The scheme of s 33 of the Constitution of the Republic of South Africa, 1996 has been undermined by the courts’ treating the principle of legality, and not solely the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), as a basis for the review of administrative action. This article argues that the key to the reunification of administrative law is to give effect to the proposition that PAJA, including s 6(2), reflects the requirements for the validity of administrative action. The logical consequence of this proposition is that where administrative action is the target, classical collateral challenge and self-review ought to be adjudicated based on PAJA’s grounds of invalidity. The same is true of internal review by a functionary or tribunal where the enabling legislation does not provide for more specific grounds of review. In the case of self-review and internal review, this direct approach would, however, require certain rulings of the Constitutional Court to be revisited. Failing that, a more indirect and thus less satisfactory solution would be for PAJA’s review grounds to be applied under the umbrella of legality review.
Penfold et al. (Wed,) studied this question.
Synapse has enriched 5 closely related papers on similar clinical questions. Consider them for comparative context: