2020/2021 YSAL 72

Administrative Law

Helena van Coller *

1. INTRODUCTION
During the period from July 2020 to June 2021, many cases were decided
about the definition of administrative action and the different pathways
to review. Several issues dealing with procedures and remedies were also
considered by the courts. In the context of the definition of administrative
action, the court paid specific attention to the elements of ‘exercising a public
power or performing a public function in terms of an empowering provision’
and ‘a direct, external legal effect’. The Promotion of Administrative Justice
Act (PAJA)1 imposes standards of lawfulness, procedural fairness and
reasonableness on public power that amounts to administrative action.
Decisions on these issues remain relevant, because exercising these powers
in a manner that fails to satisfy the standards of accountability imposed
by PAJA may lead to these decisions being declared invalid and set aside.
In judicial review proceedings, appropriate remedies under PAJA may be
granted. The particular focus will be on correcting and substitution as a
remedy and structural interdicts will also be considered.
Unless excluded for a specific reason, conduct that amounts to
administrative action is reviewable under PAJA. In some cases, the courts
reviewed decisions through the lens of PAJA, and in others, unfortunately
they did not. The reliance on different pathways to review and the tendency
of the courts to still fail to determine the proper legal basis upon which
to exercise their review jurisdiction, therefore, continue to be relevant. In
terms of the grounds of review, several cases raised issues of procedural
fairness and bias, but in most instances, the courts dismissed these
arguments. In relation to correcting and substitution as a remedy under
PAJA, the courts confirmed that exceptional circumstances are needed to
justify a substitution order under s 8(1)(c)(ii)(aa) of PAJA. Many cases dealt

*
LLB LLM (UFS) LLM (Utrecht) LLD (UJ); Professor, Faculty of Law, Rhodes University.
ORCID: https://orcid.org/0000-0002-8519-7580.
1
3 of 2000.

72

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with the delay rule under the principle of legality in the context of ‘self-
reviews’, where the state seeks to take its own conduct on review. In the
context of the status of unlawful acts, it seems that the Constitutional Court
had provided some clarification.

2. CASES
2.1  ADMINISTRATIVE ACTION
Several cases under review considered whether a particular decision
constituted administrative action in terms of s 1 of PAJA. In Magnificent Mile
Trading 30 (Pty) Ltd v Celliers NO 2 the Constitutional Court accepted that the
relevant decisions (the grant and refusal of prospecting and mining rights)
were administrative action. The Supreme Court of Appeal (SCA) held that
these decisions have the potential to adversely affect rights and that they
are not contractual in nature, but ‘unilateral administrative act[s] by the
Minister or her delegate in terms of their statutory powers’.3
The classification of the conduct of body corporates of sectional titles
schemes is not always that clear. Some cases have classified their conduct as
private in nature,4 whilst other cases have regarded their conduct as public,
like the recent case of BAE Estates and Escapes (Pty) Ltd v Trustees for the Time
Being of the Legacy Body Corporate.5 In BAE Estates, the owner of one of the
units instructed the applicant to find a tenant for his unit. The tenants were
permitted to sublet the unit through Airbnb, which resulted in a stream of
complaints to the second respondent concerning the conduct of these Airbnb
occupants. These complaints were directed to the applicant, in its capacity
as the owner’s agent. The first respondent, the trustees of the Legacy Body
Corporate, took a decision barring the applicant from conducting business in
the sectional title scheme. The applicant then brought an urgent application
seeking the setting aside of the decision on numerous grounds and costs,
to be couched in the form of a rule nisi. The applicant submitted that the
decision amounted to administrative action in terms of PAJA.6 The first
respondent submitted that the decision did not constitute administrative
action, ‘in that it had not exercised a public power nor performed a public

2
2020 (4) SA 375 (CC).
3
Executrix of the Estate of the Late Josephine Terblanche Gouws v Magnificent Mile Trading 30
(Pty) Ltd (unreported, [2018] ZASCA 91, 1 June 2018, available online at http://www.saflii.org/
za/cases/ZASCA/2018/91.html) para 28.
4
See, for instance, Abraham v Mount Edgecombe Country Club Estate Management Association
Two (RF) (NPC) (unreported, [2014] ZAKZDHC 36, 17 September 2014, available online at
https://www.saflii.org/za/cases/ZAKZDHC/2014/36.html); Khyber Rock Estate East Home
Owners Association v 09 of Erf 823 Woodmead Ext 13 CC (unreported, [2007] ZAGPHC 137,
14 August 2007, available online at http://www.saflii.org/za/cases/ZAGPHC/2007/137.html).
5
2020 (4) SA 514 (WCC).
6
Para 14.

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function and that, properly interpreted, the decision did not adversely affect
the applicant’s rights nor have a direct, external legal effect.’7
The court paid closer attention to these two elements of the definition of
administrative action, namely, the requirement of ‘exercising a public power
or performing a public function in terms of an empowering provision’ and
that it has ‘a direct, external legal effect’.8
With reference to the first element, the court relied on factors such as
the statutory powers of the body corporate (the Sectional Title Schemes
Management Act 9) that authorise body corporates to manage and regulate
sections and common property in sectional titles schemes and, for that
purpose, to apply rules applicable to such schemes.10 The court also noted
that many of the rules are ‘coercive or have a disciplinary character’11 in that
many of the owners or occupiers of sections in such schemes ‘have no choice
but to accept this regime if they wish to reside in a sectional title scheme’.12
In relation to the element of ‘a direct legal effect’, the first respondent
submitted that the decision was binding only on owners and occupiers, and
not third parties, such as the applicant in this instance. However, the court
rejected the argument and was of the view that the decision impacts directly
on a party outside that relationship and that it was not limited in its effect
to owners or occupiers of the scheme. ‘It had a direct and significant impact
upon the applicant, a party external to any contractually based arrangements
administered by the body corporate acting through the Trustees.’13 The court
concluded that the decision constituted administrative action as defined in
PAJA and proceeded to review and set aside the decision.14
Another case where the court focused on the element of ‘adversely
affecting rights’ was Msiza v Motau NO.15 VBS Mutual Bank (VBS) was
declared insolvent and bankrupt in 2018 and placed under curatorship.
The Financial Sector Regulation Act16 allows a financial sector regulator to
launch an investigation, and the South African Reserve Bank appointed an
investigator to investigate certain allegations of impropriety at VBS. Msiza
dealt with a report prepared during this investigation by the first respondent
and conducted on behalf of the second respondent, the Prudential
Authority. The report made damning findings and the applicant, one of the
people named in the report, challenged the adverse findings, conclusions

7
Para 15.
8
Para 20.
9
8 of 2011.
10
Para 22.
11
Para 23.
12
Para 24.
13
Para 26.
14
Para 47.
15
2020 (6) SA 604 (GP).
16
9 of 2017.

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and remarks made about him for failing to afford him an opportunity to
be heard during the investigations. He consequently applied for, and was
granted, an order reviewing and setting aside the findings in the report that
reflected adversely on him.
The main issue which the court had to consider was whether these
findings, remarks and conclusions were reviewable on the basis that the
first respondent had made adverse findings against the applicant without
affording him an opportunity to be heard. The applicants relied on both
PAJA and the Constitution.17 It was not entirely clear whether the court itself
relied on PAJA and s  33 or the rule of law.18 For a decision to constitute
administrative action, and for a person to be entitled to the audi rule, the
decision must materially and adversely affect that person’s rights.
Whether investigative decisions will adversely affect someone’s rights
would thus have to be determined, and it would have to be shown that the
decision has a direct, external legal effect. According to Pretorius, a court
will not, as a general proposition ‘entertain review proceedings brought
under PAJA in respect of a pending investigative process unless it is shown
that decisions with direct external legal effect have been made in the
process’.19 He is further of the view that although a decision to undertake
an investigation would ordinarily not have any direct, external legal effect,
it does not mean that ‘an investigative process (even if only a preliminary
process) cannot attract natural justice in certain circumstances’.20 Where
a report has an adverse effect on someone’s reputation through adverse
remarks and conclusions, it has been submitted that the requirement of
‘adversely affecting rights’ would include the right to reputation.21 In Msiza,
the court held that

where an investigator knows or is expected to foresee that his

findings, remarks and conclusions will have consequences for the
party on whose behalf an investigation is conducted and for the party
against whom findings will be made, he is obliged to listen to both
sides and, the party who is likely to be affected by adverse finding is
entitled to demand the right to be heard before an adverse remark or
finding conclusion or decision is made against him or her.22

17
Para 41.
18
Para 54.
19
DM Pretorius ‘Investigations, natural justice and reviewability: Msiza v Motau NO &
another’ (2021) 138(1) SALJ 30.
20
Ibid 31.
21
See C Hoexter and G Penfold Administrative Law in South Africa 3 ed (2021) 318.
22
Para 55.

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The court was of the view that the findings made in the report adversely
affected the applicant.23 Consequently, the court reviewed and set aside
the adverse findings, remarks and conclusions by the first respondent and
declared the failure to afford the applicant the right to procedural fairness
unlawful and unconstitutional.24
The decision of a provident fund to terminate and conclude contracts for
administration services was held not to be administrative action because
the fund was not exercising a public power. This was the case in Moropa v
Chemical Industries National Provident Fund25 where the court held that two
decisions taken by the Chemical Industries National Provident Fund – to
terminate a contract and to appoint a new contractor for the provision of
various administrative and other services – did not amount to administrative
action under PAJA. This was because the fund, in taking these decisions, was
not exercising a public power or performing a public function. The court
went further to state that although the contractual relationship between the
members of the fund was regulated by statute, the Pension Funds Act,26 it
did not change the nature of the relationship. The fund was still acting in
terms of a contractual right.27
In Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd28 the court
confirmed that Eskom’s decision to interrupt electricity supply to a
defaulting municipality for non-payment (contractual default) constituted
administrative action.29 In Staufen Investments (Pty) Ltd v Minister of Public
Works 30 the court held that a decision of the Minister of Public Works to
approve Eskom’s application to expropriate servitudes over private land was
administrative action for purposes of PAJA.31
In Minister of Home Affairs v Public Protector, 32 Plasket JA for the SCA held
that remedial action of the Public Protector did not constitute administrative
action and that these decisions were not of an administrative nature.33 The
question whether a decision of the Auditor-General is administrative action
was considered in MEC for Economic Opportunities, WC v Auditor-General.34

23
Para 56.
24
Para 68. For a full discussion of the deficient factual analysis and differentiation in Msiza,
see Pretorius (note 19).
25
2021 (1) SA 499 (GJ).
26
24 of 1956.
27
Para 46.
28
2021 (3) SA 47 (SCA).
29
Para 90.
30
2020 (4) SA 78 (SCA).
31
Para 46.
32
2018 (3) SA 380 (SCA) paras 36–37.
33
Hoexter and Penfold (note 21) 271 voice some doubts about some of the reasoning offered
by Plasket JA in Minister of Home Affairs.
34
2021 (1) SA 455 (WCC).

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In MEC for Economic Opportunities, the court was faced with an application
for the review of the Attorney-General’s qualified audit of the Western Cape
Department of Agriculture for the years ending 31 March 2017 and 31 March
2018. The Western Cape High Court found that, unlike the Public Protector,
the Auditor-General was purely an institution of public administration; its
function is to administer, and it does not have broad discretionary powers.35
The court held that the decisions of the Auditor-General were administrative
action subject to review under PAJA. The court also noted: ‘If I am incorrect
in this regard, then as in the Public Protector’s case, “the principle of legality
applies to the review of the decisions in issue in this case”.’36 The court
further held that the review enquiry was not limited to an evaluation of
the reasonableness of the Administrator-General’s findings.37 The court
held that the decisions were procedurally unfair and materially influenced
by multiple errors of law.38 The Auditor-General also failed to have regard
to relevant considerations, and had regard to irrelevant considerations.39
The court proceeded to review and set aside the decisions of the Auditor-
General in terms of s 6(2) of PAJA or s 1(c) of the Constitution.40

2.2  PATHWAYS TO JUDICIAL REVIEW

2.2.1 Procurement
Section 217 of the Constitution requires organs of state to procure goods
or services in accordance with a system that is fair, equitable, transparent,
competitive and cost-effective; and provides for the establishment of
a preferential procurement policy by national legislation to promote
previously disadvantaged groups. Our case law has supported the view that
procurement decisions, particularly by organs of state, ordinarily constitute
administrative action.41 Unless excluded for a specific reason, conduct that
amounts to administrative action is reviewable under PAJA.
The chapter on ‘Administrative Law’ in last year’s Yearbook of South
African Law42 emphasised the instances where the courts relied on violations
of s  217 of the Constitution as a pathway to review. In Airports Company

35
Para 17.
36
Para 18.
37
Para 19.
38
Para 166.
39
Para 168.
40
Para 170.
41
See Chairperson, Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd 2008 (2) SA 638
(SCA); Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province
2008 (2) SA 481 (SCA).
42
G Burns, M Murcott and S Payne ‘Administrative Law’ (2021) 1 Yearbook of South African
Law 72ff.

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South Africa SOC Ltd v Imperial Group Ltd (ACSA),43 the Airports Company
issued a request for bids (RFB) for the awarding of various car-rental
concessions at airports. The court was asked to assess the validity of this
decision. The minority found that ACSA’s policy did not comply with s 217
of the Constitution and found the decision unlawful and irrational, both
in terms of PAJA and the principle of legality.44 The majority found that
ACSA’s conduct amounted to a direct violation of s 217 of the Constitution,
and did not refer to PAJA.45 The appeal was thus dismissed with costs. In
AllPay Consolidated Investment Holding (Pty) Ltd v Chief Executive Officer,
South African Social Security Agency,46 the court emphasised that the review
of these decisions should be done through the lens of PAJA, which the court
did not seem to do in Airports Company.
In Afribusiness NPC v Minister of Finance 47 the SCA declared that the
Preferential Procurement Regulations, 2017 were inconsistent with the
Preferential Procurement Policy Framework Act (PPPFA),48 and ruled that
the regulations were invalid. What was relevant for administrative law was
whether the minister’s decision to promulgate the regulation was subject
to review under PAJA. The minister denied that his decision to promulgate
the 2017 Regulations was administrative action that was reviewable under
PAJA.49 The SCA noted that although some argument was initially advanced
as to whether it was a review under PAJA or the principle of legality, it was
accepted that nothing turned on the point. According to the court:

The argument proceeded on the basis that whether or not the

Minister exceeded his powers in promulgating the regulations was
indeed subject to review. As this court observed in Minister of Home
Affairs and Another v Public Protector of the Republic of South Africa: ‘No
procedural differences arise and the grounds of review that apply in
respect of both pathways to review derive ultimately from the same
source – the common law – although, in the PAJA, those grounds have
been codified.50

The court held that the minister’s decision was ultra vires the powers
conferred upon him in terms of s  5 of the PPPFA and concluded that the
appropriate remedy in the circumstances was to declare the 2017 Regulations
to be inconsistent with s 217 of the Constitution and s 2 of the PPPFA, and to

43
2020 (4) SA 17 (SCA).
44
Para 52.
45
Burns et al (note 42) 73–74.
46
2014 (1) SA 604 (CC) para 45.
47
2021 (1) SA 325 (SCA).
48
5 of 2000.
49
Para 7.
50
Para 14, footnotes omitted.

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suspend the declaration of invalidity for a period of 12 months from the date
of the order to enable the minister to take remedial action.51

2.2.2  Legality v PAJA

In determining the legal basis upon which a court has jurisdiction to review
the exercise of power, it is important to first determine whether a decision
constitutes administrative action as defined in s  1 of PAJA. Courts should
thus first determine the nature of the power under scrutiny to determine
the relevant pathway of review. In Mbuthuma v Walter Sisulu University 52
the applicants, two third-year students at Walter Sisulu University, held
an unauthorised event on campus where a cow was slaughtered. They also
broke into the auditorium in breach of the university rules. The university
suspended them from attending academic activities. The applicants then
sought an order setting aside the decision of the university. The applicants
received letters suspending them, and were informed of possible disciplinary
action. They argued that they were not afforded a hearing before they were
suspended, and relied on the principle of legality, and contended that their
suspension was illegal, unlawful and unconstitutional and ‘falls to be set
aside on the grounds that it is irrational, unreasonable and arbitrary’.53 They
further argued that PAJA was not applicable, since there was no exercise of a
public power because of the contractual nature of the relationship between
the parties.54 The court was of the view that ‘the applicants should have
followed the provisions of the PAJA in challenging both their suspension
and the disciplinary hearing. For this reason this application should fail.’55
This view is correct and in line with the view of Plasket J in Minister of
Home Affairs v The Public Protector.56 According to Plasket, if the decision
is administrative actions as defined in PAJA, the application must be
made in terms of s 6 of PAJA, and an applicant for judicial review does not
have a choice as to the pathway of review. The disciplinary hearings and
suspensions were administrative action and should have been challenged
under PAJA.

51
See further the chapter on ‘Public Procurement Law’ and the recent article by P Volmink
and A Anthony ‘A discussion of the recent ruling of the South African Supreme Court of Appeal
in Afribusiness NPC v Minister of Finance’ (2021) 8(1) APPLJ 1–19.
52
2020 (4) SA 602 (ECM).
53
Para 13.
54
Para 26.
55
Para 48.
56
2018 (3) SA 380 (SCA) para 28.

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2.3  GROUNDS OF REVIEW

2.3.1  Procedural fairness
In Staufen Investments, 57 a case relating to the Minister of Public Works’
approval of Eskom’s expropriation application, the appellants argued that
the expropriation decision by the minister was procedurally unfair and
irregular. With reference to s 3(2)(a) of PAJA, the court confirmed that what
constitutes fair administrative action will depend on the facts of each case
and compliance with the requirements in s 3(2)(b) of PAJA.58 The applicable
regulation provided Eskom with a right to reply to the objections of the
appellant, and the question was whether the appellant should have been
afforded an opportunity to reply to Eskom’s reply, based on the requirement
to be provided with an opportunity to present and dispute information and
arguments.59 The court was of the view that PAJA does not recognise such a
right of reply.60 This aspect of fairness remains a discretionary component,
although it forms part of the requirement of a reasonable opportunity to
make representations. In relation to the argument that the appellant was not
given full discovery of all documents, the court issued a reminder that ‘[t]he
principles of natural justice and the right to be heard do not include a right
to discovery of all documents as an automatic feature. It has been held that
the “right to know” does not mean to be given “chapter and verse”.’61
The appellant also contended that there was a reasonable apprehension
of bias on the part of the first respondent and his officials.62 The court
dismissed these arguments and held that the complaints did not support
an inference of bias and that the appellant’s argument that the judge in the
high court was not impartial was without merit.63 The court dismissed the
appeal.
In Associated Portfolio Solutions (Pty) Ltd v Basson64 the SCA had to
consider whether the debarment of a representative and key individual
of a financial service provider (FSP) was lawful, since the debarment
occurred as a consequence of an internal disciplinary inquiry that led to
the representative’s dismissal, and not as a consequence of a fresh separate
enquiry conducted by the then Financial Services Board (FSB). The first
respondent, Mr  Basson, was a director of two companies, both registered
FSPs. He was dismissed by them from his position as an employee and
director in both companies, following a disciplinary process in terms of

57
Note 30.
58
Para 46.
59
Para 52.
60
Para 53.
61
Para 55.
62
Para 72.
63
Para 75.
64
2021 (1) SA 341 (SCA).

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which he was found guilty of misconduct involving acts of dishonesty

that affected his integrity. The appellants then also debarred him from his
position as their representative and key individual in terms of s  14(1) of
the Financial Advisory and Intermediary Services Act (FAIS Act).65 Basson
successfully challenged his debarment in the Western Cape High Court. In
debarring Basson, the appellants relied on the outcome of the disciplinary
process, but the High Court found that the appellants should have held a
separate inquiry. The High Court also found evidence of bias and ulterior
motives.
In the SCA, the appellants challenged the fact that the disciplinary
and debarment processes were separate processes and argued that they
had a duty to debar him.66 Basson submitted that he was not afforded
the opportunity to make representations before he was debarred and he
further claimed bias on the part of his co-directors.67 The question whether
the decision to debar Basson constituted administrative action was not
disputed. The court recognised that the appellants, although private juristic
entities, exercised their authority under the FAIS Act in the public interest
and that the debarment had an adverse impact and direct, external legal
effect on Basson’s rights. The decision was thus reviewable under s 6(2) of
PAJA.68 The court dismissed Basson’s argument that he was not given a fair
opportunity to make representations and held that Basson had clearly been
given a fair opportunity to make representations, as well as having been
given adequate notice of the proposed administrative action.69
The court further held that the facts established in a disciplinary hearing
may be taken into account in a debarment process, and to ‘insist on a further
inquiry in these circumstances would be to place form above substance’.70 In
relation to bias, Basson argued that the decision was motivated by an ulterior
motive, that the shareholders pre-judged the matter, and that they had acted
as judges in their own case. The High Court upheld these arguments,71 but
the SCA rejected these arguments and held that they could not find any
evidence to support the allegations of bias made by Basson, and accepted
that ‘some institutional bias may be present and will be tolerated in respect
of debarment proceedings in terms of the FAIS Act’.72 The court upheld the
appeal.

65
37 of 2002.
66
Para 18.
67
Para 19.
68
Para 25.
69
Paras 28–29.
70
Para 31.
71
Para 33.
72
Para 35.

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2.3.2 Lawfulness
In Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd73 the respondents
argued that the decision (Eskom’s decision to interrupt electricity supply to
a defaulting municipality for non-payment) was in breach of s 6(2)(e)(iii) of
PAJA because, in taking it, Eskom ‘failed to have regard to all the relevant
considerations, particularly the potential damage to the environment
as a result of sources of water being contaminated due to damage to the
municipal water and sewage systems’.74 The court dismissed Eskom’s appeal
on the basis that the planned interruptions of bulk electricity supply failed
to address the underlying reasons for the inability to pay both the arrear
and current debt, and because Eskom ‘failed to take into account relevant
considerations that should have informed those decisions. Accordingly,
the high court cannot be faulted for concluding that Eskom’s impugned
decisions fell to be set aside on this basis too’.75

2.3.3  The distinction between appeal and review: mistake of fact

Despite the warning in Pepcor 76 that the recognition of a material mistake
of fact as a ground of review under PAJA should not blur or eliminate
the distinction between appeal and review, it has been noted that it is
undeniable that the recognition of this ground entails ‘some blurring of the
appeal/review distinction’.77 Some cases are unsuitable for the application
of this ground, as was illustrated in the recent case of South Durban
Community Environmental Alliance v MEC for Economic Development, Tourism
and Environmental Affairs: KwaZulu-Natal Provincial Government,78 where
the distinction between appeal and review was relevant in the context of a
mistake of fact.
In this case, the second respondent, Capital Property Fund Limited
(Capital), applied for and received authorisation from the KwaZulu-Natal
Department of Economic Development, Tourism and Environmental Affairs
(the department) in terms of s 24 of the National Environmental Management
Act (NEMA),79 to construct a logistics park. The appellant opposed the grant
of the authorisation and unsuccessfully pursued an internal appeal to the
first respondent, in terms of s 43 of NEMA. The MEC dismissed the appeal.
They approached the High Court for the judicial review and setting aside
of the decision of the MEC, and for the remittal of the matter to the MEC
for reconsideration. The application was dismissed, and they were granted

73
Note 28.
74
Para 22.
75
Para 91.
76
Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA) para 48.
77
Hoexter and Penfold (note 21) 423.
78
2020 (4) SA 453 (SCA).
79
107 of 1998.

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leave to appeal to the SCA. What was important in this case was that the
appellant had only sought a review of the MEC’s appellate decision and
had not sought a review of the decision of the department granting the
authorisation. Hoexter and Penfold are of the view that where the defect
in both decisions is the same, it makes sense to challenge both decisions
by way of review.80 In South Durban Community Environmental the four
grounds of appeal were identical to the four grounds of review, and the
court was of the view that ‘this may well have been the kind of matter where
both decisions should have been challenged’.81 The SCA pointed out that
the conflation of grounds of review with grounds of appeal gave rise to
difficulties that were compounded by the inherent problems that may arise
in distinguishing between review and appeal proceedings. The appellants
submitted that the department and the MEC ignored facts that rendered
their decisions unsustainable.82 With reference to Pepcor, the court briefly
dealt with the principles of judicial review based on errors of fact.83 The
court then confirmed the present state of the law, with reference to the
dictum in Airports Company South Africa v Tswelokgotso Trading Enterprises CC:

In sum, a court may interfere where a functionary exercises a

competence to decide facts but in doing so fails to get the facts
right in rendering a decision, provided the facts are material, were
established, and meet a threshold of objective verifiability. That is to
say, an error as to material facts that are not objectively contestable
is a reviewable error. The exercise of judgment by the functionary in
considering the facts, such as the assessment of contested evidence or
the weighing of evidence, is not reviewable, even if the court would
have reached a different view on these matters were it vested with
original competence to find the facts.84

The SCA proceeded to consider the merits of the four grounds advanced by
the appellants, but dismissed all four grounds of appeal.

2.4  REMEDIES AND PROCEDURES

2.4.1  Locus standi
In Moropa v Chemical Industries National Provident Fund85 the issue of locus
standi was relevant. The issue was raised whether NBC (the ninth and tenth

80
Hoexter and Penfold (note 21) 752, in support of the view taken by Plasket J in Wings Park
Port Elizabeth (Pty) Ltd v MEC, Affairs, Eastern Cape 2019 (2) SA 606 (ECG).
81
Para 14.
82
Para 11.
83
Para 21.
84
2019 (1) SA 204 (GJ) para 12.
85
Discussed earlier with refence to the definition of administrative action: see note 25.

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applicants, two private companies) had the necessary locus standi to bring
the review application on public law grounds. The NBC challenged the
decision of the board to terminate its contracts. The NBC claimed to act in its
own capacity and in pursuance of its own interest.86 The court then referred
to Giant Concerts CC v Rinaido Investments (Pty) Ltd, 87 where it was stated
that even if an applicant’s standing is questionable, the interests of justice
or public interest may compel a court to scrutinise the action. However, the
court in Moropa highlighted the fact that this was the exception, and that the
rule is still that ‘where a litigant acts solely in his or her own interest, there
is no broad or unqualified capacity to litigate against illegalities. Something
more must be shown.’88 The court then held that ‘the exception applies to a
decision of a public body and not a decision of a private body’.89 However,
Hoexter and Penfold are of the view that private bodies frequently exercise
public powers and that in a constitutional order, ‘this may be too literal an
interpretation’.90

2.4.2 Ripeness
The doctrine of ripeness refers to the fact that a complainant should not
go to court and waste the court’s time when a decision is not yet final or
has not yet been made. The doctrine of ripeness has often been applied in
the context of legality reviews.91 Cases concerning the state’s response to
COVID-19 with reference to administrative law principles were discussed
in last year’s Yearbook,92 including Esau v Minister of Co-operative Governance
and Traditional Affairs.93 However, the case was not discussed in the context
of ripeness.
Esau concerned some challenges to the imposition of various restrictions
in terms of s  27 of the Disaster Management Act 94 as part of the state’s
response to COVID-19, more specifically the National Coronavirus
Command Council’s decision to move the country from ‘alert level 5’ to ‘alert
level 4’ of the lockdown regulations. The SCA dealt with the issue of ripeness
in this context of a policy decision. Plasket JA stated that, as a general rule,
‘policies that have been formulated and adopted by the executive will not
be ripe for review until they are implemented, usually after having been
given legal effect by some or other legislative instrument’.95 He identified

86
Para 30.
87
2013 (3) BCLR 251 (CC) para 34.
88
Para 33 (footnotes omitted).
89
Para 34.
90
Hoexter and Penfold (note 21) 677 n 55.
91
See further Hoexter and Penfold (note 21) 839–842.
92
Burns et al (note 42) 74–75.
93
2021 (3) SA 593 (SCA).
94
57 of 2002.
95
Para 45.

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two principles that are relevant, namely, that for an exercise of public power
to be ripe for review, it should be final in effect, and the decision must
have some adverse effect for the person who wishes to review it. He did
observe that the fact that the conduct involves the formulation or adoption
of a policy does not necessarily mean that it is not justiciable, although
a challenge to a policy before it has been implemented will, generally
speaking, be premature and thus not justiciable.96 He did point out that
‘there are instances, however, in which a policy decision may have the result
that a constitutional infringement is likely to occur, and that a court may, in
order to prevent that apprehended harm, grant appropriate relief before the
policy is implemented’.97
Carte Blanche Marketing CC v Commissioner, South African Revenue
Service 98 dealt with the question of whether a decision to select taxpayers
for audits under the Tax Administration Act 99 should be reviewed in
terms of the principle of legality. The applicants sought the review of the
Commissioner’s decision on the basis that it was unlawful. They abandoned
their reliance on PAJA as a ground of review and the matter proceeded on
the basis of legality.100 The case did address some issues relating to ripeness,
and although the applicants did not rely on PAJA, the court confirmed
that ‘the decision to select a taxpayer for an audit does not adversely affect
the taxpayers’ rights and does not have a direct external legal effect – or
certainly in this instance’.101 In the context of ripeness, the court was of the
view that selecting a person for an audit is merely an investigative process
and nothing more. It is not a decision capable of review yet, and in the words
of the court, ‘simply put, it is not yet ripe for review as it is incomplete’.102
The court suggested that the appropriate avenue for them to challenge
the lawfulness of the decision would be via the Tax Appeal Court.103 This
approach and ripeness arguments, according to the court, also support the
principle of subsidiarity.104 The court dismissed the application.

2.4.3  Correcting and substitution

In Kalisa v Chairperson, Refugee Appeal Board105 the Refugee Appeal Board
rejected the applicant’s application for asylum. He applied for asylum in
2008, and was informed only in 2017 that his appeal to the Refugee Appeal

96
Paras 46–47.
97
Para 47.
98
2020 (6) SA 463 (GJ).
99
28 of 2011.
100
Para 34.
101
Para 61.
102
Para 66.
103
Para 73.
104
Paras 78–82.
105
2020 (4) SA 256 (WCC).

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Board had been unsuccessful. He approached the court for an order setting
aside the impugned decision. He also sought consequential relief under
s 8(1)(c)(ii)(aa) of PAJA by way of an order granting him asylum.
Correcting or substitution has been regarded as an exceptional remedy
and, in Gauteng Gambling Board v Silverstar Development Ltd,106 Heher JA
stated that ‘remittal is almost always the prudent and proper course’.107
There should be exceptional circumstances to justify a substitution order
under s  8(1)(c)(ii)(aa) of PAJA and, according to Khampepe J in Trencon
Construction (Pty) Limited v Industrial Development Corporation of South Africa
Limited,108 the order of substitution must also be just and equitable. This
was confirmed by Binns-Ward J in Kalisa.109 He further outlined the factors
stated by Khampepe in Trencon, namely, that two of the common-law factors
should carry greater weight:

The first is whether a court is in as good a position as the

administrator to make the decision. The second is whether the
decision of an administrator is a foregone conclusion. These two
factors must be considered cumulatively. Thereafter, a court should
still consider other relevant factors. These may include delay, bias or
the incompetence of an administrator. The ultimate consideration is
whether a substitution order is just and equitable.110

In Kalisa, a lot of emphasis was placed on the extraordinary delay in

notifying the applicant of the outcome of his appeal. Hoexter and Penfold
point out that there is some uncertainty as to whether an inordinate delay
is a self-standing basis for granting substitution.111 In Intertrade Two (Pty)
Ltd v MEC for Roads and Public Works, Eastern Cape,112 Plasket J indicated
that the court must have all the necessary information available to make a
relevant decision. In Kalisa, Binns-Ward J confirmed that the delay in the
final determination of the applicant’s application for asylum, by itself, was
not a basis for granting refugee status to the applicant.113 Substitution will
be available only if the court also had sufficient information before it to be

106
2005 (4) SA 67 (SCA).
107
Para 29. See further Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa Ltd 2015 (5) SA 245 (CC) para 42.
108
2015 (5) SA 245 (CC).
109
Paras 18 and 22.
110
Trencon (note 108) para 47; Kalisa (note 105) para 22.
111
Hoexter and Penfold (note 21) 794.
112
2007 (6) SA 442 (Ck) para 43.
113
Para 36.

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satisfied that the applicant qualified for the applicable refugee status under
the Refugees Act.114 This view is also supported by Hoexter and Penfold.115
The case of Eskom Holdings SOC Limited v National Energy Regulator of
South Africa116 and the predecessor of this case, Eskom Holdings SOC Ltd v
National Energy Regulator of South Africa,117 have been discussed in detail.118
Both cases involved a challenge by Eskom against decisions of
the National Energy Regulator of South Africa (NERSA) relating to
electricity tariff increases. Since NERSA had conceded the merits of this
application, the court was asked to determine an appropriate remedy in the
circumstances.119 Where Eskom initially sought the review and setting aside
of the decision and remittal to NERSA for redetermination, it amended its
notice of motion, to ask for substitutionary relief.120 The court granted the
substitutionary relief. The court was of the view that the draft order would
strike a balance between providing just and equitable relief, on the one
hand, and preserving the separation of powers on the other;121 that the court
was in as good a position as NERSA to make the decision;122 that the aspect
of NERSA’s decision that would be substituted was a foregone conclusion
and was not a technical question;123 and that the substitutionary order was
also necessary to avoid undue delay in remedying NERSA’s unlawful act.
The court was satisfied that the substitutionary relief sought by Eskom was
appropriate in the context of the case.124

2.4.4  Structural interdict

A structural or supervisory interdict has often been used where it relates to
the positive duties of the state and has been recognised by our courts.125 The
default remedy for unreasonable delay is usually a mandamus directing the
administrator to take a decision within a stated period. National Adoption
Coalition of South Africa v Head of Department of Social Development for KwaZulu-

114
130 of 1998.
115
Hoexter and Penfold (note 21) 795. See also R Cachalia ‘Clarifying the exceptional
circumstances test in Trencon: An opportunity missed’ (2015) 7 Constitutional Court Review 115
and L Kohn ‘The test for “exceptional circumstances” where an order of substitution is sought:
An analysis of Trencon against the backdrop of the separation of powers’ (2015) 7 Constitutional
Court Review 91.
116
2020 (5) SA 151 (GP).
117
Unreported, [2020] ZAGPJHC 168, 28 July 2020, available online at https://www.saflii.
org/za/cases/ZAGPJHC/2020/168.html.
118
See M Murcott, S Payne and G Burns ‘Administrative Law’ 2020 (3) JQR para 2.4.6.
119
Para 11.
120
Para 12.
121
Para 15.
122
Para 52.
123
Para 53.
124
Para 60.
125
See, for examples, Hoexter and Penfold (note 21) 809 n 845.

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Natal126 dealt with numerous complaints by the applicant in relation to the

systemic delays on the part of the HOD to provide the necessary letter of
recommendation for the finalisation of adoptions. The court accepted that
in not making a decision within a reasonable time, the HOD was failing to
make a decision, which was reviewable under s 6(2)(g) read with s 6(3)(a) of
PAJA.127
The Children’s Act128 did not provide any timeframes relating to the
letter of recommendation. In determining what constituted an unreasonable
delay, the court examined some of the other provisions in the Act which
specified certain timeframes. On an analysis of the facts, the court found
that the right to just administrative action of adoptable children and the
prospective adoptive parents of children who are adoptable was violated by
the delays.129 In terms of relief, the court saw no point in setting aside any
decision or the failure to make a decision by the first and third respondents,
as it would serve to cause more delays in finalising a matter. Accordingly the
court granted a supervisory order, directing the first and third respondents
to make a decision in respect of all outstanding applications ‘within one
(1) month of the order herein, and to report to this court in terms of the
supervisory order appearing hereunder’.130 The court was of the view that
a supervisory order would be justified, given the inordinate delays on
the part of the first respondent to issue letters of recommendation within
a reasonable time. This case illustrates the importance of our courts in
crafting effective, just and equitable remedies as the Constitution requires
them to do where public functionaries fail to comply with their statutory
duties. It also serves as a warning that bureaucratic and unnecessary delays
in decisions by public functionaries may result in the granting of structural
interdicts against the decision-makers and justify cost orders against them.

2.4.5  Self-reviews, the delay rule and Oudekraal

Following the Constitutional Court’s decision in State Information Technology
Agency SOC Ltd v Gijima Holdings (Pty) Ltd131 it is now settled that when an
organ of state takes its own administrative action under review (so-called
self-reviews), the state can no longer rely on PAJA. The conduct must now
be reviewed in terms of the principle of legality. One exception relates to

126
2020 (4) SA 284 (KZD).
127
Para 52.
128
38 of 2005.
129
Para 69.
130
Para 71.
131
2018 (2) SA 23 (CC).

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where the organ of state purports to challenge its own decision in the public
interest.132
In the period under review, the SCA in Compcare Wellness Medical Scheme
v Registrar of Medical Schemes133 had to consider whether an application
brought by the Council for Medical Schemes (Council) to review and set
aside a decision of its own Appeal Board was brought in the public interest,
and was thus reviewable under PAJA, or whether such decision amounted
to an organ of state seeking to review its decision in its own interest, in
which case the principle of legality would govern the review application.134
Compcare Wellness Medical Scheme (Compcare) applied to the Registrar
of Medical Schemes for approval to change its name. The Registrar refused
approval because he was of the view that the new name was likely to mislead
the public.135 The Appeal Board overturned the Registrar’s decision, and the
Registrar and the Council applied to the High Court to review and set aside
the Appeal Board’s decision. The High Court upheld the appeal. In the SCA,
Plasket JA for a unanimous court held that

[w]hen the Registrar and the Council brought their application in the
public interest, they did so in order to safeguard the fundamental
right of each member of the public to just administrative action. That
being so, they stepped into the shoes of the members of the public
on whose behalf they litigated and, in this sense were, despite being
organs of state, bearers of fundamental rights to just administrative
action. The PAJA consequently applies to the review of the Appeal
Board’s decision.136

On the substantive issues, the court held that the Registrar had no lawful
power to approve Compcare’s proposed change of name.137 The court
dismissed the appeal.138
The Oudekraal principle139 has been developed and invoked by the
Constitutional Court in several cases, as authority for the proposition
that defective or unlawful administrative acts remain valid and effective
unless and until set aside by a court on judicial review. However, the court
was often split on the interpretation and impact of Oudekraal, and this has

132
See further Hoexter and Penfold (note 21) 148 and L Boonzaier ‘A decision to undo’
(2018) 135(4) SALJ 642. For a comprehensive discussion of the delay rule under the principle of
legality, see also the cases that were discussed in Burns et al (note 42) 87ff.
133
2021 (1) SA 15 (SCA).
134
Murcott et al (note 118) para 2.2.1.
135
Para 2.
136
Para 20.
137
Para 33.
138
Para 34.
139
Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) para 26.

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created a lot of uncertainty.140 The principle has been expressed by the

Constitutional Court as ‘until a court is appropriately approached and an
allegedly unlawful exercise of public power is adjudicated upon, it has
binding effect merely because of its factual existence.’141
The issue in Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO 142 was
whether the right to a decision in respect of an application for a prospecting
right is transmissible, upon the death of the right-holder, to the applicant’s
heir, and, if so, whether the heir has to take legal action to assert such right
in light of an invalid administrative action that granted a competing right to
another party. The deceased, Mr Gouws, owned a farm and applied to the
Department of Mineral Resources for a prospecting right over his property.
The applicant, Magnificent Mile Trading 30 (Pty) Ltd (Magnificent Mile),
applied for a prospecting right over the same property. The department
erroneously granted a prospecting right in favour of the deceased over
another farm, and granted Magnificent Mile the prospecting right over
the deceased’s property. When Magnificent Mile was refused entry to the
property by the deceased’s family, it approached the court for a review
application, submitting that the right that the deceased enjoyed had
terminated when he died.
The deceased’s heir, Mrs Gouws, opposed the application on the basis
that the deceased’s right was transmissible. She then brought a counter-
application, seeking a declaratory order that the award of a prospecting
right to Magnificent Mile was unlawful as Mr Gouws’ application enjoyed
exclusivity until it was decided. The High Court held in Magnificent Mile’s
favour, and this decision was overturned by the SCA. Magnificent Mile
appealed to the Constitutional Court.
Magnificent Mile argued that the counter-application was out of time as
nine years had elapsed since the department had granted itsr application
for prospecting rights. Relying on the Oudekraal decision, Magnificent Mile
also argued that although the decision to grant prospecting rights had
been unlawful, it has to stand; because it has not been set aside, it exists in
fact and has legal consequences.143 However, the respondents argued that
Mrs Gouws, as the deceased’s heir, did not have to institute proceedings
for the review of the award of a prospecting right to Magnificent Mile and
that she was entitled, instead, to raise the question of the invalidity of the

140
See DM Pretorius ‘When legality and certainty collide: Magnificent Mile Trading 30 (Pty)
Ltd v Celliers NO & others’ (2020) 137(4) SALJ 608–624; ‘Oudekraal after fifteen years: The second
act (or, a reassessment of the status and force of defective administrative decisions pending
judicial review)’ (2020) 31 Stell LR 3 and ‘Confusion and delay: Self-review, functus officio and
Oudekraal’ (2020) 83 THRHR 245.
141
Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) para 147.
142
2020 (4) SA 375 (CC).
143
Para 34.

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Magnificent Mile award as a collateral challenge in her counter-application.

In the Constitutional Court, the majority expressed the Oudekraal principle
very broadly, stating:

As I have said, the Oudekraal rule is not only about instances where
there is a consequent act whose existence depends on an earlier
unlawful act. It applies to any situation where – for whatever reason –
an extant administrative act is being disregarded without first being
set aside.144

Madlanga J for the majority held that at the time of his death, Mr  Gouws
held two rights, his old order limited real right relating to the mineral
deposits concerned and the right to apply, in terms of the Mineral and
Petroleum Resources Development Act (MPRDA),145 for new order title in
respect of those deposits. The court went on to state that the context, in
this case, is different, since Mr Gouws held an unused old order right that
according to the court ‘existed – as a matter of law’, and that right ‘continued
to exist – as a matter of law – after Mr  Gouws had lodged an application
for a prospecting right’.146 The unlawful award of a prospecting right to
Magnificent Mile over the deceased’s property did therefore not wipe out
the pre-existing right that the deceased enjoyed, because the validity of
the deceased’s right neither hinged on nor was affected by the award to
Magnificent Mile. The court also explained why the Constitutional Court’s
judgments in MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a
Eye and Lazer Institute 147 and Merafong City Local Municipality v AngloGold
Ashanti Ltd148 are distinguishable.149
The court found that neither the deceased nor his heir, therefore, had
to take legal steps to assert their right, as contended by Magnificent Mile.
The court rejected Magnificent Mile’s argument and declared that the old
order right of the deceased remained valid, his application for a prospecting
right was yet to be decided, and that the award of a prospecting right to
Magnificent Mile was unlawful.150 Pretorius argues that the Magnificent
Mile decision provides a degree of clarification.151
In another case under review, Airports Company South Africa Ltd v Spain
NO,152 the court also confirmed the fact that state organs are entitled to

144
Para 45.
145
28 of 2002.
146
Para 41.
147
2014 (3) SA 481 (CC).
148
2017 (2) SA 211 (CC).
149
Paras 46–47.
150
Para 67.
151
Pretorius (note 19) 609.
152
2021 (1) SA 97 (KZD).

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raise collateral challenges to their own unlawful decisions. The applicant in

this matter had not sought to review the allegedly unlawful decision, and
therefore the court was of the view that the applicant could not complain
that it was being held to an unlawful agreement.153 The court confirmed that
organs of state are obliged to challenge their own irregular acts by way of
direct review or counter-application (collateral challenge). If they fail to do
so, they cannot complain that they are being held to an unlawful agreement.
In 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority154 the
then Registrar of Securities Services granted licences to two ‘alternative’
exchanges that would compete with the Johannesburg Stock Exchange (JSE):
the applicant (4AX) and the second respondent (ZARX). 4AX approached
the court to set aside the Registrar’s decision to award the ZARX licence
under PAJA. They raised five grounds against the decision.155 In the
main review application, the respondent submitted that the application
should be dismissed for unreasonable delay, as the applicant waited four
months before launching the review application, knowing that ZARX had
already commenced trading.156 The respondents accepted that the review
application was brought within the 180-day period according to s  7(1) of
PAJA, but argued that the application was delayed unreasonably.157 They
also submitted that setting aside the Registrar’s decision at such a late stage
‘would cause serious prejudice to all stakeholders’.158
With reference to Chairperson STC v JFE Sapela Electronics,159 the court in
4 Africa Exchange expressed the view that

[a] review must always be brought within a reasonable time,

which might well in the circumstances of the case, require it to be
brought sooner than the outer-limit. This is to avoid prejudice to the
respondents, and to protect the public interest in reaching finality
on the status of administrative acts, on grounds of pragmatism and
practicality.160

The court found that the widespread prejudice that any delay would cause
made the review application ‘plainly unreasonable and not in the interest of
justice’. Without a satisfactory explanation for the delay, the court was of the
view that the delay should not be condoned and that, on that ground alone,

153
Para 25.
154
2020 (6) SA 428 (GJ).
155
Para 2.
156
Para 65.
157
Para 66.
158
Para 71.
159
2008 (2) SA 638 (SCA) at 650D–E.
160
Para 77.

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the application should be dismissed.161 The court still found it necessary to

address the merits of the main application, but found that the applicants had
failed to establish any grounds for review and dismissed the application.
A court hearing a legality review has a discretion to condone an
unreasonable delay.162 An unreasonable delay was condoned in Valor IT
v Premier, North West Province.163 In this case the Department of Sports,
Arts and Culture in the government of the North West Province awarded
a public procurement contract to the appellant, Valor IT CC (VIT) and a
number of contractual issues arose. The main issues were the lawfulness
of the contractual relationship between the applicant and the respondent,
and whether the department’s delay in bringing its counter-application
was unreasonable, and, if so, whether condonation should be granted. The
department applied to set aside its own decision under the principle of
legality. Under our common law, the application for setting aside the award
of a contract must be made within a reasonable time. The court applied a
two-stage enquiry, namely, determining whether the delay in bringing the
application was unreasonable or not, and if it was unreasonable, whether the
court should overlook the delay and grant condonation. The court noted that
‘whether a delay is unreasonable is a factual issue that involves the making
of a value judgment’ and a range of factors should be considered, such as
‘the length of the delay, the reasons for it, the prejudice to the parties that it
may cause, the fullness of the explanation, the prospects of success on the
merits’.164 In the interests of justice, and in the light of its strong prospects
of success, the court granted condonation and proceeded to deal with
the merits of the case.165 The court held that the contractual arrangement
between VIT and the department was unlawful and dismissed the appeal.166
Another case where the issue of delay under the principle of legality
arose was Altech Radio Holdings (Pty) Ltd v Tshwane City.167 This case revisits
the issues raised where an organ of state brings a review of its own past
decisions. In this case the respondent, the City of Tshwane Metropolitan
Municipality (the City) sought to have its decision to award a tender to the
first appellant, Altech Radio Holdings (Pty) Ltd (Altech), and the conclusion
of certain contracts flowing from that decision, reviewed and set aside. The
City had launched the legality review application more than two years after
the decision to award the tender to Altech. The main issue before the SCA was
whether a municipality’s delay in bringing such a review was unreasonable

161
Para 80.
162
See Burns et al (note 42) 87ff.
163
2021 (1) SA 42 (SCA).
164
Para 30.
165
Para 39.
166
Paras 55–56.
167
2021 (3) SA 25 (SCA).

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or undue and whether that delay can be condoned. With reference to the
factors outlined above in Valor IT168 the SCA found the explanation by the
municipality for the delay to be superficial and unconvincing.169 The SCA
concluded that there was no acceptable explanation for the City’s excessive
delay, nor its inconsistent and vacillating conduct.170 The SCA proceeded to
the second enquiry, namely, whether the prospects of success on the merits
meant that the unreasonable delay could nevertheless be condoned. As to
certain irregularities in the tender process, it was noted that public contracts
did not fall to be invalidated based on immaterial or inconsequential
flaws.171 The City’s submissions relating to its non-compliance with s 33 of
the Constitution and also the Municipal Finance Management Act172 were
quickly disposed of.173
The court emphasised that the object of a state self-review should be
to promote open, responsive and accountable government, and labelled
the conduct and delay of the City ‘so unreasonable that it cannot be
condoned without turning a blind eye to its duty to act in a manner that
promotes reliance, accountability and rationality and that is not legally
and constitutionally unconscionable’.174 The court was of the view that
given the excessive delay, the absence of any reasonable explanation, and
the ‘unconscionable and highly prejudicial conduct of the City and the lack
of merit in the review’, the court below ought not to have condoned the
delay.175 As a result, the appeal was upheld with costs.

2.5  ACCESS TO INFORMATION

Administrative law provides several remedies for maladministration and
different ways to uphold the constitutional values of accountability and
transparency. Apart from judicial review, another remedy is a request for
access to information held by the administrative authority. Access to state-
held information can assist a person who suspects that their rights to just
administrative action have been infringed and who is gathering information
to build a case. This section will briefly deal with cases related to access to
information.

168
Note 163 para 30.
169
Para 22.
170
Para 50.
171
Para 54.
172
56 of 2003.
173
Para 55.
174
Para 71.
175
Para 72.

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South African History Archive Trust v South African Reserve Bank176 dealt
with a request to access information held by a public body. The appellant,
the South African History Archive (SAHA), filed a request with the South
African Reserve Bank (SARB) under the Promotion of Access to Information
Act (PAIA).177 It requested information for research to be undertaken, in the
form of documents from that era. The SARB refused access to the records
and stated that, as the information sought contained personal information
of third parties, it would not disclose the information. The applicant
approached the High Court for declaratory relief and the review and setting
aside of the refusal, but its application was dismissed. It was granted leave
to appeal. The issue before the SCA was whether the SARB was entitled to
refuse the appellant’s request for information. The court discussed in detail
the nature and purpose of PAIA and was of the view that the SARB had not
taken all reasonable steps to inform the third parties concerned, as required
by the Act. The court upheld the appeal.178
In Baleni v Regional Manager Eastern Cape Department of Mineral
Resources179 the primary issue was whether interested and affected parties
in an application for a mining right were entitled to a copy of the mining
right application documents in terms of ss  10 and 22(4) of the Mineral
and Petroleum Resources Development Act (MPRDA).180 In order for the
applicants to have properly exercised their right to comment on and to
object to and participate in the application processes contemplated in the
MPRDA, they needed access to the documents.181 The fifth respondent,
Transworld Energy and Mineral Resources (SA) (Pty) Ltd (TEM), provided
the applicants with a copy of the mining right application, but only after
it had been issued and served.182 TEM, however, opposed the declaratory
relief sought and argued that even though they had voluntarily provided
a copy of the application, the Act does not entitle ‘interested and affected
parties’ to a mining right application, that access to such information is
regulated by PAIA, and that the applicants must utilise the procedures in
PAIA.183 TEM did therefore not dispute the fact that the applicants must be
given access to the documents, but they argued that the process by which
they must get them is not provided for in the MPRDA.184 They argued that
PAIA gives effect to s 32 of the Constitution (right of access to information),

176
2020 (6) SA 127 (SCA).
177
2 of 2000.
178
Paras 47–49.
179
2021 (1) SA 110 (GP).
180
28 of 2002.
181
Para 4.
182
Para 8.
183
Para 11.
184
Para 71.

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and that the applicants should therefore have followed the procedures
prescribed therein.185 The court agreed with the applicants’ interpretation of
the MPRDA sections in finding that they should not have to go through the
time-consuming and often unsatisfactory PAIA process in order to obtain
a mining right application.186 The court held that on a proper interpretation
of ss  10 and 22 of the Act, the applicants were automatically entitled to a
copy of the application upon request, and held that Regional Manager of
the Department of Mineral Resources had to provide the mining right
application documents to interested and affected parties on request.187

4. CONCLUSION
In this chapter I have discussed several cases decided during the period
from July 2020 to June 2021 that addressed the definition of administrative
action, the different pathways to review, and some issues dealing with
procedures and remedies. The court applied PAJA to a variety of decisions,
such as the granting and refusal of prospecting and mining rights, the
conduct of body corporates of sectional titles schemes, investigative
decisions, decisions to interrupt electricity supply, and decisions by the
Auditor-General.
Many cases raised the issue of a lack of procedural fairness in decision-
making processes, and were often unsuccessful. The majority of cases
dealt with procedural issues and remedies, including locus standi, ripeness,
correcting and substitution, and delays in bringing a review application.
These issues were raised particularly in relation to instances where organs
of state sought to review their own decisions in terms of the principle of
legality and the courts had to deal with lengthy delays.

5. LITERATURE
Reported judgments
4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority 2020 (6)
SA 428 (GJ)
Afribusiness NPC v Minister of Finance 2021 (1) SA 325 (SCA)
Airports Company South Africa Ltd v Spain NO 2021 (1) SA 97 (KZD)
Airports Company South Africa SOC Ltd v Imperial Group Ltd (ACSA)
2020 (4) SA 17 (SCA)
Airports Company South Africa v Tswelokgotso Trading Enterprises CC
2019 (1) SA 204 (GJ)

185
Para 72.
186
Para 91.
187
Paras 96 and 117.

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AllPay Consolidated Investment Holding (Pty) Ltd Chief Executive Officer,

South African Social Security Agency 2014 (1) SA 604 (CC)
Altech Radio Holdings (Pty) Ltd v Tshwane City 2021 (3) SA 25 (SCA)
Associated Portfolio Solutions (Pty) Ltd v Basson 2021 (1) SA 341 (SCA)
BAE Estates and Escapes (Pty) Ltd v Trustees for the Time Being of the
Legacy Body Corporate 2020 (4) SA 514 (WCC)
Baleni v Regional Manager Eastern Cape Department of Mineral Resources
2021 (1) SA 110 (GP)
Carte Blanche Marketing CC v Commissioner, South African Revenue
Service 2020 (6) SA 463 (GJ)
Chairperson, Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd
2008 (2) SA 638 (SCA)
Compcare Wellness Medical Scheme v Registrar of Medical Schemes 2021
(1) SA 15 (SCA)
Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC)
Esau v Minister of Co-operative Governance and Traditional Affairs 2021
(3) SA 593 (SCA)
Eskom Holdings SOC Limited v National Energy Regulator of South Africa
2020 (5) SA 151 (GP)
Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd 2021 (3) SA 47
(SCA)
Gauteng Gambling Board v Silverstar Development Ltd 2005 (4) SA 67
(SCA)
Giant Concerts CC v Rinaido Investments (Pty) Ltd 2013 (3) BCLR 251 (CC)
Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape
2007 (6) SA 442 (Ck)
Kalisa v Chairperson, Refugee Appeal Board 2020 (4) SA 256 (WCC)
Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO 2020 (4) SA 375 (CC)
Mbuthuma v Walter Sisulu University 2020 (4) SA 602 (ECM)
MEC for Economic Opportunities, WC v Auditor-General 2021 (1) SA 455
(WCC)
MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye and
Lazer Institute 2014 (3) SA 481 (CC)
Merafong City Local Municipality v AngloGold Ashanti Ltd 2017 (2) SA 211
(CC)
Millennium Waste Management (Pty) Ltd v Chairperson of the Tender
Board: Limpopo Province 2008 (2) SA 481 (SCA)
Minister of Home Affairs v Public Protector 2018 (3) SA 380 (SCA)
Moropa v Chemical Industries National Provident Fund 2021 (1) SA 499
(GJ)
Msiza v Motau NO 2020 (6) SA 604 (GP)

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National Adoption Coalition of South Africa v Head of Department of

Social Development for KwaZulu-Natal 2020 (4) SA 284 (KZD)
Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA)
Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA)
South African History Archive Trust v South African Reserve Bank 2020 (6)
SA 127 (SCA)
South Durban Community Environmental Alliance v MEC for Economic
Development, Tourism and Environmental Affairs: KwaZulu-Natal
Provincial Government 2020 (4) SA 453 (SCA)
State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
2018 (2) SA 23 (CC)
Staufen Investments (Pty) Ltd v Minister of Public Works 2020 (4) SA 78
(SCA)
Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa Ltd 2015 (5) SA 245 (CC)
Valor IT v Premier, North West Province 2021 (1) SA 42 (SCA)
Wings Park Port Elizabeth (Pty) Ltd v MEC, Affairs, Eastern Cape 2019 (2)
SA 606 (ECG)

Unreported judgments
Abraham v Mount Edgecombe Country Club Estate Management
Association Two (RF) (NPC) (unreported, [2014] ZAKZDHC 36,
17 September 2014, available online at https://www.saflii.org/za/
cases/ZAKZDHC/2014/36.html)
Eskom Holdings SOC Ltd v National Energy Regulator of South Africa
(unreported, [2020] ZAGPJHC 168, 28 July 2020, available online at
https://www.saflii.org/za/cases/ZAGPJHC/2020/168.html)
Executrix of the Estate of the Late Josephine Terblanche Gouws v
Magnificent Mile Trading 30 (Pty) Ltd (unreported, [2018] ZASCA
91, 1 June 2018, available online at http://www.saflii.org/za/cases/
ZASCA/2018/91.html)
Khyber Rock Estate East Home Owners Association v 09 of
Erf 823 Woodmead Ext 13 CC (unreported, [2007] ZAGPHC 137,
14 August 2007, available online at http://www.saflii.org/za/cases/
ZAGPHC/2007/137.html)

Legislation and regulations

Children’s Act 38 of 2005
Constitution of the Republic of South Africa, 1996
Disaster Management Act 57 of 2002
Financial Advisory and Intermediary Services Act 37 of 2002
Financial Sector Regulation Act 9 of 2017
Mineral and Petroleum Resources Development Act 28 of 2002

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Municipal Finance Management Act 56 of 2003

National Environmental Management Act 107 of 1998
Pension Funds Act 24 of 1956
Preferential Procurement Policy Framework Act 5 of 2000
Preferential Procurement Regulations, 2017
Promotion of Access to Information Act 2 of 2000
Promotion of Administrative Justice Act 3 of 2000
Refugees Act 130 of 1998
Sectional Title Schemes Management Act 8 of 2011
Tax Administration Act 28 of 2011

Journal articles
L Boonzaier ‘A decision to undo’ (2018) 135(4) SALJ 642
G Burns, M Murcott and S Payne ‘Administrative Law’ (2021) 1 Yearbook of
South African Law 70–96
R Cachalia ‘Clarifying the exceptional circumstances test in Trencon: An
opportunity missed’ (2015) 7 Constitutional Court Review 115
S de Lange ‘Revoking a decision to suspend payment of disputed tax
“on further consideration”: An administrative law perspective’ (2021) 24
PER/PELJ
R Henrico ‘Legislative administrative action and the limited extent of
public participation’ 2020 TSAR 496
R Henrico ‘The functus officio doctrine and invalid administrative action
in South African administrative law: A flexible approach’ (2020) 34(2)
Speculum Juris 115
L Kohn ‘The test for “exceptional circumstances” where an order of
substitution is sought: An analysis of Trencon against the backdrop of the
separation of powers’ (2015) 7 Constitutional Court Review 91
JD Mujuzi ‘Electricity theft in South Africa: Examining the need to clarify
the offence and pursue private prosecution?’ (2020) 41(1) Obiter 78
M Murcott, S Payne and G Burns ‘Administrative Law’ 2020 (3) JQR
M Pieterse ‘Out of the shadows: Towards a line between party and state in
South African local government’ (2020) 36(2–3) SAJHR 131
C Plasket ‘Procedural fairness, executive decision-making and the rule of
law’ (2020) 137(4) SALJ 698
DM Pretorius ‘Confusion and delay: Self-review, functus officio and
Oudekraal’ (2020) 83 THRHR 245
DM Pretorius ‘Oudekraal after fifteen years: The second act (or, a
reassessment of the status and force of defective administrative decisions
pending judicial review)’ (2020) 31 Stell LR 3
DM Pretorius ‘Investigations, natural justice and reviewability: Msiza v
Motau NO & another’ (2021) 138(1) SALJ 31

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DM Pretorius ‘When legality and certainty collide: Magnificent Mile Trading

30 (Pty) Ltd v Celliers NO & others’ (2020) 137(4) SALJ 608–624
BV Slade ‘Reviewing the Speaker’s decision: A brief synopsis of UDM v
Speaker of the National Assembly 2017 (5) SA 300 (CC)’ (2021) 24 PER/PELJ
P Volmink and A Anthony ‘A discussion of the recent ruling of the South
African Supreme Court of Appeal in Afribusiness NPC v Minister of
Finance’ (2001) 8(1) African Public Procurement Law Journal 1–19.
W Vos ‘Personal cost orders: Protecting the public purse’ (2020) 31(1) Stell
LR 138
T Twala and M Mogdime ‘Transformative adjudication and the place of
administrative law in South African jurisprudence: ABSA Bank Limited v
Public Protector’ (2020) 14(2) PSLR 362

Books
C Hoexter and G Penfold Administrative Law in South Arica 3 ed (2021)

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