Batho Pele is therefore about ensuring that the resources we already use to run the Public Service are geared towards delivering quality services. It is about getting rid of wasteful and expensive internal procedures and using the money saved to provide better services to more people. It is about making sure that the state's priorities for where money should be spent are in line with the public's priorities.
Many improvements that the public would like to see cost nothing - a smile, treating customers with respect, being honest with customers when giving information, and apologising if things go wrong. These are really about adopting different (and better) standards of behaviour.
Batho Pele is not only about putting 'the customer' first. It is also about giving the people who serve the customer - the front-line staff - a major role in the new public service. Front-line staff, whether serving the public directly or providing services to other parts of government, are often best placed to tell managers what needs to be done to improve services for both internal and external customers. Front-line staff and those who support and manage them now have the opportunity to have their say about how to change and streamline systems and procedures that often get in the way of providing a good service.
