The convoluted and oddly restrictive definition of “administrative action” in section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) continues to vex practitioners and the judiciary alike.
This has led to many decisions of a seemingly administrative nature, but which fall outside the narrow scope of the section 1 definition in the PAJA, being reviewed against the principle of legality.

Legality is essentially a component of the rule of law, as recognised in the preamble to the Constitution, in terms of which the exercise of public power is only legitimate where it is lawful and where a rational relationship exists between the exercise of the power and the purpose for which the power was given.

While this has, to the relief of many, provided a safety net to allow for the judicial review of the mass of decisions falling outside the parameters of the PAJA definition of administrative action, it has also resulted in the advent of a perplexing scenario in which decisions of an administrative type, depending on whether or not they are subject to the PAJA, stand to be scrutinised against different standards and requirements.

This conundrum is well highlighted by the decisions of the Supreme Court of Appeal in the cases of Chairpersons’ Association v Minister of Arts and Culture and Others 2007 (5) SA 236 (SCA) and Democratic Alliance v Ethekwini Municipality (887/2010) [2011] ZASCA 221 (30 November 2011).

Both cases concerned the review of geographical name changes, the recent focus of considerable nationwide interest and debate, with the former relating to a decision to change the name of the town “Louis Trichardt” to “Makhado” and the latter to a decision to change various street names in Durban. Despite the similar subject matter, the decision forming the subject of the Chairpersons’ Association case, which was initiated by the local municipal council for subsequent endorsement by the South African Geographical Names Council (SAGNC) and formal approval by the Minister, was found to constitute administrative action under the PAJA, whereas the decision in the Democratic Alliance case, which was taken by the local municipal council itself, was not regarded as constituting administrative action and was, hence, reviewed under the principle of legality. This strange dichotomy is amplified by the fact that both decisions were initiated by the relevant local municipal councils and subject to the policies and principles of the SAGNC, as provided for in terms of the South Geographical Names Council Act 118 of 1998. The only notable difference between the decisions lies in the fact that the authority to change town and city names, amongst others, resorts with the Minister of Arts and Culture following recommendation by the SAGNC, while the authority to change street names rests with municipalities themselves.

Although there were clear reasons for the Court’s categorisation of the decisions under review, motivated primarily by section 1 of the PAJA’s exclusion of the executive and legislative functions of municipal councils from the definition of administrative action, this is not an inconsequential distinction, as, although the PAJA expressly recognises procedural fairness as one of the essential elements of a legitimate administrative decision, our courts have not yet officially acknowledged procedural fairness as an independent component of the principle of legality. In effect, a decision by the Minister of Arts and Culture to change a town name would be subject to entirely different procedural requirements to a decision by a municipal council to change street names.

Without the benefit of the PAJA, the Court in the Democratic Alliance case was constrained to rationalise that the name changes in question, although not administrative action per se, were nonetheless required to have followed an acceptable procedure. Relying on select provisions of the Constitution and the Local Government: Municipal Systems Act 32 of 2000 , the Supreme Court of Appeal identified an implied duty on municipalities to “establish appropriate mechanisms to so as to enable local communities to participate in municipal affairs”. However, unlike with the PAJA and the Rules of Procedure for Judicial Review of Administrative Action of 2009, which establish clear requirements to be adhered to in order for procedural fairness to be upheld, there was no such content to the broad procedural duties owed by the municipal council in casu. Therefore, in determining whether or not the municipality had discharged its duty to facilitate public participation, the Court found the enquiry to be one of whether the council had acted reasonably in facilitating public involvement and, specifically, whether it complied with its own rules in this regard. In so doing the Court gave content to the duty to ensure public participation, which is significantly less clear than the standards of procedural fairness established under the PAJA, by linking this to one of the established tenets of the principle of legality.

The Supreme Court of Appeal’s reasoning in the Democratic Alliance case mirrors the approach of the Constitutional Court in the case of Albutt v Centre for the Study of Violence and Reconciliation , in which the observance of particular procedural requirements was found to be a matter of rationality, the second element of legality. Procedural fairness was, hence, indirectly recognised as a sub-component of the principle of legality in such circumstances where it is required to ensure lawfulness or rationality.

These matters highlight the practical difficulties presented by the narrow definition of administrative action under the PAJA, and the necessity for our Courts to continue developing the principle of legality so as to incorporate procedural fairness as an independent element of legality, alongside those of lawfulness and rationality. For now, however, the PAJA and the principle of legality do not overlap entirely and litigants seeking to set aside decisions due to a lack of procedural fairness would be wise to first endeavour to formulate their matter in terms of the auspices of the PAJA and, as an alternative, to establish a duty on the part of the decision maker to uphold procedural fairness as an essential prerequisite of its adherence to one or both of the currently recognised elements of legality.

Written by Andrew Molver – Commercial, Property and Litigation Department, Adams & Adams