Lawfulness Under PAJA: Section 6(2)(a)-(f) Grounds for Review
Master the six grounds of unlawfulness under PAJA Section 6(2)(a)-(f) - authorization, mandatory procedures, relevant considerations, purpose, and bad faith.
Lawfulness Under PAJA: Section 6(2)(a)-(f) Grounds for Review
Area of Law: Administrative Law
Reading Time: 13 minutes
🎯 What Is Lawfulness?
Lawfulness is the first pillar of just administrative action.
Section 33(1)(a) Constitution: Right to administrative action that is "lawful, reasonable and procedurally fair"
PAJA Section 6(2)(a)-(f) sets out six grounds on which administrative action can be challenged as unlawful.
Core principle: Administrators can only do what the law authorizes. No more, no less.
Latin: Ultra vires — "beyond the powers"
📖 Section 6(2): The Six Grounds of Unlawfulness
Overview
Section 6(2): A court may review administrative action if:
(a) Administrator not authorized by empowering provision
(b) Mandatory procedure/condition not complied with
(c) Action influenced by unauthorized/irrelevant considerations
(d) Relevant considerations not considered
(e) Action taken for unauthorized purpose
(f) Action taken in bad faith
Let's examine each ground in detail.
📖 Ground (a): Lack of Authorization
Section 6(2)(a)
"The administrator who took it was not authorized to do so by the empowering provision"
In simple terms: Did the administrator have legal power to make this decision?
Test:
- What does the empowering statute authorize?
- Did the administrator exceed those powers?
Example 1: Wrong Official
Facts: Provincial Director issues national permit (statute says only Minister can issue national permits)
Analysis:
- Empowering provision: Only Minister authorized
- Who acted: Provincial Director
- Authorized? NO
Result: Decision is ultra vires (beyond powers) — unlawful.
Example 2: Power Doesn't Exist
Facts: Municipality bans all dogs from public parks (no statute gives this power)
Analysis:
- Empowering provision: None (no legislation authorizes dog ban)
- Action: Total ban on dogs
- Authorized? NO
Result: Unlawful — administrator cannot create powers that don't exist.
Key Case: Fedsure v Greater Johannesburg (1998)
Facts:
- Municipality imposed levy on property owners
- No statutory authorization for levy
Court held:
"The exercise of public power is only legitimate where lawful... A public body has no power to act unless authorized by law."
Principle: Government can only act where law authorizes. No inherent powers.
📖 Ground (b): Mandatory Procedure Not Followed
Section 6(2)(b)
"A mandatory and material procedure or condition prescribed by an empowering provision was not complied with"
In simple terms: Did administrator follow the required steps set out in the law?
Two types of requirements:
1. Mandatory — MUST be followed (failure = invalidity)
- Example: "Minister shall consult Cabinet"
2. Directory — Should be followed, but failure doesn't invalidate
- Example: "Minister may consult stakeholders"
How to tell the difference?
Courts consider:
- Statutory language ("shall" vs "may")
- Importance of requirement
- Consequences of non-compliance
- Parliament's intention
Example: Consultation Required
Facts:
- Statute: "Minister shall consult affected parties before making regulations"
- Minister makes regulations without consultation
Analysis:
- Mandatory procedure: Consultation
- Complied with? NO
- Material (important)? YES (affects rights)
Result: Regulations unlawful — mandatory procedure skipped.
Key Case: Merafong City v AngloGold Ashanti (2017)
Facts:
- Statute required municipality to "consult ratepayers" before imposing levy
- Municipality didn't consult
Court held:
"Where a statute prescribes a procedure as mandatory, failure to comply renders the decision invalid."
Held: Levy invalid — mandatory consultation skipped.
📖 Ground (c): Influenced by Unauthorized Considerations
Section 6(2)(c)
"The action was procedurally unfair or... was materially influenced by an error of law or... was taken because irrelevant considerations were taken into account or relevant considerations were not considered"
Focus here: Irrelevant considerations
In simple terms: Did administrator base decision on factors not relevant to the statutory purpose?
Example 1: Race as Factor
Facts:
- Liquor license refused because applicant is Black
- Statute says licenses issued based on "suitability of premises and applicant's track record"
Analysis:
- Relevant considerations: Premises, track record
- Actual consideration: Race (irrelevant and unconstitutional)
- Influenced decision? YES
Result: Unlawful — decision based on irrelevant (and discriminatory) factor.
Example 2: Personal Grudge
Facts:
- Official denies tender to company because owner once criticized him publicly
- Statute says tenders awarded on "value for money"
Analysis:
- Relevant: Value for money, quality, price
- Actual consideration: Personal grudge (irrelevant)
Result: Unlawful.
Key Case: Democratic Alliance v President (2013)
Facts:
- President refused to suspend National Police Commissioner despite serious allegations
- Evidence suggested President considered political loyalty instead of misconduct allegations
Court held:
"The President acted on irrelevant considerations (political implications) and ignored relevant considerations (corruption allegations)."
Held: Refusal to suspend unlawful.
📖 Ground (d): Relevant Considerations Not Considered
Section 6(2)(d)
"Relevant considerations were not considered"
In simple terms: Did administrator ignore factors they should have considered?
Two types of relevant considerations:
1. Statutory — Required by empowering provision
- Example: Statute says "consider environmental impact" → must consider it
2. Constitutional — Required by Bill of Rights
- Example: Decision affecting children → must consider "best interests of child" (Section 28(2))
Example: Children's Interests Ignored
Facts:
- Mother facing imprisonment for fraud
- Sole caregiver for 3 young children
- Magistrate sentences her to 5 years without considering children's welfare
Analysis:
- Relevant consideration: Best interests of child (Section 28(2) Constitution)
- Considered? NO
- Mandatory? YES (S v M)
Result: Sentence unlawful — failed to consider constitutionally mandated factor.
Key Case: Albutt v CSVR (2010)
Facts:
- President granted special remission to certain prisoners
- Did not consider victims' interests
Court held:
"The President failed to consider the interests of victims — a relevant consideration required by the Constitution (dignity, s 10)."
Held: Remission process unlawful.
📖 Ground (e): Unauthorized Purpose
Section 6(2)(e)
"The action was taken for an unauthorized purpose"
In simple terms: Did administrator use power for wrong reason?
Test:
- What is the authorized purpose (why did Parliament give this power)?
- What was the actual purpose (why did administrator exercise it)?
- Do they match?
Example 1: Punishment Instead of Regulation
Facts:
- Health inspector closes restaurant for "health violations"
- Real reason: Owner criticized municipality publicly
- No actual health violations
Analysis:
- Authorized purpose: Protect public health
- Actual purpose: Punish critic
- Match? NO
Result: Unlawful — power used for unauthorized purpose.
Example 2: Revenue Instead of Safety
Facts:
- Municipality imposes parking fines "for traffic safety"
- Evidence shows real goal is raise revenue (quotas set for officers)
Analysis:
- Authorized purpose: Traffic safety
- Actual purpose: Revenue generation
- Match? NO
Result: May be unlawful if primary purpose is revenue, not safety.
Key Case: Johannesburg City v Gauteng Development Tribunal (2010)
Facts:
- Tribunal approved development application
- Municipality argued tribunal acted for unauthorized purpose
Court held:
"A power may only be exercised for the purpose for which it was conferred. If exercised for another purpose, it is invalid."
Test: What is the dominant purpose? (Some mixed purposes okay, but primary purpose must be authorized.)
📖 Ground (f): Bad Faith
Section 6(2)(f)
"The action was taken in bad faith"
In simple terms: Did administrator act dishonestly or with improper motive?
Examples of bad faith:
- Corruption — Taking bribes
- Malice — Acting to harm someone
- Dishonesty — Lying about reasons
- Fraud — Deliberate deception
Note: Bad faith is hardest to prove — requires evidence of subjective dishonesty, not just incompetence.
Example 1: Corruption
Facts:
- Official awards tender to Company X
- Evidence shows Company X paid R500,000 bribe
Analysis:
- Bad faith? YES — corruption is dishonest
Result: Tender award unlawful.
Example 2: Malice
Facts:
- Manager fires employee he personally dislikes
- Fabricates misconduct charges
- Evidence shows charges are false
Analysis:
- Bad faith? YES — malicious, dishonest
Result: Dismissal unlawful.
Key Case: SANDU v Minister of Defence (2007)
Facts:
- Minister banned union activities in military
- Evidence suggested political motivation (suppress criticism)
Court held:
"Bad faith requires proof of dishonesty or improper motive. Mere error or poor judgment is not bad faith."
Principle: Bad faith = subjective dishonesty, not objective unreasonableness.
💡 How the Grounds Overlap
Often Multiple Grounds Apply
Example: Tender awarded corruptly
Overlapping grounds:
- (a) Lack of authorization — Corruption not authorized
- (c) Irrelevant considerations — Bribe (irrelevant) influenced decision
- (d) Relevant considerations ignored — Merit, value for money not considered
- (e) Unauthorized purpose — Purpose was personal enrichment, not public procurement
- (f) Bad faith — Corruption is dishonest
Strategy: Plead multiple grounds to strengthen case.
💡 Practical Application
Scenario 1: License Refusal
Facts:
- Sipho applies for taxi permit
- Municipality refuses
- Reason stated: "Insufficient taxi ranks"
- Real reason (internal memo shows): "Sipho belongs to opposition party"
Analysis:
Ground (c) — Irrelevant considerations:
- Political affiliation is irrelevant to taxi licensing
- Decision influenced by irrelevant factor
- Unlawful
Ground (d) — Relevant considerations ignored:
- Relevant: Is Sipho qualified? Vehicle roadworthy? Need for more taxis?
- These factors not considered
- Unlawful
Ground (e) — Unauthorized purpose:
- Authorized purpose: Regulate taxi industry
- Actual purpose: Political discrimination
- Unlawful
Possibly Ground (f) — Bad faith:
- Dishonest (stated reason different from real reason)
- May be bad faith
Remedy: Court sets aside refusal, orders reconsideration without political bias.
Scenario 2: Demolition Without Authorization
Facts:
- Provincial official demolishes informal settlement
- Statute gives demolition power only to municipal officials
- No emergency
Analysis:
Ground (a) — Lack of authorization:
- Empowering provision: Only municipality can demolish
- Who acted: Provincial official
- Authorized? NO
- Unlawful
Remedy: Demolition declared unlawful; damages for affected residents.
Scenario 3: Regulations Without Consultation
Facts:
- Minister makes health regulations
- Statute: "Minister shall consult Health Professions Council before making regulations"
- Minister doesn't consult
Analysis:
Ground (b) — Mandatory procedure not followed:
- Mandatory procedure: Consultation ("shall")
- Complied with? NO
- Material (important)? YES (affects healthcare professionals)
- Unlawful
Remedy: Regulations set aside; Minister must consult and re-make.
⚠️ Common Mistakes
❌ Mistake 1: Confusing Unlawfulness with Unreasonableness
Unlawfulness (s 6(2)(a)-(f)): Did administrator act beyond legal powers?
Unreasonableness (s 6(2)(h)): Was decision irrational?
They're different grounds (but can overlap).
❌ Mistake 2: Thinking All Procedural Failures = Unlawfulness
Wrong: "Procedure not followed, so s 6(2)(b) applies."
Correct: Only if procedure was mandatory and material. Directory procedures don't invalidate.
❌ Mistake 3: Confusing Purpose with Effect
Ground (e) — unauthorized purpose:
Not: What was the effect?
But: What was the intention/motive?
Example: Speed camera raises revenue (effect) but if primary purpose is safety, it's lawful.
💡 Exam Strategy
How to Apply Section 6(2)(a)-(f)
Step 1: Identify the empowering provision
"The decision was made under [statute, section X], which authorizes [administrator] to [power]."
Step 2: Apply relevant grounds
Go through (a)-(f) systematically:
(a) Was this official authorized? (b) Were mandatory procedures followed? (c) Were irrelevant factors considered? (d) Were relevant factors ignored? (e) Was power used for proper purpose? (f) Was there bad faith?
Step 3: Cite authority
- Fedsure for (a)
- Merafong for (b)
- Democratic Alliance v President for (c)/(d)
- Johannesburg City for (e)
- SANDU for (f)
Step 4: Remedy (Section 8)
"The decision should be set aside and reconsidered/remade properly."
Sample Exam Answer
Question: "Municipal manager awards tender to his brother's company without following tender procedures. Advise."
Answer:
"Issue: Whether the tender award is lawful under PAJA.
Administrative action: Yes (Grey's Marine test) — decision by organ of state, in terms of procurement legislation, adversely affects other bidders' rights, external legal effect.
Section 6(2) grounds:
(a) Lack of authorization (s 6(2)(a)): If manager lacked authority to award tenders (e.g., only council authorized), decision ultra vires.
(b) Mandatory procedure (s 6(2)(b)): Procurement legislation prescribes mandatory tender procedures (advertising, evaluation criteria, fairness). Failure to follow = unlawful (Merafong).
(c) Irrelevant considerations (s 6(2)(c)): Family relationship is irrelevant to tender award (should be based on value, quality, BEE compliance). Decision materially influenced by irrelevant factor.
(d) Relevant considerations ignored (s 6(2)(d)): Proper considerations (merit, price, quality, value for money) were not considered.
(e) Unauthorized purpose (s 6(2)(e)): Tender system's purpose is public procurement (value for money, transparency). Actual purpose: Enrich family member. Unauthorized purpose (Johannesburg City).
(f) Bad faith (s 6(2)(f)): Awarding to family without merit = dishonest, improper motive (SANDU). Bad faith.
Conclusion: Tender award unlawful on multiple grounds.
Remedy (s 8): Court should:
- Set aside tender award
- Order re-tender with proper procedures
- Investigate manager for corruption
- Award costs against municipality"
📚 Further Reading
Legislation:
- PAJA, Section 6(2)(a)-(f) — Grounds of unlawfulness
- Constitution, Section 33 — Just administrative action
Cases:
- Fedsure v Greater Johannesburg (1998) — Lack of authorization
- Merafong City v AngloGold Ashanti (2017) — Mandatory procedure
- Democratic Alliance v President (2013) — Irrelevant/relevant considerations
- Albutt v CSVR (2010) — Relevant considerations ignored
- Johannesburg City v Gauteng Development Tribunal (2010) — Unauthorized purpose
- SANDU v Minister of Defence (2007) — Bad faith
🎓 Study Summary
Six grounds of unlawfulness (s 6(2)(a)-(f)):
(a) Not authorized by empowering provision (b) Mandatory procedure not followed (c) Irrelevant considerations influenced decision (d) Relevant considerations not considered (e) Action taken for unauthorized purpose (f) Action taken in bad faith
Key principle: Administrators can only do what law authorizes
Remedy: Set aside unlawful decision (s 8)
✅ Quick Revision Checklist
- Can you list all 6 grounds?
- Can you distinguish mandatory vs directory procedures?
- Can you identify irrelevant vs relevant considerations?
- Can you explain "unauthorized purpose"?
- Can you define "bad faith"?
- Can you apply grounds to a problem?
Need help with administrative law? Ask in the Community Q&A.
Tags: #lawfulness #PAJA #section6 #ultravires #administrativelaw #judicialreview #Fedsure
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