A DEEP DIVE INTO THE

APPLICATION OF PAJA IN SOUTH

AFRICA
QUESTION 1

Introduction

South African administrative law faces significant challenges despite post-apartheid reforms.
Key issues include the complexity and inconsistent application of the Promotion of
Administrative Justice Act (PAJA), limited access to judicial review for marginalised groups,
and balancing administrative efficiency with accountability.

Complexity and Inconsistent Application of PAJA

A major challenge is the complexity and inconsistent application of PAJA provisions. The
broad and vague definition of "administrative action" leads to uncertainty and differing court
interpretations, as seen in Minister of Defence and Military Veterans v Motau (2014), where
the Constitutional Court called for clarity to avoid arbitrary decision-making.1 This lack of
uniformity hampers public understanding and compliance with the law.

Limited Access to Judicial Review for Marginalised Groups

Access to judicial review remains limited for marginalised groups due to high costs,
procedural complexities, and limited legal representation. These barriers often prevent
disadvantaged individuals from challenging administrative actions. The Mahlangu v Minister
of Social Development (2021) case exemplifies the struggle marginalised individuals face in
seeking justice.2

Balancing Efficiency and Accountability

Balancing efficiency and accountability in administration is another challenge. PAJA

mandates fairness and reasonableness, yet public officials find it difficult to comply without
reducing administrative efficiency. The Constitutional Court in Chairperson of the National

1
Minister of Defence and Military Veterans v Motau 2014 (5) SA 69 (CC).
2
Mahlangu v Minister of Social Development 2021 (1) SA 155 (CC).
Assembly v Public Protector (2023) emphasized the need for balance to uphold
constitutional values.3

Conclusion

Although reforms have strengthened South African administrative law, ongoing challenges
necessitate continued improvements to ensure consistent application, better access to
justice, and effective governance.

QUESTION 2

Introduction

The doctrine of separation of powers is a fundamental principle in constitutional democracies

that divides governmental authority among distinct branches: legislative, executive, and
judicial. This separation aims to prevent the concentration of power and protect against its
abuse, as theorised by Montesquieu and Madison.4

History

Separation of powers as per the South African Constitution, it is a fundamental idea that is
inferred by Constitutional Principle VI in Schedule 4 of the interim Constitution.5 This idea
necessitated the separation of powers to be included in the final Constitution, which would
not have been possible without its entrenchment. In Ex Parte Chairperson of the
Constitutional Assembly: In Re Certification of the Constitution of the Republic of South
Africa, 1996,6 the Constitutional Court upheld this, ruling that while the division of powers is a
necessary provision of the Constitution, it is not a strictly defined one.

Purpose

In South Africa's constitutional order, separation of powers serves a dual purpose. First, it
acts as a safeguard against tyranny by ensuring that no single branch can exercise
unchecked authority.7 Second, as O'Regan notes, it promotes "efficiency and institutional
integrity" of each governmental arm.8 This principle manifests in various ways within South

3
Chairperson of the National Assembly v Public Protector 2023 (2) SA 102 (CC).
4
Montesquieu, C. (1748). The Spirit of Laws. Book XI, Chapter 6.
5
Act No. 200 of 1993: Constitution of The Republic of South Africa, 1993
6
Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the
Republic of South Africa, 1996 1996 (4) SA 744 (CC). Certification of the Constitution of the Republic
of South Africa, 1996 [1996] ZACC 26 (6 September 1996)
7
South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC) at
para 22.
8
O'Regan, K. (2005). Checks and Balances Reflections on the Development of the Doctrine of
Separation of Powers. PER/PELJ, 8(1), p.146.
Africa's system. For instance, the Constitutional Court's power to review legislation ensures
legislative accountability.9 Similarly, the executive's actions are subject to judicial scrutiny, as
seen in cases challenging presidential appointments.10 The necessity of separation of
powers for institutional integrity is evident in how it allows each branch to develop
specialised expertise and maintain independence. The judiciary's ability to make impartial
decisions, for instance, is protected by its separation from political pressures.11

Conclusion

In conclusion, while South Africa may not have a "fully articulated doctrine," the separation of
powers remains crucial for maintaining checks and balances, promoting efficiency, and
preserving the integrity of governmental institutions. Its continued evolution and application
are essential for the country's constitutional democracy.

QUESTION 3

Introduction

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is a cornerstone of

administrative law in South Africa, giving effect to the constitutional right to just
administrative action. Its structure reflects a comprehensive approach to ensuring fairness,
transparency, and accountability in public administration.12

Definition

Section 1 of PAJA provides crucial definitions, most notably of "administrative action," which
determines the Act's scope of application.13 This definition has been subject to extensive
judicial interpretation, highlighting its significance in determining when PAJA's protections
apply.14

Procedural Justice

Sections 3 and 4 form the core of PAJA's procedural fairness requirements. Section 3 deals
with administrative actions affecting individuals, mandating notice, opportunity to be heard,
and clear reasons for decisions.15 Section 4 addresses actions affecting the public,

9
Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC)
at para 38.
10
Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC).
11
De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) at para 60.
12
Hoexter, C. (2012). Administrative Law in South Africa. Juta and Company Ltd, p. 351.
13
Promotion of Administrative Justice Act 3 of 2000, Section 1.
14
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC).
15
Act 3 of 2000, Section 3.
emphasising public participation and transparency.16 Section 5 enshrines the right to reasons
for administrative actions, a key element in promoting accountability.17 This provision
empowers affected parties to understand and potentially challenge decisions. Section 6
outlines grounds for judicial review, codifying both common law and constitutional
principles.18 This section provides a comprehensive framework for courts to assess the
legality and reasonableness of administrative actions.

Flexibility

Sections 7 and 8 deal with the procedure for judicial review and available remedies,
respectively. These sections balance the need for timely challenges with administrative
certainty.19 While PAJA aims to promote administrative justice, its implementation has faced
challenges. The complexity of its provisions, particularly the definition of administrative
action, has led to inconsistent application.20 Moreover, the Act's procedural requirements
have sometimes been criticized for potentially hampering efficient administration.21

Conclusion

PAJA's structure reflects a comprehensive approach to administrative justice, balancing

procedural safeguards with the need for effective governance. Its ongoing interpretation and
application continue to shape the landscape of administrative law in South Africa.

QUESTION 4

Introduction

Alternative Dispute Resolution (ADR) encompasses methods such as negotiation,

mediation, and arbitration to settle conflicts outside traditional court systems.22 The court's
stance in Airports Company South Africa Limited and Another v ISO Leisure OR Tambo (Pty)
Ltd23 raises critical questions about ADR's role in administrative law.

Benefits of ADR in Administrative Law

16
Act 3 of 2000, Section 4.
17
Act 3 of 2000, Section 5.
18
Act 3 of 2000, Section 6.
19
Act 3 of 2000, Section 7 and 8..
20
Quinot, G. (2010). Snapshot or participatory democracy? Political engagement as fundamental
human right. South African Journal on Human Rights, 26(2), 392-423.
21
Klaaren, J. (2006). Redlight, Greenlight: Fedsure Life Assurance v Greater Johannesburg
Transitional Metropolitan Council; Premier, Mpumalanga v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal. South African Journal on Human Rights, 22(1), 144-160.
22
Boulle, L. & Rycroft, A. (1997). Mediation: Principles, Process, Practice. Butterworths, pp. 4-5.
23
Airports Company South Africa Limited and Another v ISO Leisure OR Tambo (Pty) Ltd 2011(4) SA
642 (GSJ).
While I respectfully challenge the court's broad opposition to ADR in administrative law
cases, I acknowledge the legitimate concerns surrounding the privatisation of disputes
involving constitutional matters.24 A more nuanced perspective that permits limited use of
ADR in specific contexts could yield positive outcomes. ADR often offers a quicker and less
expensive means of resolving disputes compared to conventional litigation,25 which aligns
with the administrative law objective of promoting efficient governance. Moreover, ADR
processes can be tailored to specific administrative contexts, potentially resulting in more
suitable resolutions.26

A Balanced Approach to ADR Use

However, it's crucial to implement safeguards when using ADR in administrative contexts.
Clear guidelines should differentiate which administrative disputes are suitable for ADR and
which necessitate judicial review.27 ADR processes must remain voluntary and adhere to
principles of procedural fairness.28 In particularly sensitive cases, ADR could be confined to
roles such as fact-finding, making recommendations, or delivering non-binding decisions.29
Additionally, maintaining the possibility of judicial review for ADR outcomes in cases
involving significant public interest or constitutional questions is essential.30

Safeguards and Limitations for ADR

Various statutes, including the Public Protector Act and the Tax Administration Act, explicitly
sanction the use of ADR within administrative settings.31 This indicates a legislative intent to
incorporate ADR where appropriate.

Conclusion

While the court's reservations are understandable, adopting a well-structured approach to

ADR in administrative law could enhance the efficiency and effectiveness of dispute
resolution without undermining constitutional values. This balanced view acknowledges the
potential benefits of ADR while respecting the unique considerations that apply to
administrative and constitutional matters.
24
Hoexter, C. (2012). Administrative Law in South Africa. Juta and Company Ltd, pp. 104-106.
25
Kumaraswamy, M. (1997). Appropriate Appraisal and Apportionment of Megaproject Risks. Journal
of Professional Issues in Engineering Education and Practice, 15(4), 51.
26
Brand, J. et al. (2015). Commercial Mediation: A User's Guide. Juta and Company Ltd, pp. 25-30.
27
Hofmann, Y. (2010). Mediation in Modern Administrative Law. In Galligan, D.J. (ed.), Administrative
Law in a Changing State. Hart Publishing, p. 145.
28
Kidd, M. (2015). Alternatives to Judicial Review. In Quinot, G. (ed.), Administrative Justice in South
Africa: An Introduction. Siber Ink, pp. 118-120.
29
Cane, P. (2011). Administrative Law. Oxford University Press, pp. 378-380.
30
Plasket, C. (2002). The Exhaustion of Internal Remedies and s7(2) of the Promotion of
Administrative Justice Act 3 of 2000. South African Law Journal, 119, 50.
31
Public Protector Act 23 of 1994, s 6(4); Tax Administration Act 28 of 2011, s 107(5).
QUESTION 5

Introduction

The Public Protector is one of the key institutions established under the South African
Constitution to uphold democracy, transparency, and accountability in public administration.
As an independent body, the Public Protector plays a crucial role in investigating
misconduct, maladministration, and abuse of power within state affairs, thereby serving as a
vital check on government authority. This essay explores the functions and significance of
the Public Protector, examines its role as a specialised oversight body, and evaluates its
contribution to administrative justice and constitutional democracy in South Africa.

Definition of The Public Protector

The Public Protector is a constitutionally mandated office in South Africa, established to

investigate any conduct in state affairs or public administration that is deemed improper or
harmful. As outlined in Chapter 9 of the South African Constitution,32 the Public Protector
serves as an independent institution that promotes constitutional democracy by ensuring
accountability and transparency in public administration. The office is mandated to function
without fear, favour, or prejudice and is empowered to take remedial actions against any
maladministration, abuse of power, or corruption uncovered in its investigations.33

The Public Protector is appointed by the President of South Africa upon the recommendation
of the National Assembly, which follows a transparent selection process. To ensure
impartiality and credibility, the officeholder must be a South African citizen with a legal
background and must have no political affiliations.34 This independence from government
influence is crucial for the effective execution of the Public Protector's mandate, free from
external interference.35

Functions of the Public Protector

The Public Protector's functions are varied and primarily focus on promoting good
governance and ethical conduct within public administration. The office is responsible for
investigating complaints from the public concerning government services, conduct, and
policies, and it can also initiate its own investigations if there are indications of
maladministration or corruption.36 A crucial role of the Public Protector is mediating disputes

32
Constitution of the Republic of South Africa, Chapter 9.
33
The Constitution of the Republic of South Africa, Section 182(1).
34
Public Protector Act 23 of 1994, Section 6.
35
Public Protector Act 23 of 1994, Section 6(4)(b).
36
Economic Freedom Fighters v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC)
para 52.
between the state and individuals or entities when allegations of unfair or improper conduct
arise.37

Additionally, the Public Protector has the authority to make findings, issue reports, and
recommend corrective actions to government bodies. Although these recommendations are
not legally binding, they carry significant moral authority and are often followed by public
officials to avoid legal challenges and public scrutiny.38 The Public Protector also plays an
educational role by informing the public about their rights and the standards of service they
should expect from the state, further enhancing transparency and accountability.39

The Role of the Public Protector as a Specialized Oversight Body

The Public Protector functions as a specialised oversight entity that is crucial to the
reinforcement of South Africa's constitutional democracy. As an independent body, it holds
public officials and institutions accountable for their actions, ensuring adherence to principles
of good governance, transparency, and ethical conduct.40 This oversight role is fundamental
in a democratic society, where the rule of law must be upheld, and the exercise of public
power must be responsible and just.41

Acting as a watchdog over public administration, the Public Protector ensures that
government actions do not infringe upon individual rights and that public resources are
utilised appropriately.42 The office promotes administrative justice by verifying that
government actions are lawful, reasonable, and procedurally fair. By investigating
complaints, it provides a mechanism for individuals to challenge the actions of government
officials and agencies, thereby strengthening accountability and transparency in public
administration.43

The Public Protector's Contribution to Administrative Justice and Constitutional

Democracy

The Public Protector plays a significant role in promoting administrative justice and
upholding constitutional democracy in South Africa by acting as a check on executive power
and ensuring that government entities operate within the legal framework.44 The office

37
Constitution of the Republic of South Africa, 1996, Section 33.
38
Public Protector South Africa, "State of Capture" Report No. 6 of 2016/17.
39
Public Protector South Africa, "State of Readiness of the South African Social Security Agency
(SASSA) to Take Over the Payment of Social Grants" Report No. 11 of 2017/18.
40
Klaaren, J., "The South African 'Public Protector': The Importance of Constitutional Design" (2017)
46(2) International Journal of Constitutional Law 279-289.
41
Economic Freedom Fighters v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC).
42
Ibid.
43
Public Protector Act 23 of 1994, Section 6.
44
Economic Freedom Fighters v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC).
enhances transparency by investigating complaints against public officials and making its
findings publicly available. Its investigations and recommendations help identify and correct
systemic issues in public administration, contributing to more efficient and accountable
governance.45

Nonetheless, the Public Protector's effectiveness in promoting administrative justice and

constitutional democracy has been debated. Critics argue that the office has sometimes
been politicised, particularly under certain incumbents, compromising its impartiality and
independence. For example, during the tenure of former Public Protector Advocate Busisiwe
Mkhwebane, several reports were challenged and set aside by the judiciary on grounds of
irrationality and bias, raising concerns about the office's ability to function without political
influence.46

Despite these challenges, the Public Protector remains a critical institution in maintaining
constitutional democracy in South Africa. The office provides an essential platform for
ordinary citizens to hold the government accountable, especially in a context where public
officials might otherwise act with impunity. Even when its findings are contested in court, the
Public Protector's role in initiating investigations and prompting judicial review contributes to
upholding the rule of law and ensuring government scrutiny.47

Examples of Investigations

Two significant investigations illustrate the Public Protector's role in promoting accountability
and transparency. The first is the "Nkandla" investigation, which examined the use of public
funds for upgrades to former President Jacob Zuma's private residence. The 2014 report,
titled Secure in Comfort, determined that President Zuma had unduly benefited from state
funds amounting to approximately R246 million, which were used for non-security-related
upgrades at his Nkandla homestead. The Public Protector recommended that President
Zuma repay a portion of these funds, leading to a landmark 2016 Constitutional Court ruling
that affirmed the binding nature of the Public Protector's remedial actions and reinforced the
authority of the office.48

The second example is the "State of Capture" investigation,49 which examined allegations of
corruption and undue influence by the Gupta family over government officials, including
former President Jacob Zuma. Released in 2016, the report detailed how the Gupta family

45
Ibid.
46
Klaaren, J., "The South African 'Public Protector': The Importance of Constitutional Design" (2017)
46(2) International Journal of Constitutional Law 279-289.
47
Ibid.
48
Public Protector South Africa, "Secure in Comfort" Report No. 25 of 2013/14.
49
Public Protector South Africa, "State of Capture" Report No. 6 of 2016/17.
allegedly manipulated state appointments and contracts to benefit their businesses. The
findings of this investigation were pivotal in triggering a broader inquiry into state capture,
resulting in the establishment of the Zondo Commission, which further examined corruption
and maladministration in South Africa.50

The office's contribution to administrative justice is evident in its role in ensuring that
administrative actions are lawful, reasonable, and procedurally fair. By providing a platform
for citizens to challenge government decisions and actions, the Public Protector enhances
access to justice, particularly for those who may not have the means to pursue legal action
through the courts. In the words of former Public Protector Thuli Madonsela, "When
government fails, the Public Protector must prevail." This sentiment encapsulates the critical
role of the Public Protector in South Africa's democratic landscape, serving as a beacon of
hope for citizens seeking justice and accountability in public administration.51

Conclusion

The Public Protector is vital in promoting administrative justice and constitutional democracy
in South Africa. As an independent oversight body, it ensures that public officials and
institutions adhere to the principles of good governance, transparency, and accountability.
Despite facing criticism and challenges, the office continues to serve as a key mechanism
for upholding the rule of law and protecting citizens' rights. Through its investigations and
recommendations, the Public Protector helps prevent and rectify maladministration and
corruption, ultimately strengthening South Africa's democratic governance framework.52

REFERENCE LIST

The Constitution

The Constitution of the Republic of South Africa.

Legislation

1. Act No. 200 of 1993: Constitution of The Republic of South Africa, 1993

2. Promotion of Administrative Justice Act 3 of 2000

3. Public Protector Act 23 of 1994

50
Ibid
51
Madonsela, T., "The Role of the Public Protector in Protecting Human Rights and Deepening
Democracy" (2013) 27(1) Speculum Juris 1-12.
52
Klaaren, J., "The South African 'Public Protector': The Importance of Constitutional Design" (2017)
46(2) International Journal of Constitutional Law 279-289.
4. Tax Administration Act 28 of 2011

Case Law

1. Minister of Defence and Military Veterans v Motau 2014 (5) SA 69 (CC)

2. Mahlangu v Minister of Social Development 2021 (1) SA 155 (CC)

3. Chairperson of the National Assembly v Public Protector 2023 (2) SA 102 (CC)

4. Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the

Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)

5. De Lange v Smuts NO and Others 1998 (3) SA 785 (CC)

6. Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC)

7. Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA
416 (CC)

8. South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA
883 (CC)

9. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA
490 (CC)

10. Airports Company South Africa Limited and Another v ISO Leisure OR Tambo (Pty) Ltd
2011(4) SA 642 (GSJ)

11. Economic Freedom Fighters v Speaker of the National Assembly and Others 2016 (3)
SA 580 (CC)

Academic Writings

1. Montesquieu, C. (1748). The Spirit of Laws. Book XI, Chapter 6.

2. O'Regan, K. (2005). Checks and Balances Reflections on the Development of the

Doctrine of Separation of Powers. PER/PELJ, 8(1), p.146.

3. Hoexter, C. (2012). Administrative Law in South Africa. Juta and Company Ltd.

4. Klaaren, J. (2006). Redlight, Greenlight: Fedsure Life Assurance v Greater Johannesburg

Transitional Metropolitan Council; Premier, Mpumalanga v Executive Committee, Association
of State-Aided Schools, Eastern Transvaal. South African Journal on Human Rights, 22(1),
144-160.
5. Quinot, G. (2010). Snapshot or participatory democracy? Political engagement as
fundamental human right. South African Journal on Human Rights, 26(2), 392-423.

6. Boulle, L. & Rycroft, A. (1997). Mediation: Principles, Process, Practice. Butterworths.

7. Kumaraswamy, M. (1997). Appropriate Appraisal and Apportionment of Megaproject

Risks. Journal of Professional Issues in Engineering Education and Practice, 15(4), 51.

8. Brand, J. et al. (2015). Commercial Mediation: A User's Guide. Juta and Company Ltd.

9. Hofmann, Y. (2010). Mediation in Modern Administrative Law. In Galligan, D.J. (ed.),

Administrative Law in a Changing State. Hart Publishing.

10. Kidd, M. (2015). Alternatives to Judicial Review. In Quinot, G. (ed.), Administrative

Justice in South Africa: An Introduction. Siber Ink.

11. Cane, P. (2011). Administrative Law. Oxford University Press.

12. Plasket, C. (2002). The Exhaustion of Internal Remedies and s7(2) of the Promotion of
Administrative Justice Act 3 of 2000. South African Law Journal, 119, 50.

13. Klaaren, J. (2017). The South African 'Public Protector': The Importance of Constitutional
Design. International Journal of Constitutional Law, 46(2), 279-289.

14. Public Protector South Africa. (2017/18). State of Readiness of the South African Social
Security Agency (SASSA) to Take Over the Payment of Social Grants. Report No. 11.

15. Public Protector South Africa. (2016/17). State of Capture. Report No. 6.

16. Public Protector South Africa. (2013/14). Secure in Comfort. Report No. 25.

17. Madonsela, T. (2013). The Role of the Public Protector in Protecting Human Rights and
Deepening Democracy. Speculum Juris, 27(1), 1-12.