The Principle of Legality in Administrative Law

Area of Law: Administrative Law, Constitutional Law
Reading Time: 11 minutes

---

🎯 What Is Legality?

Legality is the principle that all exercises of public power must be authorized by law.

Also called: "Rule of law" or "principle of lawfulness"

Core idea: Government cannot act arbitrarily — every action must have legal basis.

Constitutional foundation:

• Section 1(c): "Supremacy of the constitution and the rule of law"
• Implicit in constitutional order

---

📖 Legality vs PAJA

Two Routes to Challenge Administrative Action

1. PAJA Review (Section 33 + PAJA)

• Applies to "administrative action" (Grey's Marine test)
• Specific grounds (s 6(2))
• Procedural requirements (s 3-4)
• 180-day time limit (s 7)

2. Legality Review (Constitutional, common law)

• Applies to all exercises of public power (broader than PAJA)
• Based on rule of law principle
• No specific time limit (reasonable delay)

Key difference: Legality applies even when PAJA doesn't.

---

When to Use Legality Review

Use legality when:

(a) Action excluded from PAJA

• Example: Presidential powers under Constitution
• Example: Decisions of Parliament

(b) PAJA time limit missed

• 180 days passed
• Can still use legality (if reasonable delay explained)

(c) Conduct not "administrative action"

• Example: Informal government policy
• Example: Preparatory decisions

---

🏛️ The Pharmaceutical Manufacturers Test

Pharmaceutical Manufacturers v President (2000)

THE foundational case on legality

Facts:

• President made regulations without consulting affected parties
• Challenged as both PAJA violation and legality violation

Court held:

Chaskalson P:

"The principle of legality... constitutes a bottom-line requirement for governmental action. The exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law."

Legality test:

All exercises of public power must be:

1. Authorized by law — Power must exist in statute/Constitution
2. Rational — Rational connection between power and purpose
3. Procedurally fair — Affected persons must be heard (depending on circumstances)

Significance: Legality is constitutional principle, independent of PAJA.

---

📖 Elements of Legality

1. Authorization

Question: Does law authorize this action?

If NO: Action is ultra vires (beyond powers) — invalid.

Example:

• Minister issues travel ban without statutory power
• No authorization → unlawful

---

2. Rationality

Question: Is there rational connection between:

• The action taken, AND
• The purpose for which power was given?

Similar to PAJA reasonableness (Bato Star) but applies more broadly.

Example:

• Statute authorizes Minister to "regulate food safety"
• Minister bans all green vegetables
• Irrational → unlawful (no safety basis for color-based ban)

---

3. Procedural Fairness (Context-Dependent)

Question: Were affected persons given opportunity to be heard?

Not always required — depends on:

• Urgency
• Nature of decision
• Impact on rights

But: Generally, significant decisions affecting rights require some hearing.

---

🏛️ Key Cases on Legality

1. Fedsure v Greater Johannesburg (1998)

Facts: Municipality imposed levy without statutory authorization.

Court held:

"The exercise of public power is only legitimate where lawful... This is fundamental to the rule of law."

Principle: No inherent powers — government can only do what law permits.

---

2. Dawood v Minister of Home Affairs (2000)

Facts:

• Immigration law allowed Minister to make discretionary decisions
• No requirement to give reasons or hearing

Court held:

"The rule of law... requires that the exercise of public power... be rationally related to the purpose for which the power was given, and that it not be arbitrary."

Principle: Even if statute doesn't expressly require fairness, legality requires:

• Rationality
• Non-arbitrariness
• Procedural fairness (where appropriate)

---

3. Albutt v CSVR (2010)

Facts: President granted special remission to prisoners without considering victims.

Legality violation:

• Action authorized (President has pardon power)
• BUT: Failure to consider victims' interests = irrational
• Violated legality (rationality element)

---

4. Democratic Alliance v President (2013)

Facts: President refused to suspend Police Commissioner despite corruption allegations.

Legality violation:

• Focused on irrelevant considerations (political loyalty)
• Ignored relevant considerations (corruption)
• Irrational → violated legality

---

5. Economic Freedom Fighters v Speaker (2016) — Nkandla

Facts:

• President failed to comply with Public Protector's remedial action
• No specific PAJA violation (remedial action not "administrative action")

Court used legality:

"All exercises of public power must comply with the Constitution and the rule of law. The President's failure to comply with the remedial action was unlawful."

Principle: Legality applies even where PAJA doesn't — ensures no gaps in review.

---

⚖️ Legality vs PAJA: Comparison

Strategic choice: If PAJA applies, use it (more detailed). If PAJA doesn't apply or time limit missed, use legality.

---

💡 Practical Application

Scenario 1: Presidential Pardon

Facts: President pardons convicted murderer without giving reasons.

PAJA? NO — Presidential pardons are excluded (executive power under Constitution).

Legality? YES

Analysis:

1. Authorized? YES (Constitution gives President pardon power)
2. Rational? Unclear — no reasons given
3. Procedurally fair? Victims not consulted (Albutt)

Result: May violate legality (rationality + fairness elements).

---

Scenario 2: Municipal By-Law

Facts:

• Municipality passes by-law requiring all businesses to close at 6pm
• No consultation with businesses
• Statute: "Municipality may regulate trading hours"

PAJA? YES — by-law is administrative action.

Legality? ALSO YES — can use both.

PAJA grounds:

• Section 6(2)(b) — Mandatory consultation not done (if statute requires)
• Section 6(2)(h) — Unreasonable (blanket 6pm for all businesses irrational)

Legality grounds:

• Rationality — Is 6pm closure rationally connected to statutory purpose? Unlikely for all businesses.
• Procedural fairness — Businesses should have been consulted.

Strategy: Plead both PAJA and legality to cover all bases.

---

Scenario 3: Time Limit Missed

Facts:

• Municipality refused building permit 2 years ago
• Applicant only now realizes it was unlawful
• 180-day PAJA limit passed

PAJA? NO — time limit missed.

Legality? YES — no fixed time limit (if delay reasonable).

Applicant must explain:

• Why delay? (didn't know it was reviewable)
• Why should court hear it now? (still affects rights — can't build)

Court may condone delay if explanation acceptable.

---

💡 Exam Strategy

When to Discuss Legality

Always consider BOTH PAJA and legality in answers:

Step 1: Is it administrative action?

• If YES → PAJA applies

Step 2: Does PAJA exclusion apply?

• If YES → Use legality instead

Step 3: Even if PAJA applies, mention legality

• "Alternatively, the decision violates the principle of legality because..."

Why? Shows comprehensive understanding; covers gaps.

---

Sample Answer Structure

Question: "President dismisses Public Protector. Advise on review grounds."

Answer:

"PAJA: The dismissal may not be 'administrative action' under PAJA — it's an executive power under the Constitution (s 194). Even if it is administrative action, it may be excluded under PAJA s 1.

Legality: The dismissal is reviewable under the principle of legality (Pharmaceutical Manufacturers).

1. Authorization: Section 194 allows President to initiate removal only if:

• Findings of misconduct/incapacity by committee
• 2/3 majority in National Assembly

If President dismissed without following Section 194 process → not authorized → unlawful.

2. Rationality: Even if authorized, dismissal must be rationally connected to grounds in Section 194 (incapacity, misconduct, incompetence). If President acted for political reasons, decision is irrational (Democratic Alliance v President).

3. Procedural fairness: Public Protector must be given opportunity to respond to allegations (audi alteram partem). If President dismissed without hearing → procedurally unfair.

Conclusion: Dismissal violates legality if it was unauthorized, irrational, or procedurally unfair. Court can review under constitutional jurisdiction, even if PAJA doesn't apply."

---

⚠️ Common Mistakes

❌ Mistake 1: Thinking Legality Only Applies When PAJA Doesn't

Wrong: "PAJA applies, so I don't need legality."

Correct: Legality always applies. Even if PAJA applies, you can plead legality as alternative ground.

---

❌ Mistake 2: Confusing Legality with Lawfulness

Lawfulness (PAJA s 6(2)(a)-(f)): Specific statutory grounds

Legality: Broader constitutional principle (authorization + rationality + fairness)

Legality includes lawfulness but is wider.

---

❌ Mistake 3: Forgetting Legality Has No Fixed Time Limit

PAJA: 180 days

Legality: "Reasonable delay" (more flexible)

Strategic advantage: If PAJA time limit missed, use legality.

---

📚 Further Reading

Cases:

• Pharmaceutical Manufacturers v President (2000) — Legality test
• Fedsure v Greater Johannesburg (1998) — No inherent powers
• Dawood v Minister of Home Affairs (2000) — Rationality and fairness
• Democratic Alliance v President (2013) — Legality in action
• EFF v Speaker (2016) — Nkandla; legality applies broadly

Legislation:

• Constitution, Section 1(c) — Rule of law
• PAJA — Compare with legality

---

🎓 Study Summary

Legality = constitutional principle requiring all public power be:

1. Authorized by law
2. Rational (connected to purpose)
3. Procedurally fair (context-dependent)

Key case: Pharmaceutical Manufacturers (2000)

Legality vs PAJA:

• Legality: Broader, applies to all public power
• PAJA: Narrower, applies only to "administrative action"

Strategic use:

• If PAJA applies → use both
• If PAJA excluded → use legality
• If time limit missed → use legality

---

✅ Quick Revision Checklist

• Can you define legality?
• Can you cite Pharmaceutical Manufacturers test?
• Can you distinguish legality from PAJA?
• Can you explain when to use legality?
• Can you apply legality to a problem?

---

Need help with administrative law? Ask in the Community Q&A.

Tags: #legality #ruleoflaw #PharmaceuticalManufacturers #administrativelaw #rationality #PAJA #constitutionallaw