For Baxter, it is a set of common-law principles which promote the effective use of administrative power, protect against misuse, preserve a balance of fairness and maintain the public interest.
In President of the RSA v SARFU, the Constitutional Court held that the administration is that part of government which is primarily concerned with the implementation of legislation.
This is known as the principle of legality, which requires that administrative authorities not only refrain from breaking the law, but that all their content comply with the Constitution and particularly the Bill of Rights.
The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of PAJA and the Constitution.
In R v Mchlery, Lord De Villiers held that the courts had no right to enquire into or as to whether the legislature had acted wisely or unwisely for the benefit of the public or individuals.
In Lunt v University of Cape Town, regarding a refusal to allow a post-graduate into medical school, the court applied the legitimate-expectation doctrine in a contractual setting.
This decision clarifies the underlying principle which was incorrectly interpreted in the case of Omar v Minister of Law and Order]], in which it was held that the State President, when enacting emergency regulations in terms of the Public Safety Act, could excuse the right to a hearing as well as the right of detainees to legal representatives.
Affordable Medicines Trust v Minister of Health concerned a challenge to the validity of a licensing scheme introduced by the government.
The applicants sought an order declaring the invalidity of certain sections of the Medicines and Related Substances Act which authorised the Director-General of Health to issue licences to dispense medicines to health practitioners, which could result in wide, unlimited and uncircumscribed arbitrary legislative powers.
The challenge raised the question of whether it is permissible for parliament to leave it to the Director-General to prescribe the conditions on which a licence may be issued.
It was held that, in line with the principle of legality embodied in the Constitution and built into PAJA, administrative action not authorised by an empowering provision is unlawful and invalid, and that a person prejudiced by it may have it reviewed and set aside.
In Platinum Asset Management v Financial Services Board, the argument was raised by Platinum Asset Management that an authorisation of an inspection of the applicant's business by the registrar in terms of the Inspection of Financial Institutions Act[7] was "overboard, undefined and unspecified," and therefore in contravention of the principle of the rule of law and the doctrine of legality.
The second application, brought by the city of Cape Town, was for the review and setting aside of the first Mayor's decision to extend the contract of employment.
To be lawful, a delegation of a power or a duty by the Minister has three requirements: The Interim Constitution, in section 24, provides that every person has the right to administrative action which is justifiable.
In order to prove justifiability in relation to the reasons given for it, it must be objectively tested against the three requirements of suitability, necessity and proportionality.
In short reasonableness requires that Section 33(1) of the Constitution provides for a right to administrative action that is procedurally fair.
There are three legal sources: The common law embodies certain principles of natural justice, including audi alteram partem (or "hear the other side") and nemo iudexin sua causa (or "no-one may be a judge in his own cause").
Requirements for the opportunity to be heard are as follows: Section 3(1) of PAJA provides that administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
In Minister of Environmental Affairs & Tourism v Phambili Fisheries, the respondent successfully challenged in the court a quo the decision of the Chief Director of Marine Coastal Management to allocate a maximum amount of hake that they were permitted to catch, being less than what they had asked for.
In Petro Props v Barlow, the applicant was the owner of immovable property on which it intended to construct and operate a filling station.
The respondents were opposed to the development, fearing that a filling station in the proposed location will be detrimental to the wetland surrounding it.
The court's power to review administrative action no longer flows directly from the common law but from PAJA and the Constitution itself.
The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of PAJA and the Constitution.
It was held that inaction on the part of the respondent falls under the definition of administrative action in section 1 of PAJA.
[12] The steps to be followed in terms of section 11 of the Act are as follows: When the matter reached the court, PAJA had not yet come into force, so it was necessary to rely on the common law.
In Platinum Asset Management v Financial Services Board; Anglo Rand Capital House v Financial Service Board,[13] the applicants were companies believed to be carrying on operations buying and selling shares on behalf of paying clients on various international stock exchanges without the necessary approval in terms of section 445 of the Stock Exchange Control Act.
In fact, section 6 of PAJA says that a court may set aside decisions where An "enabling statute" is that legislation which allows the administration to act.
In the case of natural or juristic persons, a wider definition of "empowering provision" is employed to accommodate instances where natural or juristic persons exercise public power or perform public functions, such as the functions awarded to them in terms of outsourcing agreements.
These rules may come in the form of conditions, expressed by such terms as "age," "fit and proper," "exceptional circumstances," "reasonable," etc.
The focus of the enquiry as to whether conduct is "administrative action" is not on the arm of government to which the relevant actor belongs, but on the nature of the power he or she is exercising.