Introduction to PAJA: The Promotion of Administrative Justice Act Explained
Complete introduction to PAJA - what is administrative action, Grey's Marine test, lawfulness, reasonableness, procedural fairness, and judicial review.
Introduction to PAJA: The Promotion of Administrative Justice Act Explained
Area of Law: Administrative Law
Reading Time: 14 minutes
🎯 What Is PAJA?
PAJA = Promotion of Administrative Justice Act 3 of 2000
Purpose: Give effect to the constitutional right to just administrative action (Section 33 of the Constitution).
In simple terms: PAJA protects you from unfair, unreasonable, or unlawful decisions by government officials and public bodies.
Why it matters: Government makes thousands of decisions daily that affect people's lives:
- Granting/refusing licenses
- Awarding tenders
- Disciplining employees
- Issuing permits
- Allocating resources
- Imposing penalties
PAJA ensures these decisions are made fairly and lawfully.
📖 Constitutional Foundation: Section 33
Section 33(1) — The Right
"Everyone has the right to administrative action that is— (a) lawful, reasonable and procedurally fair; and (b) where their rights are materially and adversely affected, to be given written reasons."
Three pillars:
- Lawful — Authorized by law
- Reasonable — Rational, not arbitrary
- Procedurally fair — Fair process (notice, hearing, reasons)
Section 33(2) — The Mandate
"National legislation must be enacted to give effect to these rights..."
Result: Parliament enacted PAJA in 2000.
Section 33(3) — Internal Remedies
"National legislation must provide for the review of administrative action by a court or... an independent and impartial tribunal..."
Result: PAJA creates right to judicial review in High Court.
📖 What Is "Administrative Action"?
Not every government decision is reviewable under PAJA.
Section 1 of PAJA defines "administrative action":
"Administrative action means any decision taken, or any failure to take a decision, by— (a) an organ of state, when exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect..."
Break it down:
1. Decision (or Failure to Decide)
Must be a decision — not just advice, recommendation, or internal deliberation.
Examples:
- ✅ Refusing a building permit (decision)
- ✅ Dismissing a public servant (decision)
- ❌ Internal memo recommending dismissal (not final decision)
2. By Organ of State or Person Exercising Public Power
"Organ of state" = government department, municipality, public entity (Section 239 Constitution)
OR
Private person exercising public power (e.g., private security company managing detention facility)
Examples:
- ✅ Minister refusing passport
- ✅ Municipality issuing eviction notice
- ✅ University expelling student (public university)
- ❌ Private company firing employee (not public power)
3. In Terms of Legislation/Empowering Provision
Decision must be made under a law (statute, regulation, by-law).
Not:
- Common law decisions
- Contractual decisions (unless statutory)
Example:
- ✅ License refused under Liquor Act (legislative power)
- ❌ Contract terminated under common law (not administrative action)
4. Adversely Affects Rights
Decision must negatively impact someone's rights.
Examples:
- ✅ License refused (affects right to trade)
- ✅ Student expelled (affects right to education)
- ❌ Decision granting competitor tender (doesn't adversely affect you — you can't complain about someone else's benefit)
5. Direct, External Legal Effect
Decision must have legal consequences outside the decision-maker's organization.
Not:
- Internal policies
- Recommendations
- Preparatory steps
Example:
- ✅ Final decision to refuse permit (external legal effect)
- ❌ Internal recommendation to refuse (no external effect yet)
EXCLUSIONS (Section 1)
PAJA does not apply to:
(a) Executive powers of President under Constitution (Sections 79-92)
- Example: Presidential assent to bills
(b) Judicial functions of courts
(c) Decisions of legislative bodies (Parliament, provincial legislatures)
(d) Decisions made in terms of PAJA itself
Why excluded? These are governed by other constitutional provisions, not administrative law.
🏛️ Key Case: Grey's Marine v Minister of Transport (2005)
THE leading case on "administrative action"
Facts:
- Minister cancelled Grey's Marine's tender for ferry service
- Grey's challenged cancellation under PAJA
Issue: Was the cancellation "administrative action" under PAJA?
Court's test (5-part test):
To be administrative action under PAJA:
- Decision — Must be a decision (not recommendation)
- By organ of state or person exercising public power
- In terms of legislation or empowering provision
- Adversely affects rights
- Direct, external legal effect
AND must NOT fall under exclusions.
Held: Cancellation was administrative action — met all 5 requirements.
Significance: Grey's Marine test is always the starting point for PAJA analysis.
📖 The Three Core Rights Under PAJA
1. Lawfulness (Section 6(2))
Section 6(2)(a)-(f): Administrative action is unlawful if:
(a) Not authorized by empowering provision
- Example: Minister acts without statutory power
(b) Mandatory procedure not followed
- Example: Required consultation skipped
(c) Influenced by unauthorized considerations
- Example: Decision based on race (irrelevant factor)
(d) Ignored relevant considerations
- Example: Ignored applicant's financial hardship
(e) Made for unauthorized purpose
- Example: License refused to punish applicant, not protect public
(f) Made in bad faith
- Example: Corruption, malice
Remedy: Court declares decision unlawful and sets it aside (Section 8).
2. Reasonableness (Section 6(2)(h))
Section 6(2)(h): Administrative action must not be "so unreasonable that no reasonable person could have taken it."
Test: Bato Star Fishing v Minister (2004):
"Was the decision rational? Is there a rational connection between the decision and the purpose for which the power was conferred?"
Not: Whether court agrees with decision.
But: Whether decision is within range of reasonable outcomes given the facts and law.
Example:
- ✅ Reasonable: Refuse liquor license due to previous violations
- ❌ Unreasonable: Refuse liquor license because applicant is left-handed (no rational basis)
3. Procedural Fairness (Sections 3-4)
Two types:
Section 3: Fair Procedure Before Adverse Decision
Before taking administrative action that adversely affects rights, administrator must:
(a) Give adequate notice of:
- Nature and purpose of action
- How and when to make representations
- Right to be assisted/represented
(b) Give reasonable opportunity to:
- Make representations
- Dispute allegations
- Present evidence
(c) Give clear statement of administrative action
(d) Give adequate notice of right to internal appeal/review
(e) Give adequate notice of right to judicial review (PAJA)
Example:
- University wants to expel student
- Must give student notice of charges
- Must give student opportunity to respond, present evidence, make representations
- Must give student notice of appeal rights
Section 4: Departures from Fair Procedure
When can administrator skip Section 3 procedures?
Section 4(1): If it's reasonable and justifiable in the circumstances, considering:
(a) Objects of empowering provision
(b) Nature and purpose of administrative action
(c) Likely effect on rights
(d) Urgency
(e) Need for efficiency
Example: Emergency eviction due to imminent danger — full hearing may be delayed until after eviction (but must still happen).
Section 5: Written Reasons
Section 5(1): Person whose rights are materially and adversely affected may request written reasons within 90 days of becoming aware of decision.
Administrator must provide reasons within 90 days (Section 5(2)).
Why important?
- Transparency
- Accountability
- Enables effective review/appeal
Failure to give reasons can make decision reviewable.
📖 Judicial Review Under PAJA
Section 6: Grounds for Review
Section 6(2): Court may review administrative action if:
(a)-(j) [Various grounds — lawfulness, reasonableness, procedural fairness]
Court can:
- Declare action unlawful
- Set aside decision
- Order administrator to reconsider (with directions)
- Substitute own decision (rare — only if clear what decision should be)
Section 7: Time Limits
Section 7(1): Proceedings for judicial review must be instituted without unreasonable delay and within 180 days of:
- Date decision communicated
- OR date person became aware of decision
- Whichever is later
Court can condone late filing if good reason shown (Section 9).
Section 8: Remedies
Section 8(1): Court may:
(a) Set aside administrative action
(b) Correct defect/error
(c) Order administrator to reconsider decision
(d) Substitute own decision (if:
- Only one decision can lawfully be taken
- OR circumstances are urgent/exceptional)
(e) Order costs
(f) Make any other just and equitable order
💡 Practical Application
Example 1: License Refusal
Facts:
- Sipho applies for taxi permit
- Municipality refuses without giving reasons or hearing
PAJA analysis:
1. Is it administrative action? (Grey's Marine test)
- ✅ Decision (to refuse)
- ✅ By organ of state (municipality)
- ✅ In terms of legislation (Transport Act)
- ✅ Adversely affects rights (right to trade)
- ✅ External legal effect (can't operate taxi)
Yes, it's administrative action.
2. Was it lawful, reasonable, procedurally fair?
Procedural fairness (Section 3):
- ❌ No notice given
- ❌ No opportunity to make representations
- ❌ No reasons given
Violation of Section 3.
3. Remedy (Section 8):
- Court sets aside refusal
- Orders municipality to reconsider after giving Sipho fair hearing
Example 2: Employee Dismissal
Facts:
- Public hospital dismisses nurse for misconduct
- Held disciplinary hearing
- Gave reasons
PAJA analysis:
1. Is it administrative action?
- ✅ Decision (dismissal)
- ✅ Organ of state (public hospital)
- ✅ In terms of legislation (Labour Relations Act? Or common law?)
Wait: Is dismissal under LRA (labour law) or administrative law?
Answer: Labour disputes governed by LRA, not PAJA (Chirwa v Transnet, 2008).
Not administrative action — different review process (CCMA/Labour Court).
Example 3: University Expulsion
Facts:
- Public university expels student for plagiarism
- Student not given opportunity to dispute evidence
PAJA analysis:
1. Is it administrative action?
- ✅ Decision (expulsion)
- ✅ Organ of state (public university)
- ✅ Adversely affects rights (education)
- ✅ External legal effect
Yes, administrative action.
2. Procedurally fair?
- ❌ No opportunity to dispute evidence (Section 3(2)(b))
Violation.
3. Remedy:
- Set aside expulsion
- Order university to hold new hearing with fair procedures
⚠️ Common Mistakes
❌ Mistake 1: Thinking All Government Decisions Are Administrative Action
Wrong: "Government made decision, so it's administrative action."
Correct: Must meet all 5 elements of Grey's Marine test and not fall under exclusions.
❌ Mistake 2: Confusing PAJA with Constitutional Review
PAJA review: Based on Section 33 + PAJA (lawful, reasonable, procedurally fair)
Constitutional review: Based on other Bill of Rights violations (equality, dignity, etc.)
You can do both — but they're different bases.
❌ Mistake 3: Missing the 180-Day Deadline
Section 7(1): Must apply within 180 days.
Late applications need good reason for delay (Section 9).
❌ Mistake 4: Not Exhausting Internal Remedies
Section 7(2): Must exhaust internal appeals unless:
- No internal remedy available
- Internal remedy not effective
- Exceptional circumstances
Always check: Is there an internal appeal? Must exhaust first.
📚 Further Reading
Legislation:
- Constitution, Section 33 — Right to just administrative action
- PAJA (Act 3 of 2000) — Full text
Key Cases:
- Grey's Marine v Minister of Transport (2005) — Definition of administrative action
- Bato Star Fishing v Minister (2004) — Reasonableness test
- Sidumo v Rustenburg Platinum Mines (2008) — Labour vs PAJA
- Chirwa v Transnet (2008) — Labour disputes not PAJA
Textbooks:
- Hoexter, Administrative Law in South Africa
- Quinot & Maree, Administrative Justice in South Africa
🎓 Study Summary
PAJA = Promotion of Administrative Justice Act 3 of 2000
Purpose: Give effect to Section 33 (just administrative action)
Administrative action (Grey's Marine test):
- Decision
- By organ of state/person exercising public power
- In terms of legislation
- Adversely affects rights
- Direct, external legal effect
Three core rights:
- Lawfulness (Section 6(2)(a)-(f))
- Reasonableness (Section 6(2)(h))
- Procedural fairness (Sections 3-4)
Judicial review:
- Section 6 grounds
- Section 7 time limits (180 days)
- Section 8 remedies
✅ Quick Revision Checklist
- Can you define PAJA's purpose?
- Can you cite Section 33?
- Can you apply Grey's Marine 5-part test?
- Can you list 3 grounds for unlawfulness?
- Can you explain procedural fairness (Section 3)?
- Can you state the 180-day time limit?
- Can you distinguish PAJA from labour law?
Need help with administrative law? Ask in the Community Q&A.
Tags: #PAJA #administrativelaw #section33 #GreysMarine #procedurefairness #judicialreview
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