Administrative Law

This book examines the principles of administrative law and just administrative action, the control of administrative action, the judicial review thereof and available remedies. The approach adopted in the first four editions has been retained, namely that administrative law is a specialized branch of constitutional law and that a sound knowledge of constitutional law and a thorough understanding of the Constitution of the Republic of South Africa, 1996 are prerequisites for an understanding of administrative law Cover Half Title Title Page Copyright Page Preface Contents PART 1 The founding principles of administrative law and just administrative action 1 Founding principles of administrative law 1 Introduction 2 The supremacy of the Constitution 3 The rule of law 3.1 The rule of law under the new constitutional dispensation 3.2 The boundary between the PAJA and the principle of legality 4 Founding principles of accountability, responsiveness, and openness 4.1 What do accountability, responsiveness, and openness mean? 4.1.1 Accountability 4.1.2 Responsiveness 4.1.3 Openness 5 The relationship between constitutional law and administrative law 5.1 The sphere of constitutional law 5.2 The sphere of administrative law 6 The development of the principles of administrative law 6.1 The distinction between general and specific administrative law 6.2 General administrative law 6.3 Specific administrative law 6.4 Administrative law under the pre-Constitution dispensation 6.5 Administrative law under the new constitutional dispensation 6.6 The constitutional right to just administrative action: section 33 of the Constitution 6.7 Just administrative action under the Promotion of Administrative Justice Act 3 of 2000 7 The concept ‘administrative action’ 8 The administrative-law relationship 8.1 The administrative-law relationship between government organs inter se 8.1.1 The relationship of cooperation 8.1.2 Voluntary relationships based on authority 9 Judicial review of administrative action 10 Doctrine of the separation of powers 11 Distinction between public and private law 11.1 Section 8(1) of the Constitution 11.2 Section 8(2) of the Constitution 11.3 Sections 24 and 25 11.4 The emergence of the welfare/benefactor state privatisation/outsourcing 2 The primary sources of administrative law 1 Introduction 2 The administrator 3 The distinction between a source of administrative power and a source of administrative law 3.1 Administrative power 3.2 The distinction between empowering legislation and prescriptive legislation 3.3 The role of statutory interpretation in determining the scope of administrative power 4 The constitutional right to just administrative action 4.1 Introduction 4.2 The position at common law 4.3 The right to administrative justice: section 33 of the Constitution 4.4 The normative basis for the exercise of all administrative action 4.5 Preliminary observations regarding the scope and ambit of section 33 4.6 The content of section 33: just administrative action Reasonableness/justifiability/proportionality Reasonableness under the 1996 Constitution The interim Constitution: the requirement of justifiability Proportionality 5 Procedural fairness The right to reasons under the PAJA 6 The Promotion of Administrative Justice Act 3 of 2000 – The PAJA 3 The subsidiary sources of administrative law 1 Introduction 2 Legislation as a source of administrative law 2.1 Parliamentary legislation 2.1.1 The Promotion of Access to Information Act 2 of 2000 (The PAIA) 2.2 The Protection of the State Information Bill 2.3 Provincial legislation as empowering legislation 2.4 Local government empowering legislation 2.5 Subordinate (delegated) legislation as empowering legislation: proclamations and regulations 2.6 ‘Impure’ legislation 2.7 Administrative ‘quasi’-legislation: internal circulars, guides, directives 3 Judicial precedent as a source of law 3.1 The schematic representation of the judiciary 3.2 Judicial precedent 4 Common law 5 Customary law 6 International law and foreign law 6.1 International law 6.2 Foreign law 7 Administrative practice 8 Estoppel 4 The separation of powers 1 Introduction 2 Legislative powers 2.1 Parliamentary powers 2.2 Provincial powers 2.3 Local government powers 3 Judicial powers 3.1 Judicial deference 4 Executive and administrative powers 4.1 The place of the administration in the traditional separation of powers 5 Cooperative governance 5 Transformative constitutionalism and its impact on administrative law 1 Introduction 2 The theory of transformative administrative action 3 Transformative constitutionalism 3.1 The meaning of transformation 4 Transformative adjudication 5 The transformation of the nature of administrative law – the culture of justification 5.1 The position under the previous system of government 5.2 The shift to a culture of justification 6 Transformative constitutionalism in practice 6.1 Transformative provisions in Chapter 1 of the Constitution: the founding principles 6.1.1 The supremacy of the Constitution 6.1.2 The rule of law 6.2 The Bill of Rights: Chapter 2 of the Constitution 6.2.1 Formal/material normative provisions in the Bill of Rights 6.2.2 Section 33: just administrative action 6.2.3 Section 32: right of access to information 6.2.4 The right of access to courts, tribunals, or fora 6.2.5 The limitations of rights: section 36 6.2.6 States of emergency: the suspension of fundamental rights: section 37 6.2.7 The enforcement of rights: locus standi – legal standing 6.2.8 Section 39: interpretation of the Bill of Rights 6.2.9 Chapter 9: state institutions which strengthen democracy and ensure accountability 6.2.10 Section 195 6 The administrative-law relationship and the subjects to this relationship 1 Introduction 2 Legal subjects 2.1 Organ of state 2.2 Functionaries and institutions 2.3 Natural and juristic persons 2.4 The state/public administration 2.5 Traditional leaders 3 The judicial interpretation of an organ of state 3.1 The control test: the narrow test 3.2 The public power test 3.3 Organ of state under the new dispensation 4 Private persons as legal subjects 5 Government authority or public power 5.1 What is an administrative power/public power or public function? 5.2 The meaning of public power or public function 5.3 The judicial interpretation of public power/public function 5.3.1 Public power/public function 5.3.2 Public 5.4 The control of public power and public functions 6 The administrative-law relationship 6.1 The relationship of inequality 6.2 The relationship between government organs inter se 6.3 The administrative-law relationship of inequality in contradistinction to the right to equality entrenched in the Bill of Rights 6.4 The general (objective) administrative-law relationship and the individual (subjective) relationship 6.4.1 The general relationship 6.4.2 The individual relationship 6.5 The two types of individual administrative-law relationship based on authority 6.5.1 The administrative-law relationship within the same authoritative hierarchy 6.5.2 The independent relationship 6.6 The object of the administrative-law relationship 7 The concept ‘administrative action’ 1 Introduction 2 The scope, content and application of the term ‘administrative action’ 2.1 Section 33: the right to just administrative action 2.2 The Promotion of Administrative Justice Act (PAJA) 3 Statutory exclusions from the concept of ‘administrative action’ 3.1 Exclusion of executive powers and functions of the President and the national executive 3.2 Executive powers and functions of the provincial executive 3.3 Executive powers or functions of a municipal council 3.4 Exclusion of the legislative functions of Parliament, a provincial legislature, or a municipal council 3.5 Exclusion of judicial officers/special tribunals/functions of traditional leaders from the application of the PAJA 3.5.1 Exclusion of judicial functions of a judicial officer 3.5.2 Decision to institute or continue a prosecution 3.5.3 The exclusion of a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Services Commission, in terms of any law 3.5.4 Any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act 2 of 2000 3.5.5 Any decision taken or failure to take a decision in terms of section 4(1) of the Promotion of Administrative Justice Act 3 of 2000 4 Judicial decisions relating to the concept ‘administrative action’ 4.1 What does not constitute administrative action? 4.2 What does constitute ‘administrative action’? 5 The qualifications to the concept ‘administrative action’ 5.1 Introduction 5.2 Decision 5.2.1 Does the exercise of discretionary powers constitute a decision? 5.2.2 Does delegated (subordinate) legislation constitute a decision? 5.2.3 Does a decision refer to final matters only? 5.2.4 The refusal to take a decision 5.2.5 Decision ‘of an administrative nature’ 5.2.6 Made . . . under an ‘empowering provision’ 6 Decision by an organ of state or a natural or juristic person 6.1 Organ of state 6.2 Institutions or functionaries 6.3 A natural or juristic person exercising a public power or performing a public function 6.4 Exercising a public power or performing a public function 6.5 Are private bodies which exercise public functions such as the regulation of professional sport, organs of state? 6.6 Actions expressly excluded by the Act 6.7 ‘which adversely affects the rights of any person’ 6.8 The meaning of ‘rights’ 6.9 ‘. . . that has a direct external legal effect’ 6.9.1 Direct effect 6.9.2 Legal effect 6.9.3 External effect 8 The categories of administrative action and legal enforcement 1 Introduction 2 Administrative action 2.1 Administrative legislative acts (subordinate) legislation 2.1.1 Impure subordinate legislation 2.1.2 The characteristics of administrative legislative actions 2.1.3 Proposals put forward by Justice O’Regan 2.2 Actions by tribunals: administrative judicial actions 2.2.1 Examples of tribunals (judicial administrative bodies) 2.3 Purely administrative actions 2.3.1 Unilateral administrative action 2.3.2 Multilateral action 3 The position of private bodies or voluntary associations 4 The legal force of administrative action 4.1 Material legal force 4.2 Formal legal force 5 The commencement of the legal force of administrative action 6 Enforcement of administrative action or ensuring the legal force of administrative action 7 The termination of the legal force of administrative action 7.1 Administrative legislative actions 7.2 Administrative judicial actions 7.3 Purely administrative actions 7.3.1 Invalid dispositions 7.3.2 Valid administrative dispositions 7.4 The distinction between void and voidable action PART 2 The general powers, duties and functions of the administrator 9 The requirements for the lawful exercise of general administrative powers and functions 1 Introduction 2 The general powers, duties and functions of administrators 3 General administrative powers, duties and functions 3.1 Administrative powers 3.1.1 The power must be exercised by the competent authority 3.2 Administrative duties 3.3 Administrative functions 3.4 Public powers and public functions 4 The scope of administrative power 4.1 Express and tacit administrative powers 4.2 Discretionary powers 4.3 Peremptory and directory powers 4.4 Original and delegated powers 4.4.1 Original powers 4.4.2 Delegated powers 4.5 Executive/prerogative and administrative powers 10 The administrator’s duty to act fairly: section 3 of the PAJA 1 Introduction 2 The deprivation and determination theories 3 Procedurally fair administrative action affecting any person: section 3(1) 3.1 The content of section 3(1) 3.1.1 Administrative action which materially and adversely affects rights 3.1.2 Administrative action which materially and adversely affects . . . legitimate expectations 3.1.3 The doctrine of legitimate expectation 4 Fair administrative procedure depends on the circumstances of each case: section 3(2)(a) 5 Basic requirements of fairness: mandatory provisions of fairness in terms of section 3(2)(b) 5.1 Adequate notice in terms of subparagraph (i) 5.2 A reasonable opportunity to make representations in terms of subparagraph (ii) 5.3 A clear statement of the administrative action as required by subparagraph (iii) 5.4 Adequate notice of any right of review or internal appeal as required by subparagraph (iv) 5.5 Adequate notice of the right to request reasons in terms of section 5, subparagraph (v) 6 Discretionary powers relating to procedural fairness 6.1 Discretionary power to allow a person to obtain assistance, and in serious cases, legal assistance in terms of paragraph (a) 6.1.1 Assistance 6.1.2 Legal representation 6.2 Discretionary power to allow a person to present and dispute information and arguments in terms of paragraph (b) 6.2.1 The extent of the right to present and dispute information and arguments 6.3 Discretionary power to allow a person to appear in person in terms of paragraph (c) 7 Departures from the requirements of fair procedure in terms of section 3(4) of the PAJA 7.1 Departure from the requirements of section 3(2) if it is reasonable and justifiable in the circumstances: section 3(4)(a) 7.2 Ways of determining whether any departure from the requirements of section 3(2) is indeed ‘reasonable and justifiable in the circumstances’: section 3(4)(b) 7.3 Factors to be taken into account when considering the reasonableness and justifiability of the departure (limitation) 8 Fair but different procedure in terms of section 3(5) 11 Procedural fairness which affects the public: section 4 of the PAJA 1 Introduction 1.1 Subordinate legislation 1.2 Rule-making 2 The purpose of section 4 of the PAJA 3 The exclusion of a decision in terms of section 4(1) from the definition of administrative action 4 Does rule-making which affects the public constitute administrative action? 5 The scope, content and application of section 4 5.1 The public 5.2 Rights of the public 5.3 Rights of the public must be materially and adversely affected 6 Decision-making in terms of section 4(1) and the procedures to be followed 6.1 The procedures provided for the chosen options 6.1.1 A public enquiry in terms of section 4(2) 6.1.2 A notice and comment procedure in terms of section 4(3) 7 Departures from the prescripts of section 4(1), (2) and (3) 12 Written reasons for administrative action: section 5 of the PAJA 1 Introduction 2 Section 5 of PAJA 3 The content of section 5 3.1 The request for reasons in terms of section 5(1) 3.2 Adequate reasons as a standard 3.3 Failure to provide adequate reasons in writing leads to an ‘adverse inference’ 3.4 Departures from the requirement to furnish written reasons in terms of section 5(4) 3.4.1 Refusal to furnish reasons must be reasonable and justifiable in the circumstances 3.4.2 Factors to determine whether the refusal to furnish reason was reasonable and justifiable 3.5 A ‘fair but different’ procedure in terms of section 5(5) 3.6 Providing reasons without the need for a request in terms of section 5(6) PART 3 The control of administrative action 13 The control of administrative action under a system of constitutional supremacy 1 Introduction 2 Extra-judicial control 2.1 Parliamentary control 2.2 Public participation in the new dispensation 2.3 Control by state institutions supporting democracy 2.3.1 The Public Protector 2.3.2 The Human Rights Commission 2.3.3 The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities 2.3.4 The Commission for Gender Equality 2.3.5 The Auditor-General 2.3.6 The Electoral Commission 2.3.7 The independent authority to regulate broadcasting 2.3.8 The Truth and Reconciliation Commission 2.4 Internal administrative control 2.4.1 Introduction 2.4.2 Internal control of the various forms of administrative actions 3 Judicial control 3.1 Introduction 3.2 Judicial control under the previous dispensation 3.3 Judicial control under the current constitutional dispensation 3.3.1 Which court has jurisdiction? 3.3.2 Should specialised administrative courts be established? 3.4 The distinction between judicial appeal and review 3.5 Common-law review 3.6 Constitutional review 14 Statutory grounds of judicial review: section 6(2) of the PAJA 1 General introduction to the judicial review of administrative action 2 The position at common law 3 The status of customary law 4 Who is the administrator? 5 The conflict between section 33 and the PAJA 6 The purpose of section 6 of the PAJA 7 Section 6(1) – the general provision 8 The grounds of review in section 6(2) 8.1 Section 6(2)(a) 8.1.1 Section 6(2)(a)(i) – unauthorised action 8.1.2 Unauthorised delegation: section 6(2)(a)(ii) 8.1.3 Bias or a reasonable suspicion of bias 15 Non-compliance with mandatory and material procedures and conditions: section 6(2)(b) of the PAJA 1 Introduction 2 The effect of the distinction between mandatory and directory provisions 2.1 Circumstances in which the courts have not recognised the power of dispensation 2.2 Circumstances in which the courts have recognised the power to grant dispensation 2.3 Judicial decisions relating to the distinction between mandatory and directory provisions 2.3.1 Pre-1994 judicial decisions 2.3.2 Post-1994 judicial decisions 16 Judicial review of procedural fairness: section 6(2)(c) of the PAJA 1 Introduction 2 The common-law antecedents of procedural fairness 2.1 The application of the rules of natural justice in the pre-democratic period 2.2 The content of the principles of natural justice: the audi alteram partem rule (the duty to act fairly) 2.2.1 The individual must be given an opportunity to be heard on the matter at a hearing 2.2.2 The party must be properly informed of considerations which count against him or her 2.2.3 The right to reasons 2.3 The application of the common-law principles of natural justice in the new constitutional dispensation 3 The scope and content of the right to procedural fairness 3.1 Striking a balance between the state’s duty to give effect to procedural fairness and the promotion of an efficient administration 3.2 The flexibility of fair procedure 3.3 The content of the constitutional right to procedural fairness 3.3.1 The provisions of the PAJA 3.3.2 The provisions of the common law 3.3.3 The interpretation of procedural fairness (under the interim and 1996 Constitutions) 3.4 When does the right to procedural fairness apply? 3.4.1 Preliminary investigations 3.4.2 Subordinate legislation 3.4.3 Decisions by tribunals 3.4.4 Mechanical administrative action 3.4.5 Decisions by tribunals of voluntary associations (‘domestic tribunals’) 3.4.6 Where the relationship is of a contractual nature 4 Substantive or procedural fairness? 5 Procedural fairness – before or after a decision is made 6 May procedural unfairness be cured on appeal? 17 The action was materially influenced by an error of law: section 6(2)(d) of the PAJA 1 Introduction 2 The distinction between error of law and error of fact 3 The traditional approach to error of law 3.1 Pre-1994 judicial decisions on jurisdictional and non-jurisdictional errors of law 3.2 The judicial approach in Hira v Booysen 4 Error of law under the PAJA 18 The review of discretionary power: section 6(2)(e) of the PAJA 1 Introduction 2 The scope of administrative discretionary power 3 Jurisdictional facts 3.1 Substantive jurisdictional facts 3.1.1 Subjectively worded jurisdictional facts 3.1.2 Objectively worded jurisdictional facts 3.2 Procedural jurisdictional facts 4 Control of an administrative discretionary power 4.1 Control by the legislature 4.2 Control by the administration 4.3 Control by the judiciary 5 The judicial review of discretionary power: section 6(2)(e) of the PAJA 5.1 Action taken for a reason not authorised by the empowering provision: section 6(2)(e)(i) 5.2 The action was taken for an ulterior purpose or motive: section 6(2)(e)(ii) 5.2.1 Ulterior purpose under the common law 5.2.2 Ulterior motive 5.2.3 The use of an unauthorised procedure to achieve an otherwise lawful object 5.3 The action was taken because irrelevant considerations were taken into account or relevant considerations were not considered: section 6(2)(e)(iii) 5.4 The action was taken because of the unauthorised or unwarranted dictates of another person or body: section 6(2)(e)(iv) 5.4.1 Unauthorised or unwarranted dictation 5.5 The action was taken in bad faith: section 6(2)(e)(v) 5.6 The action was taken arbitrarily or capriciously: section 6(2)(e)(vi) 19 The review of irrational, unreasonable, and disproportionate decision-making: section 6(2)(f) and (h) of the PAJA 1 Introduction A Irrationality as a ground of judicial review 1 Introduction 2 Section 6(2)(f)(i) – the action contravenes a law or is not authorised by the empowering provision 3 The constitutional requirement of rationality: section 6(2)(f)(ii) 3.1 Rationality under the interim Constitution 3.2 Rationality under the 1996 Constitution 3.3 Rationality review in terms of the PAJA 3.3.1 The action is not rationally connected to the purpose for which it was taken: section 6(2)(f)(ii)(aa) 3.3.2 The action is not rationally connected to the purpose of the empowering provision – section 6(2)(f)(ii)(bb) 3.3.3 The action is not rationally connected to the information before the administrator – section 6(2)(f)(ii)(cc) 3.3.4 The action is not rationally connected to the reasons given for it by the administrator – section 6(2)(f)(ii)(dd) B Unreasonableness as a ground of review 1 The meaning of unreasonable administrative action 1.1 The scope and meaning of unreasonableness in South African law 2 Unreasonable administrative action at common law 2.1 The symptomatic or traditional approach to unreasonable administrative action 2.2 The extended formal yardstick 3 Reasonableness under the interim Constitution 4 Reasonableness under the 1996 Constitution 5 Unreasonableness as a ground of review under the PAJA 6 Application of the reasonableness requirement to the various functions performed by the administration 6.1 The application of reasonableness in the sphere of subordinate legislation 6.2 The application of the reasonableness requirement to tribunals 6.3 The application of the reasonableness requirement to ‘purely’ administrative action C The role of proportionality in the control of administrative action 1 Introduction 2 The judicial interpretation of proportionality 3 Objections to the acceptance of disproportionality as a ground for review 4 The levels of scrutiny adopted by the courts in the review of irrationality, unreasonableness and disproportionality 20 Failure to take a decision as a ground of review: section 6(2)(g) 1 Introduction 2 The position at common law 3 The failure to take a decision in terms of the Constitution 3.1 Section 6(3)(a) of the PAJA 3.2 Section 6(3)(b) of the PAJA 21 Action that is otherwise unconstitutional or unlawful: section 6(2)(i) of the PAJA 1 The subsection as a catch-all residual or all-embracing provision 2 The phrase ‘otherwise unconstitutional’ 3 The phrase ‘otherwise unlawful’ 3.1 Vague and embarrassing administrative action 3.2 The use of an incorrect administrative procedure 3.3 Unlawful fettering of a discretionary power 3.4 Discretionary power fettered by contract 22 State liability 1 Introduction 2 The contractual liability of the state 2.1 The basis of the liability of the state 2.2 Contractual liability 3 Delictual liability 3.1 Introduction 3.2 Development of the common law in the sphere of delictual actions 3.3 The vicarious liability of the state for the delictual actions of its servants or employees 3.4 Is the state liable for its lawful administrative actions? 3.5 Unlawful administrative action 3.5.1 The elements of unlawful administrative action 4 Delictual liability for infringement of dignity 4.1 The delictual liability of the police 4.1.1 Liability of the state based on omissions by its organs of state 4.1.2 The control test 4.1.3 The influence of the Constitution and the South African Police Service Act 68 of 1995 on state liability 4.2 Liability of the state for military personnel 4.3 Liability of municipalities 5 State liability for the actions of the judiciary 6 State liability for legislative action 7 State liability for purely administrative action 8 The limitation of state liability by virtue of the presumption that the state is not bound by its statutes 9 The state has the power to alter its liability by way of legislation 9.1 The liability of the state where amnesty has been granted 10 The payment of compensation by the state 10.1 Introduction 10.2 Satisfaction of a final court order (sounding in money) 10.3 Compensation for wrongful medical treatment of persons by servants of the state 10.4 Compensation for occupational injury 23 The regulation of land reform 1 Introduction 2 Land invasion 3 The jurisdiction of the land claims court 4 Do land claims constitute administrative action? 5 The Restitution of Land Rights Act 22 of 1994 5.1 Examples of claims for restitution of lost land rights 6 The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) 7 The Upgrading of Land Tenure Rights Act 112 of 1991 8 The Extension of Security of Tenure Act 62 of 1997 (the ESTA) 9 The Land Reform (Labour Tenants) Act 3 of 1996 10 The Housing Act 107 of 1997 PART 4 Procedural issues surrounding the judicial review of administrative action 24 Procedural issues surrounding judicial review 1 Introduction 2 Jurisdictional issues 2.1 Introduction 2.2 The jurisdiction of the Constitutional Court and the High Courts or other courts of similar status 2.3 The jurisdiction of magistrates’ courts 3 Requirements relating to statutory time-limits 3.1 Introduction 3.2 The interpretation and application of time-limits 3.3 The constitutionality of time-limits 3.4 The judicial approach to time-limits 3.4.1 Pre-1994 judicial decisions 3.4.2 Post-1994 judicial decisions 3.5 Unreasonable delay under the PAJA 3.5.1 Review proceedings must be instituted within 180 days of the conclusion of internal remedies 3.5.2 Review proceedings must be instituted 180 days from the date when the person concerned was informed of or became aware of the action and the reasons for it 3.5.3 The calculation of 180 days 3.5.4 Variation of the 180-day limit 3.6 The ‘ripeness’ of the action 3.7 Mootness 4 The exhausting of internal remedies 4.1 Introduction 4.2 Exhausting internal remedies under the PAJA 4.2.1 Interpretation of the phrase ‘any other law’ 4.2.2 Judicial decisions 4.2.3 The factors considered in determining whether judicial review should be excluded where internal remedies have not been exhausted 4.2.4 The exemption from the obligation to exhaust internal remedies 4.3 The constitutionality of section 7(2) of the PAJA 4.4 The court’s power to review administrative action despite the failure to exhaust internal remedies 4.5 Procedural powers and duties of tribunals 4.5.1 Oral or written representations 4.5.2 Legal representation 4.5.3 Cross-examination 4.5.4 Evidence 4.5.5 Public hearings 4.5.6 Majority decision 4.5.7 Substituting a decision 4.5.8 Precedent system 4.5.9 Reasons 4.5.10 Contempt of tribunal 4.5.11 The legal force of decisions by tribunals 5 Legal standing (locus standi in iudicio) to institute an action 5.1 Standing under the pre-democratic system of administrative law 5.2 Standing at common law 5.3 Standing under section 38 of the Constitution 5.4 The interpretation of section 38 5.5 Section 38(a): anyone acting in their own interest 5.5.1 The interest required to establish standing 5.5.2 Should the interest be a direct interest? 5.5.3 Should the interest be a personal one? 5.6 Section 38(b): anyone acting on behalf of another person who cannot act in their own name (on their own behalf) 5.7 Section 38(c): anyone acting as a member of, or in the interest of, a group or class of persons 5.7.1 The Report on the Recognition of Class Actions and Public Interest Actions in South African Law 5.8 Section 38(d): anyone acting in the public interest 5.8.1 Timing in the assessment of public-interest litigation 5.8.2 Evidence required in public-interest litigation 5.9 Section 38(e): associations acting on behalf of their members 6 The application procedure for a remedy or order 6.1 Urgent applications 6.1.1 The application of rule 6(12)(a) 6.2 Ex parte applications 6.3 The appropriate rule in review applications – rule 6 or rule 53? 7 The burden of proof (onus) 7.1 Introduction 7.2 Sufficiency of proof 7.3 Onus of proof under the PAJA 7.3.1 Exceptions to the general rule 8 Oral evidence PART 5 Remedies available to an aggrieved person and orders of court 25 Remedies and orders 1 Introduction 2 Remedies in proceedings for judicial review 3 The general power to grant an order that is ‘just’ and ‘equitable’ 3.1 The meaning of the term ‘just and equitable’ 3.2 ‘Reading in’ as appropriate relief 4 Specific orders in terms of section 8(1) of the PAJA 4.1 An order directing the administrator to give reasons 4.2 An order directing the administrator to act in the manner the court or tribunal requires (section 8(1)(a)(ii)) 4.2.1 Where the end result is a foregone conclusion and it would serve no purpose to refer the matter back to the original decision-maker 4.2.2 Where further delay would cause undue prejudice to the applicant 4.2.3 Where the original decision-maker exhibits bias or incompetence to such a degree that it would be unfair to expect the applicant to submit to its jurisdiction again 4.2.4 Where the court is in as good a position as the original decision-maker to make the decision 4.2.5 The willingness of the administrator to re-apply its mind to the issues at stake 4.2.6 Change in circumstances – as they exist now as opposed to when the matter was decided by the administrator 4.3 The granting of an order that is just and equitable 4.4 An order setting the administrative action aside 4.4.1 Setting aside the administrative action and remitting the matter for reconsideration, with or without directions 4.4.2 Setting aside the matter and in exceptional cases substituting or varying the administrative action, or correcting a defect 4.4.3 Setting aside the administrative action and in exceptional cases ordering the payment of compensation 4.5 An order declaring the rights of the parties 4.6 An ord