Section 33 Explained: The Right to Just Administrative Action and PAJA

Section 33 protects you against unfair government decisions. It ensures that when the state makes decisions that affect you, the process is fair, lawful, and reasonable.

This right is essential for accountability and the rule of law.

The Text of Section 33

Section 33(1): The Right

"Everyone has the right to administrative action that is lawful, reasonable and procedurally fair."

Section 33(2): Reasons for Administrative Action

"Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons."

Section 33(3): Legislative Implementation

"National legislation must be enacted to give effect to these rights, and must—

(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration."

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What is "Administrative Action"?

Not all government decisions are "administrative action."

Section 1 of PAJA defines "administrative action":

Administrative action = A decision or action by:

• An organ of state
• Exercising a public power or performing a public function
• That adversely affects rights
• And has a direct, external legal effect

Key Elements:

1. Organ of State

• Government departments (national, provincial, municipal)
• State-owned enterprises (Eskom, Transnet, SAA)
• Public universities
• Regulators (ICASA, Competition Commission)
• Any body exercising public power

2. Exercising Public Power

The decision must be made in terms of legislation or empowering provisions.

Example: A minister refusing a permit, a municipality revoking a license, a university expelling a student.

3. Adversely Affects Rights

The decision must negatively impact your rights (e.g., refuse your application, revoke a license, impose a fine).

4. Direct, External Legal Effect

The decision must change your legal position (not just internal government processes).

Example: A minister's decision to fire a civil servant is administrative action. A memo between departments is not.

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What is NOT Administrative Action?

PAJA excludes certain decisions from the definition of administrative action:

Excluded Decisions (Section 1 of PAJA):

1. Legislative functions (Parliament passing a law)
2. Judicial functions (court judgments)
3. Executive policy-making (Cabinet deciding on a new policy)
4. Prosecutorial decisions (NPA deciding whether to prosecute)
5. Private conduct (even if by an organ of state performing a private function, e.g., state as employer in labor dispute)

Key case: Chirwa v Transnet (2008)

• Issue: Is Transnet's decision to dismiss an employee administrative action?
• Holding: No. Transnet was acting as an employer (private function), not exercising public power.
• Principle: Even organs of state engage in private conduct. Labor disputes are not administrative action.

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Section 33(1): Lawful, Reasonable, and Procedurally Fair

1. Lawful

The decision must comply with:

• The enabling legislation (the law that gives the administrator power)
• The Constitution
• Subordinate legislation (regulations, by-laws)

Example: If a statute says a minister "may" grant a permit, the minister must exercise that power lawfully (consider relevant factors, avoid irrelevant factors).

Key case: Pharmaceutical Manufacturers Association v MEC for Health (2000)

• Holding: Administrative action must comply with the empowering provisions. Ultra vires action (beyond the administrator's power) is unlawful.

2. Reasonable

The decision must be rational and justifiable.

Test:

• Is there a rational connection between the decision and the purpose of the empowering provision?
• Did the administrator consider relevant factors and ignore irrelevant factors?
• Is the decision so unreasonable that no reasonable administrator would make it?

Example: A municipality refuses a building permit because the applicant criticized the mayor. This is unreasonable (irrelevant factor).

3. Procedurally Fair

The process must be fair. This includes:

• Notice (you must be informed of the proposed decision)
• Opportunity to be heard (audi alteram partem — hear the other side)
• Reasons (you must be told why the decision was made)
• Unbiased decision-maker (nemo iudex in sua causa — no one may be a judge in their own case)

From Administrator, Transvaal v Traub (1989):
"The fundamental rule of natural justice is audi alteram partem — no one should be condemned unheard."

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Section 33(2): Written Reasons

"Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons."

Why are reasons important?

Reasons enable:

• Accountability — You know why the decision was made
• Review — You can challenge the decision if it's unlawful or unreasonable
• Transparency — The administrator must justify the decision

Adequate reasons must:

• Explain why the decision was made
• Refer to the facts and legal principles relied upon
• Be specific, not vague or generic

Example:
❌ "Your application is refused." (No reasons)
✅ "Your application is refused because you failed to submit the required environmental impact assessment, as required by section 24 of the Environmental Management Act."

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PAJA: Promotion of Administrative Justice Act 3 of 2000

Section 33(3) required Parliament to pass legislation giving effect to Section 33.

PAJA is that legislation.

What PAJA Does:

1. Defines "administrative action" (Section 1)
2. Sets procedural fairness standards (Section 3 & 4)
3. Provides grounds for judicial review (Section 6)
4. Requires reasons (Section 5)
5. Sets time limits for review (Section 7)

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Procedural Fairness Under PAJA

Section 3: Fair Procedures Before Action

PAJA Section 3(2)(b) — Minimum procedural fairness:

Before making a decision that adversely affects you, the administrator must:

1. Give you adequate notice of the decision
2. Give you a reasonable opportunity to make representations
3. Give you a clear statement of the reasons if your rights are affected
4. Give you adequate notice of any right of review or appeal

Example: A municipality wants to revoke your liquor license. It must:

• Notify you in writing
• Tell you why (e.g., complaints of noise violations)
• Give you a chance to respond (hearing, written submission)
• Give you reasons for the final decision

Section 4: Fair Procedures After Action

If the decision is urgent and prior notice is impossible, the administrator may act first, but must give you:

• Notice of the action taken
• Reasons for the action
• An opportunity to make representations after the decision (with a view to reviewing it)

Example: A health inspector closes a restaurant immediately due to a food safety emergency. The inspector must still give reasons afterward and allow the owner to respond.

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Grounds for Review Under PAJA

PAJA Section 6 lists grounds for reviewing administrative action.

Section 6(2): Grounds for Review

A court may review administrative action if:

(a) Unauthorized or Empowering Provision Not Followed

The administrator acted beyond their power (ultra vires).

Example: A statute allows a minister to suspend a license "for up to 6 months," but the minister suspends it for 12 months.

(b) Procedural Fairness Not Followed

The administrator failed to give notice, hear you, or provide reasons.

(c) Legally Entitled to the Decision

You had a clear legal right to a different decision.

Example: You met all statutory criteria for a license, but the administrator refused it.

(d) Irrelevant Considerations or Failed to Consider Relevant Factors

The administrator considered factors not mentioned in the law, or ignored factors the law required.

Example: A minister refuses a mining permit because the applicant is a political opponent (irrelevant factor).

(e) Unreasonable or Irrational

No reasonable administrator would make this decision.

Example: A municipality refuses a building permit for a house because "the color is ugly" (irrational).

(f) Contrary to the Law or Not Authorized

The decision violates legislation or the Constitution.

(g) Bias or Conflict of Interest

The decision-maker had a personal interest or was biased.

Example: A tender committee awards a contract to a member's family business.

(h) No Reasons or Inadequate Reasons

The administrator failed to provide reasons, or the reasons were vague and unintelligible.

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Remedies for Unlawful Administrative Action

PAJA Section 8: Remedies

If a court finds administrative action unlawful, it may:

1. Set aside (judicial review) — Invalidate the decision
2. Remit back — Send it back to the administrator to reconsider
3. Substitute the decision (in exceptional cases) — The court makes the decision the administrator should have made
4. Order payment — Compensate you for losses (rare)

Most common remedy: The court sets aside the decision and orders the administrator to reconsider it lawfully.

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Key Cases on Section 33

Pharmaceutical Manufacturers Association v MEC for Health (2000)

Issue: Did the MEC follow fair procedures when removing medicines from the provincial formulary?

Holding: No. The MEC failed to give affected parties notice and an opportunity to be heard.

Principle: Procedural fairness (audi alteram partem) is mandatory.

Administrator, Transvaal v Traub (1989)

Issue: Can the administrator demolish a building without giving the owner a hearing?

Holding: No. Audi alteram partem requires a hearing before adverse action.

Principle: Natural justice requires notice and an opportunity to be heard.

Chirwa v Transnet (2008)

Issue: Is an employer's dismissal of an employee administrative action?

Holding: No. Transnet was acting as an employer (private function), not exercising public power.

Principle: Not all decisions by organs of state are administrative action.

Sidumo v Rustenburg Platinum Mines (2007)

Issue: Can an arbitrator's award in a labor dispute be reviewed under PAJA?

Holding: No. PAJA does not apply to labor arbitrations. The LRA provides its own review mechanism.

Principle: PAJA does not apply where specific legislation provides an alternative review mechanism.

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Practical Application: How to Use Section 33

Step 1: Is It Administrative Action?

• Organ of state?
• Exercising public power?
• Adversely affects rights?
• Direct, external legal effect?

If NO → Section 33 and PAJA do not apply.

Step 2: Was the Action Lawful, Reasonable, and Procedurally Fair?

• Lawful: Did the administrator act within their power?
• Reasonable: Was the decision rational and justified?
• Procedurally fair: Did you get notice, a hearing, and reasons?

Step 3: Apply PAJA Section 6 Grounds for Review

Which ground applies?

• Ultra vires (unauthorized)?
• Procedural unfairness?
• Irrelevant considerations?
• Unreasonable?
• Bias?
• No reasons?

Step 4: Seek a Remedy

• Review application (within 180 days per PAJA Section 7)
• Ask the court to set aside the decision
• Request the administrator to reconsider

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📚 Study Tips: Mastering Section 33

1. Memorize the Definition of Administrative Action

Mnemonic: "OPAD" (Organ of state, Public power, Adversely affects, Direct effect)

2. Know What's Excluded

Legislative, judicial, executive policy, prosecutorial decisions, private conduct.

3. Understand Lawful, Reasonable, Procedurally Fair

These are the three pillars of Section 33(1).

4. Link to Natural Justice

Audi alteram partem (hear the other side) and nemo iudex in sua causa (no bias) are foundational principles.

5. Know PAJA Section 6 Grounds

Memorize the grounds for review (at least the main ones: ultra vires, procedural unfairness, unreasonable, bias).

6. Understand the Time Limit

PAJA Section 7: You must bring a review application within 180 days (with possible extension for good cause).

7. Cite the Key Cases

• Pharmaceutical Manufacturers (2000) — Procedural fairness
• Chirwa (2008) — Not all state decisions are administrative action
• Traub (1989) — Audi alteram partem

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