Substantive Reasoning and The Concept of ‘Administrative Action’
Author Glenn Penfold
Affiliations: Partner, Webber Wentzel; Visiting Senior Lecturer, University of the Witwatersrand
Source: South African Law Journal, Volume 136 Number 1, May 2019, p. 84 – 111
In giving meaning to the threshold concept of ‘administrative action’ in the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), courts should adopt a substantive, non-formalistic approach. Such an approach is mandated by the value-laden Constitution and its injunctions to interpret both the Bill of Rights and legislation so as to promote constitutional values. Substantive reasoning is more than the avoidance of formalism. It also means that courts are constrained by the constitutional and legislative text — a constraint that flows from the separation of powers and the rule of law. The challenge is to give meaning to the concept of ‘administrative action’ in a manner which promotes fundamental principles such as accountability, transparency and administrative justice, whilst respecting the text of PAJA. While a number of judicial decisions as to whether or not conduct amounts to ‘administrative action’ are imbued with substantive reasoning and stay on the path mapped out in the Constitutional Court’s jurisprudence, some appear to stray into formalism, while others veer off past what PAJA’s language would seem to permit.