In a July 2022 blog, we highlighted the tendency of our courts to invoke the Promotion of Administrative Justice Act (PAJA) and the principle of legality interchangeably in cases where review grounds exist under both. We explained that, despite the considerable overlap between PAJA and the principle of legality, everyone dealing with government and organs of state should bear in mind that PAJA is the legislation enacted to regulate administrative action. Accordingly, applicants challenging decisions that may amount to administrative action ought to rely on PAJA and, in the alternative, on the principle of legality in case the court finds that the decision does not amount to administrative action.
On 1 November 2024, the Cape Town High Court handed down a judgment demonstrating how a court ought to deal with the distinction between administrative action and other exercises of public power that do not amount to administrative action, such as executive action.
The matter concerned a municipal council’s unilateral decision to appoint councillors from a certain political party to serve on the council’s section 80 committees. Section 80 committees are established in terms of the Local Government: Municipal Structures Act to assist the executive committee or mayor of a municipal council.
The political party brought an application to review and set aside the appointments in terms of PAJA or, alternatively, under the principle of legality.
The court was required to determine whether the decision constituted administrative action or executive action. The court considered the following characteristics of the decision:
- The municipal council’s power to establish section 80 committees and appoint councillors to those committees is derived from the Constitution and the Municipal Structures Act. This power forms part of the broader executive functions of the municipal council.
- Section 80 committees serve as extensions of the municipal council’s policy-formulation role, in that they assist with strategic decision-making rather than the implementation of policy.
- The appointment of councillors to section 80 committees implicates the structural organisation of the municipal council, rather than the conduct of its daily bureaucratic functions.
- The decision to establish section 80 committees and appoint councillors to those committees involves the exercise of a discretionary power and the strategic allocation of resources by the municipal council.
Based on these factors, the court determined that the decision was an exercise of executive action, due to the decision being more closely related to discretionary policy formulation than routine implementation of policy. Accordingly, the decision was subject to the baseline standards of administrative justice under the principle of legality.
In applying those standards, the court found that the decision survived scrutiny, because:
- the municipal council did not act outside the powers conferred on it by the Municipal Structures Act and the relevant resolutions passed by the council; and
- the unilateral appointment of councillors was justified and rational in relation to the objectives of ensuring proper local governance and service delivery that is efficient and inclusive.
The review application was therefore dismissed with costs.
If the court had found that the decision was administrative action, the more rigorous standards of administrative justice imposed in terms of PAJA, such as its detailed procedural fairness requirements, might have led to a different result.
The case is Breede Valley Onhafhanklik v Speaker of Breede Valley Municipality and Others (2613/23) [2024] ZAWCHC 341 (1 November 2024).