South Africa: Decisions And Consequences: Taking On A Local Authority That Has Not Performed

In terms of section 33 of the Constitution of the Republic of South Africa Act No. 108 of 1996 ("the Constitution"), everyone is guaranteed the right to procedurally fair administration action. The Constitution, however, stops short of telling us what administrative action is and for the layperson the term is merely legal jargon. However, administrative action affects all of us on a daily basis. It is concerned primarily with the decisions that are made by the State in its various guises as, amongst others, a municipality, a government department, provincial council or the actions of various ministers both provincially and nationally. Therefore administrative action has far reaching consequences for a number of people on a daily basis. This would include, in the context of property transactions, decisions by local authorities concerning whether or not to issue certain certificates or information required to facilitate the sale of property by furnishing the correct information timeously.

Administrative action, as a term, is defined in the Promotion of Administrative Justice Act No. 3 of 2000 ("PAJA"). PAJA found its way into our law by virtue of section 33 of the Constitution. The Constitution required that legislation be enacted so as to give content to the right to procedurally fair administrative action. So, a definition is now included in our law, which is set out in section 1 of PAJA, of "administrative action".

However, the definition does not make the administrative action, as a cause of action in law, more accessible to the layman and merely introduces more jargon into the debate. However, what is now apparent is that the decisions of certain government and state officials, departments and local authorities are no longer entirely unassailable. Therefore any person who exercises a function that is awarded to him or her or it by legislation, is conducting himself for the purposes of PAJA, in the context of administrative action.

Since the term "administrative action" is now defined to include any person who exercises a power awarded to him or her or it by legislation, this extends the scope and ambit of administrative action beyond the traditional realm of its application to the decision-making powers of government or state officials. Therefore the following considerations must be taken into account when deciding whether or not administrative action has occurred -

• the nature of the administrative action;
• whether or not the administrative action adversely affected the rights of the person concerned; and
• whether or not the administrative action had (1) a direct, (2) external and (3) legal effect, which means that: the action must (1) affect the complainant directly, (2) the complainant must be distinguishable from the administrator i.e. the person who has taken or failed to take the administrative action concerned and (3) the action must be legally binding on the person who is the subject of the administrative action.

The term "decision" is also defined in section 1 of PAJA. This includes a number of decision making processes, which are identified in the definition as follows -

" (a) making, suspending, revoking or refusing to make an order or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirements;

(f) pertaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing of an administrative nature, and the reference to a failure to take a decision must be construed accordingly".

The definition of "decision" is therefore broad and certainly capable of capturing most of the actions of government or state officials or functionaries that otherwise affect administrative rights.

Section 3 of PAJA affirms the right of everyone to procedurally fair administrative action. Section 3(2)(b) sets out the criteria that must be met in order for a decision to be procedurally fair. These criteria include the receipt of adequate notice of a decision, the receipt of clear reasons for a decision, a reasonable opportunity to make representations before a decision is made and adequate notice to request reasons for a decision.

In so far as reasons are requested for a decision, section 5 of PAJA becomes important.

Section 5 requires that anyone who has not been given reasons for any administrative action must, within a period of ninety days from the date upon which he or she became aware of the administrative action, place the administrator concerned on terms to provide reasons for the decision. The administrator must then furnish the reasons within ninety days from the date of receipt of the request. Should the administrator fail or refuse or neglect to answer any request for reasons, in terms of section 5(3), the administrator will be presumed, "in any proceedings for judicial review", to have taken the decision without good cause. This is an important strategic advantage in any consequent legal proceedings against the administrator as it relieves, to a degree, the burden that a plaintiff is required to discharge in order to show that the decision, against which he or she or it is seeking relief, is unfair.

Whilst the definition of "decision" has been discussed above, it is important to note that the term "decision" is defined both as a positive act and as an omission. Therefore the failure to make a decision is as actionable in terms of PAJA as the result is an incorrect or unfair decision. Section 6 of PAJA sets out the grounds upon which an administrator may be reviewed by a court. Those grounds include, in subsection (2)(g), "the action concerned consists of a failure to take a decision". There is therefore recognition in PAJA that legal action may be taken, on the basis of an administrative cause of action, in respect of the failure of an administrator to deal timeously with an issue that is otherwise quite crucial to the conclusion of a transaction such as a property sale transaction.

PAJA thus contains remedies to deal with decisions that are not made timeously or at all. This ensures that procedurally fair administrative action is available and so provides relief to those who otherwise would be left to deciphering the vagaries of the common law in order to establish a cause of action in the rather odd circumstances in which a decision does not exist.

Therefore, PAJA provides access to procedurally fair administrative action for those who are otherwise suffering as a result of a bureaucracy that sometimes fails to produce a decision whether positive or negative.

One must carefully consider one’s alternatives where one is incurring a loss or suffering damages as a result of a decision that has been pending for an unreasonable amount of time or has not been made or is unlikely to be made. The failure by a local authority, by way of an example, to timeously provide certificates and clearances in respect of the sale of a property, may indeed be subject to legal action based on its failure or refusal or neglect to make a decision timeously or at all in terms of PAJA.