Administrative Law In South Africa

Getting a Judicial Review Right: The PAJA Roadmap

If you are filing a review application under the Promotion of Administrative Justice Act 2 of 2000, the first thing most people get wrong is they treat PAJA as a general remedy for every bad government decision. It is not. It only applies to administrative action as defined in section 1 of the Act, and getting that threshold right determines whether your application gets dismissed at the gateway or proceeds to substantive merits. I spent about eight years doing public law work before I stopped second-guessing myself on jurisdictional questions. The main issue you will run into is that not everything a state organ does is reviewable. A policy decision by the National Treasury is political, not administrative. A police officer using discretionary force at a crime scene is exercising a common-law or constitutional power, not administrative action. But a licensing department refusing your application because the form was missing a signature? That is administrative action, plain and simple.

Administrative Law In South Africa

PAJA gives effect to the constitutional right to lawful, reasonable, and procedurally fair administrative action under section 33 of the Constitution. Section 6 lists the grounds of review, and they fall into three buckets: procedural fairness failures, substantive irrationality, and ultra vires decisions. The leading case is Pharmaceutical Manufacturers, which confirmed that reasonableness here means the classic Associated Provincial Picture Houses standard adapted to South African circumstances. Later cases like Minister of Health v New Clicks and Khosa v Minister of Social Development fleshed out the procedural side significantly. Here is something beginners consistently miss. You do not need to prove the decision was wrong on the merits to get it reviewed. You need to prove it was unreasonable or procedurally unfair. A decision can be substantively correct and still fall apart because the official who made it failed to give you a meaningful opportunity to be heard, or considered irrelevant factors, or ignored relevant ones. I have seen applications fail on this distinction repeatedly because applicants spent all their time arguing the outcome was unjust rather than the process being flawed. The practical workflow for a PAJA review goes like this. First, obtain the record. Section 6(1) requires you to exhaust internal remedies unless it is unreasonable to expect that. Then request the record from the relevant organ under PAJA itself or under the Promotion of Access to Information Act 2 of 2000. The record usually includes the motivation, the underlying investigation file, correspondence, and the formal decision notice. Without the record, you cannot properly plead irrationality on relevant and irrelevant factors.

Second, identify the precise administrative action. Pinpoint the decision maker, the date, the statutory basis, and the nature of the power exercised. This sounds basic but most rushed applications conflate a policy announcement with a concrete adverse decision affecting a specific person. They are different things legally. Third, map the grounds of review against section 6(2). If you are relying on procedural unfairness, check whether the procedure was prescribed by legislation or whether fairness itself demands a hearing. If you are alleging irrationality, you need to show the decision was one that no reasonable decision maker could have reached given the facts and law before them. The Transhex and RxRNA line of cases sets a high bar here. Courts give significant deference to executive and administrative discretion on matters of policy, resource allocation, and technical evaluation. I had a client once whose building plan approval was refused by a municipal engineering department. The refusal letter cited three vague grounds without any reference to the relevant zoning scheme provisions or the engineer's own site inspection report. I initially framed this as a procedural unfairness matter, but the real issue was that the municipality had failed to give adequate reasons under section 6(2)(e). The workaround was to approach for compulsion of reasons first under section 6(1), which forced the municipality to produce the engineer's assessment. Once we had it, we could see the refusal rested entirely on an internal guideline that had never been properly promulgated as a by-law. That turned the case from a reasons complaint into an ultra vires challenge, which we then litigated successfully. Going straight to substantive review without the compulsion step would have left us guessing at the real defect.

There are bottlenecks you should know about. PAJA review applications have strict time limits. Section 7 reads with the Superior Courts Act 74 of 2013 generally requires you to approach the court within 180 days from when you became aware of the decision, though the Prescription Act can sometimes apply differently depending on the nature of the relief. Delays in obtaining the record can eat into your timeframe if you are not careful. Some departments take weeks to compile records, and while you can approach for compulsion, that adds time you may not have. Another limitation is that PAJA does not cover all state conduct. When an executive function is involved, such as national security decisions or high-level policy formulation, the courts routinely find no administrative action exists and dismiss the application at the threshold. In those cases, you may need to rely on the Constitution directly or seek interdictory relief through common-law principles rather than a PAJA review. The Allocation of Land cases illustrate this boundary clearly. If you are representing yourself, the biggest practical difficulty is pleading. You must particularise each ground of review with specificity. General allegations of unfairness will not survive a bare facts plea. Cite the specific provision of the enabling legislation that was supposed to govern the procedure. Identify the exact factor the decision maker considered or ignored. Reference the pages of the record where the defect appears. A well-drafted founding affidavit in a PAJA matter typically runs 40 to 80 pages because the details matter at this level.

For practitioners, a useful shortcut is checking whether the relevant enabling legislation contains its own appeal or review mechanism. If it does, that mechanism usually must be exhausted before PAJA kicks in. The BellKemp principle means PAJA is a backstop, not a first resort, when a statutory route exists. I once lost a day of preparation time on a case because I filed directly under PAJA when the Natal Midlands Local Municipality's own by-law provided a formal appeal procedure that had not been used. The court dismissed the application without prejudice, which was frustrating but predictable. The down side of PAJA as a framework is that it creates a lot of threshold litigation. Applicants and respondents spend more time arguing over whether something is administrative action at all than on the actual merits. The Constitutional Court tried to narrow this with Minister of Justice v Xaba and later decisions, but the doctrine remains contentious. If you are dealing with a quasi-judicial function, like a tribunal hearing, you might be better placed under the common-law principles of justice administered by tribunals rather than forcing everything through PAJA. The lines between the two tracks are not always clean. Practical tip on costs. PAJA reviews are expensive because of the record disclosure process and the need for specialist affidavit drafting. If the review succeeds, costs usually follow the result, but if you lose, you can be looking at a significant bill. Consider whether a prompt letter of demand before litigation could resolve procedural defects without going to court. Many municipal and provincial departments will correct a procedural error if you point out the specific PAJA section they violated and give them a reasonable deadline. It saves everyone time and money, even though it is not a formal requirement.

The case law keeps evolving. Recent judgments in the Gauteng Local Division have shown a tendency to be stricter on applicants who delay in seeking judicial review, especially in housing and service delivery contexts where delayed relief can disrupt complex remedial orders. The Supreme Court of Appeal has also been tightening the standard for what counts as irrational, pushing applicants toward stronger evidence rather than speculative challenges. If you are planning to litigate, reading the last five years of decisions from the specific division where you intend to file will tell you more than any textbook summary. There is no single download or template that covers this well because every PAJA application is fact-specific. What works for a cancellation of a tender award will not work for a deportation order or a licensing refusal. The best starting point is the PAJA text itself, the SCA and Constitutional Court judgments I mentioned, and the Uniform Rules of Court as they apply to your chosen division. Beyond that, experience is the only real teacher, and it is a tedious one.