Administrative LawYERS | SOUTH AFRICA

Administrative law is foremost about good governance, and thus the legal principles governing the exercise of public power or performance of public functions by any entity, whether the state or a private body. On a more particular level, the field is concerned with ensuring that administrative actions, as defined in the Promotion of Administrative Justice Act, 2000 are performed lawfully, reasonably and procedurally fairly.

Public procurement is regulated by administrative law. For example, the award of a tender qualifies as administrative action for the purposes of the Promotion of Administrative Justice Act and will thus be regulated by the administrative law standards of lawfulness, reasonableness and procedural fairness in that legislation.

Caveat Legal’s administrative lawyers in South Africa advise on public power, regulatory decision-making, licensing, public procurement and administrative-law remedies. Caveat gives clients direct access to experienced lawyers without the overhead of a traditional large firm.

A business can challenge an administrative decision where it can show the decision was unlawful (the decision-maker didn’t have the power to make it), unreasonable (no rational decision-maker could have reached that outcome), or procedurally unfair (the business wasn’t given a fair opportunity to be heard before the decision was made). PAJA sets out these grounds of review, and the specific facts of the decision determine which grounds are available.

An internal appeal (where one is available) asks a more senior decision-maker within the same organ of state to reconsider the decision on its merits. A judicial review asks a court to assess whether the decision-making process itself was lawful, reasonable, and fair – a court generally won’t substitute its own view of the “right” outcome, only assess whether the process that got there was valid. Where an internal appeal is available, it usually needs to be exhausted before a court review can be brought.

PAJA generally requires a review application to be brought without unreasonable delay, and in any event within 180 days of the decision (or of becoming aware of it), though courts retain discretion to extend this in the interests of justice. The specific facts – including when the business became aware of the decision and its reasons – affect exactly how this timeline runs, so it’s worth treating this as a general position rather than a fixed rule for your specific case.

Decisions by bodies like Eskom, NERSA, and municipalities generally qualify as administrative action where they involve the exercise of public power or the performance of a public function that has a direct, external legal effect on a person or business – for example, a decision on grid connection, a tariff determination, or a licensing decision. Not every decision by a state-owned entity qualifies (some are purely commercial or contractual in nature), which makes correctly characterising the decision an important first step before deciding how to challenge it.