Section 6(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) provides that any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action. Prior to the 30th of September 2016, the use of PAJA by organs of state was accepted as being legally correct, this meant that organs of state could use PAJA to review their own decisions or those of other organs of state. This position was changed by the Constitutional Court in the State Information Technology Agency Soc v Gijima Holdings judgement (the Gijima judgement).
The Gijima judgement tells us that PAJA was designed to benefit the citizens (the public), not the state. Basically, in terms of this judgement when an organ of state, acting in its own interest, applies to set aside its own administrative action or of other organs of state, PAJA does not apply. This means that they are not confined to placing reliance on the grounds of review set out in section 6 of PAJA and the timeframe to bring review proceedings in terms of section 7 of PAJA. They can only challenge the decisions in terms of the principle of legality.
The recent judgment in Compcare Wellness Medical Scheme v Registrar of Medical Schemes and Others (267/2020) has slightly changed the legal position regarding organs of state and their right to rely on PAJA. In this judgement the court ruled that there are circumstances in which the government or organs of state can use the provisions of PAJA to challenge administrative decisions. These circumstances are when the organ of state is challenging a decision for the benefit of the citizens; when it is acting in the interest of the public.
In this case the court found that when an organ of state brings an application in the public’s interest they step into the shoes of the members of the public on whose behalf they litigate and, in that sense become bearers of the rights to just administrative action, despite being organs of state. In this judgement the court found that when the Registrar and the Council brought their application in the public interest, they became bearers of the right to just administrative action. They therefore had to comply with the provisions of section 7 of PAJA by bringing their review application within the timeframe of 180 days.
Subsequently, if PAJA is applicable, organs of state must comply with the timeframe to review administrative decisions. Sections 6 and 7 of PAJA provides for the institution of proceedings for the judicial review of an administrative action by any person not later than 180 days after the date on which the person concerned became aware of the administrative action or upon the completion of proceedings in terms of the internal remedies.
An example to explain this development in administrative law: if the power utility (Eskom), empowered by the Electricity Act, decides to cut off the bulk electricity supply to a municipality because the municipality has failed to pay for electricity supplied the decision of Eskom amounts to administrative action. But who is actually affected by this decision? The obvious answer is that it is the residents of the Municipality’s jurisdiction. So, when the municipality decides to challenge Eskom’s decision, it does so on behalf of the citizens. As a result of the Compcare Wellness Medical Scheme judgement the municipality must comply with the provisions of section 7 of PAJA if it wants to challenge Eskom’s decision.
From this recent development in law it can be deduced that this is a breakthrough for organs of state as it has been made clear that they may now rely on PAJA to review administrative decisions if they are bringing such review proceedings in the interest of the public.
Contributor: Amanda Mkhwanazi (Candidate Legal Practitioner)
under the supervision of: Agrippa Mpungose (Director)
Email: agrippa@atmd.co.za
Tel: +2733 815 1550
