One of the functions of the Master of the High Court is to compile a panel of suitable candidates to be appointed as liquidators or trustees of insolvent persons and to remove people who are unsuitable. The adding or exclusion of persons from the panel is administrative action for the purposes of the Promotion of Administrative Justice Act and can be reviewed by a court.
Establishing a panel of approved functionaries facilitates the exercise of the Master’s discretion in making appointments from amongst people in whom the Master has faith. The panel is a list of persons who have shown themselves to have the necessary skills, qualifications, experience, expertise and integrity to be on the panel. Although keeping of the panel has no statutory base it is a tool used for the implementation of a power bestowed on the Master by the insolvency legislation. The appointment or removal of persons from the list adversely affects the rights not only of the individuals concerned but the creditors of insolvent estates as well.
Formulation of the list is clearly administrative action.
As a result of this finding in Motala v The Master of the North Gauteng High Court, Pretoria the appellant lost his challenge to his removal from the list because, except in special circumstances, a decision must be challenged within 180 days of that event as required by the law. The appellant’s attempt to get back on the list was also defeated for other reasons including his unsuitability for the panel appointment.
Administrative action is the basis of the functioning of the state because it is through exercising administrative powers that the state acts. Whenever an organ of state exercises a public power or performs a public function empowered by the Constitution or legislation which adversely affects the rights of any person and has a direct external legal effect, it is administrative action. Administrative action is challenged on review.