PART ONE: BACKGROUND TO PAJA AUDIT PROJECT

1. THE PLACE OF THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000 (“PAJA”) IN ADMINISTRATIVE LAW

1.1. Administrative law prior to the PAJA

1.1.1. Prior to 1994, administrative law was founded in the common law, grounded in the courts’ inherent power to review delegated legislation and administrative action. This inherent power resulted in the development of a body of law dealing with irregularities in the performance by a public body of a duty imposed by statute, called administrative law.

1.1.2. The doctrine of ultra vires became synonymous with administrative law, and gave courts the basis to control abuses of powers granted to public officials in legislation. In later years this doctrine would develop further, providing additional grounds upon which to challenge public power.

1.1.3. The notion of procedurally fair administrative action developed from judicially-developed procedural safeguards, referred to at common law as the principles of natural justice. The principles of natural justice applied to procedures used in performing administrative acts and were crystallised into two maxims: audi alteram partem (persons affected by a decision should be given a fair hearing by the decision-maker prior to the making of the decision), and nemo iudex in sua causa (the decision-making must be and must be reasonably perceived to be, impartial). At common law, the question whether a hearing was required before a decision, was answered by considering whether the decision would have individual or general impact. If a decision was likely to have a particular impact on individuals, a hearing was required, whereas if a decision would impact generally upon a community or class of individuals, procedural fairness did not require a hearing. Instead, a notice and comment procedure was regarded as sufficient.

1.1.4. The separation of powers doctrine in its pre-1994 form, restrained judicial review of administrative action. Although at common law courts could review the lawfulness of administrative actions, the Legislature found creative ways to circumvent judicial review by inserting in its legislation ouster clauses, preventing the courts from reviewing certain administrative action altogether. This was particularly the case in respect of state of emergency regulations in the 1980s.[2]

1.1.5. Constitutional protection of administrative justice rights commenced with the Interim Constitution[3] and continued under section 33 of the Final Constitution,[4] which states as its main principle that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Section 33 also establishes the right to reasons for administrative action. The entrenchment of the right to just administrative action has effected the constitutionalisation of administrative law.[5]

1.2. Administrative law since the PAJA

1.2.1. Section 33(3) of the Final Constitution contains a directive for national legislation to be enacted in order to give effect to the administrative justice right. This took shape through the enactment of the PAJA, the bulk of which came into effect on 30 November 2000, and the rest (sections 4 and 10) on 31 July 2002.

1.2.2. The PAJA is designed to be read with or to supplement other legislation permitting or requiring administrative action to be taken. Where the other legislation does not make sufficient provision for the protection of a person’s right to administrative justice, the procedures set out in the PAJA can be used to supplement that legislation. See further in this regard paragraph 1.3 below.

1.2.3. Section 1 of the PAJA defines administrative action. Once it has been established that a particular act constitutes administrative action, as defined, the PAJA imposes on administrators a number of duties in the preparation, formulation and implementation of their decisions.

1.2.4. Sections 3 and 4 of the PAJA identify a number of procedural fairness safeguards that need to be complied with by administrators engaging in administrative action. Sections 3 and 4 not only codify but also develop the principles of natural justice, as they existed at common law. The issues relating to when to apply the audi alteram rule, and what it requires in a given case, that existed at common law, are now partially dispelled in that under the PAJA, provided that an act constitutes administrative action as defined in the PAJA, the provisions of section 3 or 4 of the PAJA automatically apply to such conduct (subject to reasonable and justifiable departures). Constitutional jurisprudence has confirmed that while the common law informs the provisions of the PAJA and the Constitution, the basis of administrative law is now the Constitution, and the extent to which the common law remains relevant is to be determined on a case-by-case basis.[6]

1.2.5. The PAJA Audit Project was concerned with gauging the extent to which the procedural fairness requirements laid down in sections 3 and 4 of the PAJA are either present or absent in other legislation permitting administrative action. It also looked at the right to reasons, and the extent to which that right is encapsulated in other legislation. The PAJA Audit Project does not deal with other aspects of PAJA administrative justice, such as reasonableness and lawfulness.

1.2.6. Section 6 of the PAJA lists the grounds of judicial review of administrative action, and is largely a codification of the grounds that existed at common law. The PAJA Audit Project, being concerned with the procedural fairness aspects of the PAJA, did not involve an analysis of section 6.

1.3. The relationship between the PAJA and other statutes

1.3.1. The most recent statement of the relationship between the PAJA and other statutes can be found in the case of Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC), in which the Constitutional Court held that,

“The AJA… governs the exercise of administrative action in general. All decision-makers who are entrusted with the authority to make administrative decisions by any statute are therefore required to do so in a manner that is consistent with the AJA. The effect of this is that statutes that authorize administrative action must now be read together with PAJA unless, upon a proper construction, the provisions of the statutes in question are inconsistent with the AJA.”

1.3.2. In our view, the effect of this statement by the Constitutional Court (read in the context of that judgment) is that when determining the constitutional validity of a statutory administrative action, the statutory interpretation must follow a three-step process, as set out below:

1.3.2.1. the first step is to properly interpret an empowering statute without considering the PAJA. So, “upon a proper construction”, an empowering statute will be either inconsistent or not inconsistent with the PAJA;

1.3.2.2. the second step is, depending on the results of the first step, to read the PAJA together with the empowering statute or not;

(a) if a statute is inconsistent with the PAJA, then the statute would be susceptible to constitutional challenge in terms of section 33 of the Constitution. Further, there is the possibility of an unlawfulness challenge in terms of the PAJA, to administrative action authorised by such a statutory provision. As a statute implementing section 33 of the Constitution, the PAJA review function will apply even where an empowering statute directly conflicts with the PAJA. The jurisdiction of the reviewing court to set aside administrative action derives from the PAJA and not from the empowering statute;

(b) on the other hand, if the empowering statute is not inconsistent with the PAJA, then the PAJA must be read together with the empowering statute. For example, where a statute is silent as to whether prior notice should be given, it is not inconsistent with the PAJA but must be read together with the PAJA so that the administrator is empowered to give notice. In almost all cases, this situation of consistency with the PAJA would mean that the statute is not susceptible to constitutional challenge in terms of section 33 of the Constitution;

1.3.2.3. the third step is to evaluate the constitutionality of the challenged provision of the empowering statute, both properly construed and, to the extent possible, read with the PAJA. This is a matter of measuring the provisions of the statute against the content required by section 33 of the Constitution.

1.3.3. The purpose of the PAJA Audit Project was not to assess the constitutional validity of every statutory administrative action. Rather, the purpose was to evaluate the extent to which each statutory administrative action meets the procedural fairness requirements of the PAJA without supplementation. To the extent that a statutory administrative action does not meet those requirements, we assessed whether it is (a) supplementable by the PAJA, or (b) fair but different as contemplated by the PAJA, or (c) different and unfair (in the sense of being inconsistent with the PAJA). The appropriateness of these objectives is, we believe, confirmed by the decision in Zondi as described above.

1.3.4. It is important to note that although the PAJA supplements the provisions of other statutes, it does not override other statutes.

1.4. The importance of PAJA supplementation

1.4.1. The Zondi decision has confirmed the critical importance of PAJA supplementation of other legislation, in ensuring legal compliance by organs of state and other persons undertaking administrative action. An administrator faced with the task of taking administrative action is responsible for ensuring that such administrative action is taken lawfully, reasonably and procedurally fairly. Based on Zondi, the administrator cannot rely solely on the legislation or other “empowering provision” that permits or requires the administrative action, but must read that legislation or empowering provision with the requirements of the PAJA in order to ascertain what further measures, if any, must be taken to ensure compliance.

1.4.2. The task of reading an empowering provision with the PAJA is not a simple, mechanical exercise. As stated in section 3(2) of the PAJA, a fair administrative procedure depends on the circumstances of each case, and administrators need to be equipped with the tools (whether they be training, expertise, experience, guidelines, manuals, practice notes etc) to work out whether the empowering provision is deficient in terms of procedural fairness, and if so whether all or some of the PAJA procedural fairness requirements apply as supplementary administrative law, when and if the PAJA regulations apply, and when it is justifiable to depart from one or more of the PAJA requirements in any particular case.

1.4.3. The PAJA Desk Audit is not a complete solution of where the PAJA must be used to supplement other legislation. It can serve as a useful starting point or tool, however, and can be adapted and refined to further assist departmental legal advisors and other administrators in the task of identifying where and how the PAJA applies. As stated above, the PAJA Desk Audit also forms part of a bigger project and should be seen in that context. In the following chapter, we provide an overview of the entire PAJA Audit Project.

2. OVERVIEW OF THE PAJA AUDIT PROJECT

2.1. Background and objectives

2.1.1. The PAJA Audit Project was conducted during the period November 2003 to December 2004, and was divided into five phases as follows:

2.1.1.1. Phase One: PAJA Desk Audit;

2.1.1.2. Phase Two: Preparation for interviews;

2.1.1.3. Phase Three: Interviews;

2.1.1.4. Phase Four: Analysis; and

2.1.1.5. Phase Five: Recommendations.

2.1.2. Although the initial focus of the PAJA Audit Project shifted over time, essentiality it had three core objectives. Firstly, the Project involved research to establish the extent to which administrative procedures applied by organs of state in the three spheres of government (national, provincial and local) are procedurally fair as required by the Constitution. This objective would be achieved by a double-pronged research approach, involving:

2.1.2.1. a “desk audit” of administrative procedures established under primary and secondary legislation (at national and provincial level, and a sample at local government level in respect of a Category A (metropolitan) municipality), in order to determine the extent to which such procedures are fair as contemplated by sections 3 and 4 of the PAJA; and

2.1.2.2. on-the-ground research, by means of interviews with government department and selected public bodies, in order to establish whether and to what extent they either applied the PAJA directly or had developed internal guidelines, directives and rules which had the effect of supplementing their own legislation with the procedural fairness requirements under the PAJA.

2.1.3. Secondly, the Project involved research of internal and external review and appeal procedures, for the purpose of developing a uniform approach. Like the first objective, this objective would be achieved through both a “desk audit” of legislative review and appeal procedures, and a series of interviews with departmental, municipal and possibly other relevant officials in order to establish the extent to which review and appeal procedures other than those prescribed in legislative instruments, are in fact used by government bodies.

2.1.4. The findings of the two research components of the project would be analysed in detail once all the data has been gathered and collated, and would form the basis of the third and final part of the Project, namely the formulation of recommendations relating to the following two matters:

2.1.4.1. measures to amend or supplement legislative provisions ensuring that administrative procedures comply with the requirements of procedurally fair administrative action; and

2.1.4.2. the streamlining of internal and external review and appeal procedures, or the adoption of a uniform review and appeal procedure.

2.2. Preliminary issues

2.2.1. Statutory interpretation

A project on the scale of the PAJA Audit Project required the resources of a large number of legal professionals working more or less separately but doing the same or similar tasks. Therefore, we had to – at the outset – develop interpretive rules that would be applied by everyone participating in Phase One, the PAJA Desk Audit. It was agreed with GTZ from the outset of the Project, that we would adopt a broad/generous approach to identifying “administrative action”, as defined by the PAJA, in legislation. However, the application of a more inclusive interpretation of “administrative action” means that the findings of the Desk Audit must be seen – by administrators that use the Desk Audit for their own purposes – in that context, and should be adapted for practical uses. For example, by adopting a generous interpretation of administrative action, the impression may have been created that every administrative decision requires the application of the full gamut of PAJA procedural fairness measures. A stricter interpretation, for example including a materiality requirement, would have made it clear that, in certain contexts, some of the PAJA requirements would be unnecessary. Another example of the broad interpretation is the inclusion of regulation-making as a category of administrative action, where the courts have to date left open the question of whether regulation-making is administrative action.

2.2.2. Comprehensiveness vs consistency[7]

The goals of comprehensiveness and consistency competed in this Project, because the enormous scale of the exercise meant that we could not develop new rules of interpretation or analysis mid-way through the PAJA Desk Audit, without going back and re-doing the whole exercise – impossible in the circumstances. The need to develop such rules up-front and not to change them thus led to some compromises. For example, the list of categories of administrative action that we put together at the commencement of the Project is not exhaustive of all possible types of administrative conduct. Ultimately, we were required to draw a line, in the greater interest of consistency in approach over comprehensiveness.

2.2.3. Professional judgment[8]

Interpretational differences and differences in analysis of statutory provisions played a hand in the across-the-board consistency of our approach, indicating, if anything, the highly subjective nature of this exercise. In addition to little guidance from case law regarding the scope and ambit of procedural fairness under the PAJA, it was difficult to dictate to individual professionals the exact manner of interpretation to apply. Inconsistencies were reduced, to an extent, by checking and re-auditing but it was not possible for one person to re-audit every provision. Therefore, there will inevitably be differences of interpretation in regard to the PAJA Desk Audit analysis of statutory administrative actions.

Further, different analytical methods were employed by the professionals auditing legislation. Some adopted a more “holistic” approach, seeing a procedure spanning several statutory provisions as part of the same administrative action, whereas others chose to separate out a procedure into a number of administrative actions. These differences in approach impacted on calculations regarding the prevalence or otherwise of the categories of administrative action.

2.2.4. Justifiable departures from PAJA requirements not identified

As mentioned above, because a generous approach to identifying administrative actions in legislation was adopted, our desk audit creates the impression that every administrative decision identified in the audit requires the application of the full gamut of PAJA procedural fairness measures. The PAJA, however, permits the circumstances of each case to determine, to an extent, the applicability of the particular procedural fairness measures described therein. Applicability is determined on a case-by-case basis by the administrator taking the administrative action. The fact that in some cases a departure from certain procedural fairness requirements would be justified, is not reflected in the PAJA Desk Audit.

2.2.5. No link-up of primary statute provisions with secondary legislation

Due to the substantial number of statutes that had to be audited, a decision was taken during the course of the Project to limit the audit of secondary legislation. Furthermore, in our audit of the regulations, there is no express cross-reference made between the audit of particular primary legislation and the regulations giving effect to such primary legislation. The result of this is that we were not able to determine the extent to which a particular regulation supplements primary legislation by adding elements of procedural fairness not explicitly required by the primary statute.

2.2.6. Hybrid section 3 and 4 administrative actions

Hybrid administrative actions are those that affect both individuals (section 3) and the public (section 4), and accordingly may trigger the application of elements of procedural fairness under both sections 3 and 4 of the PAJA. The PAJA Desk Audit records such provisions as being either administrative action affecting individuals, or administrative action affecting the public, thereby precluding an audit of the procedural fairness aspects pertaining to the other type of administrative action (section 3 or section 4, as the case may be). Consequently, our data regarding compliance with the specific measures required by sections 3 and 4 of the PAJA is partially complete in respect of hybrid provisions, which has some effect on our findings.

2.3. Principal findings

2.3.1. Phase One: PAJA Desk Audit

We have labelled a statutory administrative action as “supplementable” if it does not contain all the essential elements of procedural fairness required by either section 3 or section 4 of the PAJA, but is nevertheless supplementable by the PAJA in the sense of not conflicting with the PAJA. A supplementable provision is distinguishable from a statutory administrative action that complies with all the essential elements of procedural fairness as set out in section 3 or section 4 of the PAJA and therefore does not need to be supplemented by the PAJA (we have called those “compliant” provisions).

Our major finding from Phase One is that the vast majority of statutory administrative actions (approximately 97% in total) are supplementable by the PAJA, in the sense described above. Few provisions are fully compliant with the procedural fairness requirements of the PAJA, or are directly inconsistent with the PAJA procedural fairness measures (ie are “different”). The finding of overwhelming supplementability surprised the Consortium as well as the Project Sponsors, who had expected a larger proportion of “different” provisions (hence the original orientation of the Project towards law reform, as described in paragraph 2.1.4.1 above). Because we found such a high proportion of supplementable provisions, we expected after Phase One that administrators would be able to use – and would be using – the PAJA as intended by the legislature, as supplementary legislation, and thus that major law reform would be unnecessary.

We found surprisingly few statutory administrative actions that are either “fair but different” in the PAJA sense (ie inconsistent with PAJA requirements but nonetheless fair for some reason, for example if applying every element of PAJA procedural fairness would clearly defeat the object of the provision and the alternative procedure does not violate rights in a material way), or “different and unfair” in the sense of being inconsistent with the PAJA but unfair in that the limitation on the right to procedural fairness cannot be justified in the constitutional sense. We found more “fair but different” provisions than “different and unfair” provisions, and in both cases far fewer than was anticipated at the outset.

2.3.2. Phases Two and Three: Interviews

The interview questionnaire was divided into three parts: (a) the extent of PAJA awareness and training in the department being interviewed, (b) whether or not the PAJA is applied directly or indirectly by administrators to supplement other legislation; and (c) the process of internal and external reviews and appeals in the interview department. A summary of our findings in respect of each part follows below.

PAJA awareness and training: The extent of knowledge and activity pertaining to the PAJA varied greatly from one department and institution to the next. Most if not all interviewees claimed to be familiar with the provisions of the PAJA, however it appears that no consistent efforts have been made either by legal advisers or other officials within departments, to spread knowledge of the PAJA amongst their colleagues by way of formal training or the development of internal guidelines. Some departments had engaged consultants to conduct training and awareness of the PAJA amongst its administrators. Most training seemed to be a once-off event, in some departments conducted when the PAJA was first enacted, but not since then. A few departments and institutions had made an effort to examine the impact of the PAJA on their specific operations specifically – such as the Gauteng Education Department, the Competition Commission and SARS. Many of the PAJA training efforts were combined with training on other constitutionally-mandated legislation, in particular the Promotion of Access to Information Act.

The nature and scope of training materials differed as between departments. At early PAJA training workshops, the materials distributed (and remembered by interviewees) were generally those commissioned by the Justice Department and/or GTZ, such as the Promotion of Administrative Justice Act Benchbook[9] and the Administrator’s Guide.

Direct and indirect use of the PAJA as supplementary procedural fairness legislation: Direct use of the PAJA means to read the PAJA directly with other legislation in order to supplement the other legislation as regards procedural fairness. Indirect use of the PAJA means to use guidelines, internal directives and other materials developed by a department in order to supplement its legislation with the PAJA procedural fairness requirements.

In general, the interview process revealed an unexpectedly low level of implementation of the PAJA – whether directly or indirectly. A mere handful of departments and institutions that were interviewed have taken active steps to integrate the procedural fairness requirements of the PAJA into their day-to-day operations. It was found that to the extent that departmental manuals or directives explaining step-by-step how to apply a particular procedure have been developed, officials believe that such directives are based on the pre-constitutional principles of natural justice rather than on the requirements of the PAJA. On the whole, therefore, departments directly apply the procedures prescribed by their empowering legislation (including regulations passed under such legislation) and, in general, they assume or believe that such legislation (including regulations) adequately provides for fair procedure. The idea of supplementation by the PAJA as general administrative law has not found purchase in many of the departments and institutions interviewed.

Internal and external reviews and appeals: The purpose of this part of the interview was to assess whether interviewees felt that the current internal and external appeal and/or review system is effective and whether a uniform system of appeals and reviews could and should be introduced. In most cases, we found that the traditional legal distinction between appeals and reviews is not applied, and that in both cases a more or less full reconsideration of the decision is undertaken, either as a result of new information furnished by the affected party or some other factor that may alter the initial decision taken.

Our impression was that external appeals and reviews are less flexible as regards a department’s ability to determine, amend or short-cut the applicable procedure, than is the case with internal appeals and reviews. In general, it seems that the procedure applied in the case of external appeals and reviews is determined by the empowering legislation, and is more formal than internal ones, and more often involves an oral hearing and legal representation.

We found little support for a government-wide review/appeal tribunal, with slightly more support for a sectoral appeals body in the style of the Competition Tribunal. However, interviewees generally supported the idea of PAJA-compliant model procedures or guidelines for reviews and appeals that could be adopted or adapted by each department to suit its needs and obligations.

2.3.3. Phase Four: Analysis

We found that approximately 80% of all administrative actions affect individuals (section 3 of the PAJA), and the remaining 20% affect the public (section 4). Certain legislative sectors such as Criminal, and Family and Persons, show very few section 4 administrative actions, suggesting that the legislation in these sectors primarily affects the rights and legitimate expectations of individuals. In other sectors, such as Finance, and Provincial and Local Government, there is a roughly even split between section 3 and section 4 administrative actions.

While most categories of administrative action are more applicable to individuals, some categories are inherently more likely to affect the public or part of the public. Such is the case with regulation-making provisions, in respect of which 93% of all administrative actions are categorised as falling into section 4 of the PAJA. Conversely, administrative decisions categorised as Accreditations, Arrests, Demolition, Designation, Dispute Resolution, External Appeal, Inspection, Search, Security, Subpoena, Test and Warrant categories primarily affect individuals. Licensing is an example of a category that contains a number of hybrid administrative actions (decisions that affect both an individual and the public).

We looked at various aspects of the PAJA Desk Audit data from a sectoral perspective, including the incidence (or absence) of each category of administrative action in each sector and the extent of compliance, by each category of administrative action appearing in that sector, with the elements of PAJA procedural fairness.

There were varying frequencies of administrative action within the 34 LexisNexis legislative sectors. The sector containing the greatest number of administrative actions was Professions. Other sectors containing large numbers of administrative actions were Labour, Security and Prisons, and Revenue. Some sectors contained very few administrative actions such as Housing, Liquor, Contract and Delict, and Family and Persons.

By far the greatest number of administrative actions were categorised as Determinations, which accounted for just under a quarter of all administrative actions identified in the PAJA Desk Audit. The Determinations category acted as a residual or “catch-all” category of administrative action for those that do not fit comfortably into the other categories. Some categories had low incidence in the statute book, such as Regulatory Negotiation, Demolition and Inquest. These categories generally relate to a specialised process specific to a sector.

2.3.4. Phase Five: Recommendations

As stated above, the initial intention of the Project Sponsors was that the focus of our recommendations would be law reform. This intention was based on an assumption that the statute book would contain a substantial number of statutory administrative actions that are, in the PAJA sense, different and unfair (ie incompatible with the procedural fairness requirements of the PAJA).

After realising, on completion of Phase One of the PAJA Audit Project, that the vast majority of statutory administrative actions are supplementable with the PAJA rather than inconsistent therewith, we reconsidered the initial focus and anticipated that the recommendations would, rather than being oriented principally towards law reform, instead concentrate on non-legislative measures to improve PAJA compliance. However, on completion of Phase Three (interviews) we realised that the notion of PAJA supplementability is not being applied or implemented generally within the government. Therefore, in discussions with the Project Sponsors the main focus of our recommendations was re-confirmed as being on law reform, however we supplemented our law reform recommendations with non-legislative measures that can be implemented either as interim measures or as additional measures to improve PAJA compliance.

The detailed recommendations made by us are available upon request. In summary, the recommendations fall into the following categories:

2.3.4.1. recommendations relating to the national and provincial primary legislation statute books;

2.3.4.2. recommendations relating to secondary legislation;

2.3.4.3. law reform recommendations, including a step-by-step law reform methodology for improving PAJA compliance by each department;

2.3.4.4. administrative / structural reforms that could be made per department;

2.3.4.5. other PAJA implementation measures, such as training, guidelines and manuals for legal advisors and administrators, practice notes, updates of judgments, circulation of legal opinions and public awareness campaigns;

2.3.4.6. internal and external appeals and reviews, including model procedures for internal and external appeals/reviews;

2.3.4.7. co-ordination between national and provincial efforts at achieving PAJA compliance; and

2.3.4.8. recommendations regarding further use of the PAJA Desk Audit, both within government departments and by a wider audience.

3. IDENTIFYING ADMINISTRATIVE ACTION

3.1. “Administrative action” as defined in the PAJA

3.1.1. The PAJA definition of “administrative action” is multi-faceted and complex. Reasonable lawyers will differ on questions of what is and what is not administrative action. While there is some jurisprudence on the nature and scope of “administrative action”, it is not comprehensive or even extensive. Each department will have to defend its interpretation of the term, and should formulate its own views on the scope of the definition. The PAJA Desk Audit represents the Consortium’s views, as moderated by those of the Project Sponsors, on the proper interpretation of administrative action. However, those views should not be adopted unquestioningly.

3.1.2. “Administrative action” is defined in section 1 of the PAJA. The definition is multi-pronged, and all its elements must be present in order for a particular act or conduct to be “administrative action”. Broadly-speaking, administrative action can be taken by organs of state and/or by natural or juristic persons other than organs of state when exercising a public power or performing a public function, and comprises four main elements:

3.1.2.1. a decision or proposed decision;

3.1.2.2. of an administrative nature;

3.1.2.3. which adversely affects rights; and

3.1.2.4. which has a direct, external legal effect.

3.1.3. Sections 3 and 4 of the PAJA add a requirement of materiality, by providing that the procedural fairness measures set out therein apply in the event of administrative action “materially and adversely affecting rights or legitimate expectations” (section 3) or “materially or adversely affecting rights of the public” (section 4). In conducting the PAJA Desk Audit, we adopted a broad interpretation of “administrative action” and did not apply a “materiality” criterion to the evaluation of administrative action. Administrators using the PAJA Desk Audit should bear this in mind.

3.1.4. Section 1 of the PAJA excludes certain types of decisions from the definition of administrative action. So administrative action is not, inter alia –

3.1.4.1. legislative action (such as the determination of a budget by a municipal council);

3.1.4.2. executive action (such as the decision to appoint a commission of inquiry); or

3.1.4.3. judicial action (such as a sentencing decision).

3.1.5. Further, it is important to note that primary legislation is not the only source of administrative actions taken or administered within a department. The PAJA definition of “empowering provision” explicitly includes, apart from laws, “a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken”. So any attempt by a department to comprehensively “audit” the administrative actions taken by it would have to take into account sources of administrative action other than primary and secondary legislation. An example of a non-statutory source of administrative power is section 51(1)(a)(iii) of the Public Finance Management Act 1 of 1999, which requires that public entities have and maintain a procurement policy. This provision, although it is the source of power to issue tenders and make tender decisions (which decisions constitute administrative action under the PAJA), is not formulated as an administrative action, in the sense understood for purposes of the PAJA Desk Audit. In this case the departmental procurement policy is the “empowering provision” that authorises administrative action to be taken.

3.1.6. Since the existence of administrative action is the trigger for compliance with section 33 of the Constitution and for PAJA compliance, it is imperative in order to achieve such compliance, for every organ of state (and every natural or juristic person exercising public power or performing public functions in terms of an empowering provision) to have clear and comprehensive knowledge of the full extent of administrative action undertaken by it. Such knowledge would include a clear understanding of at least the following:

3.1.6.1. what is the source of each administrative action (ie the empowering provision);

3.1.6.2. what procedural fairness measures are required in order that the administrative action is taken in a constitutionally valid manner (this requires an investigation as to whether it would be justifiable to depart from any of the mandatory PAJA measures, or whether there are measures in place that are fair but different from the PAJA measures);

3.1.6.3. which of the required procedural fairness measures are provided for in the primary empowering provision;

3.1.6.4. which of the supplementary measures that are required in order to achieve constitutional compliance, are supplied by secondary sources (such as regulations);

3.1.6.5. finally, the extent to which the PAJA procedural fairness measures must be used in order to supplement the empowering provision and secondary sources.

3.2. “Administrative action” in the PAJA Desk Audit

3.2.1. For purposes of the PAJA Desk Audit, we tried to identify all administrative actions required or permitted by primary legislation. As mentioned above, primary legislation is not the only type of “empowering provision” in terms of which administrative action may be taken. The PAJA definition of empowering provision explicitly includes, apart from laws, “a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken”. “Laws” would include primary and secondary legislation (such as regulations, notices and other legal sources).

3.2.2. The PAJA Desk Audit is confined to an audit of primary legislation (and, separately audited, selected secondary legislation). Therefore, even a minutely detailed line-by-line re-audit of primary legislation, in order to verify the accuracy of the PAJA Desk Audit data, will not result in a comprehensive database of all administrative actions that may be taken by administrators within a particular department. The creation of a comprehensive database of all administrative actions that could be taken by a department will involve an audit not only of primary legislation administered by the department, but also secondary legislation and other “empowering provisions”, such as policies prepared in terms of legislation, for example a procurement policy. It is preferable for the person/s conducting the administrative action identification exercise to have practical knowledge of the legislation in operation.

3.2.3. The PAJA Desk Audit can be used as a tool in the process of creating a database of administrative action taken, and assessing it against the PAJA. The PAJA Desk Audit was conducted, largely, without situational knowledge of how the provisions are administered in practice. Departmental officials conducting their own audit of departmental administrative actions should interrogate the PAJA Desk Audit findings in order to verify its accuracy and completeness, and to update it. A review of the PAJA Desk Audit, in order to use it as a sound basis for a database of departmental administrative action, could entail the following initial steps:

3.2.3.1. in respect of national legislation administered partly by national government and partly by provincial governments, separating out the provisions administered by provincial departments and national departments respectively, and working out, in consultation with officials from the other sphere of government, how to deal with the audit thereof. For example, the South African Schools Act 84 of 1996 contains certain provisions that are administered at provincial level and others that the national department administers;

3.2.3.2. identifying statutory administrative action provisions that have mistakenly not been captured in the PAJA Desk Audit;

3.2.3.3. identifying administrative action provisions in statutes that have come into effect since the PAJA Desk Audit was performed (i.e. all legislation that came into effect after 31 December 2003); and

3.2.3.4. correcting the PAJA Desk Audit to the extent that any provisions have, in your department’s view, been incorrectly identified as administrative action, or in respect of which there are other errors or inconsistencies, for example, the combination of provisions that must be read together to constitute an administrative action procedure has been wrongly articulated.

3.2.4. For purposes of the PAJA Desk Audit, we developed a list of 56 categories of administrative action, based primarily on the nature/purpose or effect of a particular administrative act. The categories of administrative action that we identified do not, together, constitute a comprehensive list of all possible administrative actions taken by administrators, however the categorisation seemed to us to be useful in order to try to ascertain trends in legislative drafting and procedural fairness in statutory provisions falling into the same categories. The list of categories can be refined, revised and adapted to suit the needs and practices of each department or organ of state. We note that there may be some overlap between categories, or individual professionals’ understanding of the scope of the categories. During Phases Four and Five of the PAJA Audit Project, we came to the view that certain categories of administrative action could be grouped together as having similar characteristics or as forming part of a wider process, however we have not indicated such possible groupings in the PAJA Desk Audit itself.

3.2.5. Below we set out in table format, a short extract from the PAJA Desk Audit, in order to demonstrate the way in which statutory administrative actions identified by us were captured in the PAJA Desk Audit. Note that this extract does not show every column in the Excel spreadsheet, but only the first eleven. You will see from this extract that information about each statutory administrative action is provided on the following basis: (a) a number for the statute, given to it for purposes only of the PAJA Desk Audit; (b) its source (ie national legislation, ordinance, provincial legislation or national legislation assigned to a province); (c) the sector in which that statute falls (as per the Butterworths LexisNexis database[10]); (d) the department that administers it; (e) information about the statute in which the administrative action appears, including the name of the statute, the Act number and the year; (f) the relevant section number; (g) the section title; and (f) the category in which the administrative action falls. More details on each of the columns described above will be provided in the following chapters.

A	B	C	D	E	F	G	H	I	J	K
No.	Source	Sector	Department	Name of Act	Act No.	Year	Admin Action	Section no.	Title	Category
1	N	CML	AG	Performing Animals Protection Act	24	1935	Y	2	Magistrate may issue licence for exhibiting and training of perfoming animals and for use of dogs for safeguarding	Lic
1	N	CML	AG	Performing Animals Protection Act	24	1935	Y	3(2) rw 3(1)	Certificate in respect of licensed animals	Cert
1	N	CML	AG	Performing Animals Protection Act	24	1935	Y	3(4)	Certificate in respect of licensed animals	Cert

KEY TO EXTRACT FROM PAJA DESK AUDIT:

N (column B) = National legislation

CML (column C) = Criminal sector legislation (as per Butterworths LexisNexis)

AG (column D) = Department of Land Affairs and Agriculture

(key continued on next page…)

rw (column I) = read with

Lic (column K) = Licence

Cert (column K) = Certification

PART TWO: COMPLETING THE PAJA DESK AUDIT

4. CAPTURING PRELIMINARY INFORMATION

4.1. Introduction

As mentioned above, the PAJA Desk Audit is in Excel format. The CD that accompanies this User Manual contains four Excel workbooks, arranged as follows:

v one Excel workbook for the audit of all national primary legislation operational as at 31 December 2003 (this Excel workbook contains a separate worksheet for each national department, each such worksheet bearing the full name of the relevant department and its acronym);

v one Excel workbook for all provincial primary legislation operational as at 31 December 2003 (this Excel workbook contains a separate worksheet for each province, each such worksheet bearing the full name of the province);

v one Excel workbook for selected secondary legislation promulgated before 31 December 2003 in terms of national legislation (this Excel workbook contains a separate worksheet for each national department, each such worksheet bearing the full name of the relevant department and its acronym); and

v one Excel workbook for the (draft) City of Johannesburg by-laws, as at 31 December 2003.

There are twenty-seven completed columns on each Excel worksheet in each Excel workbook. For purposes of this User Manual we have divided each worksheet into three parts, as follows:

v the first eleven columns, dealing with what we have called “preliminary information”;

v the next fourteen columns, dealing with PAJA procedural fairness compliance; and

v the last two columns, which provide for a status assessment of each statutory administrative action, and comments.

This chapter 4 serves to familiarise administrators with the methodology used to complete the preliminary information (first eleven columns of each Excel worksheet). The purpose of the explanation is twofold: (a) so that administrators understand exactly what is intended by the information contained in each column, and (b) so that administrators can create their own PAJA Desk Audit, or adapt, update and refine the existing PAJA Desk Audit.

Below we set out in table format an extract from the PAJA Desk Audit (being an extract from the audit of national legislation administered by the Department of Health), showing the first eleven columns and the kind of information contained therein. Thereafter, we explain the intention behind, and the methodology for compilation of, the data contained in each such column. We also explain all abbreviations and codes used by us in completing the PAJA Desk Audit.

Please note that the extract below and the explanation that follows, relates to the Excel workbooks for (a) national legislation, and (b) provincial legislation. The Excel workbooks for City of Jhb by-laws and for selected secondary legislation are organised slightly differently, but the arrangement of columns in those Excel workbooks should be self-explanatory if one has grasped the way in which the national and provincial legislation workbooks are arranged.

A	B	C	D	E	F	G	H	I	J	K
No.	Source	Sector	Department	Name of Act	Act No.	Year	Admin Action	Section no.	Title	Category


1	N	HEA	HEA	Public Health Act	36	1919	Y	48(1)	Refunds to local authorities in respect of isolation hospitals and formidable epidemic diseases	Regs
1	N	HEA	HEA	Public Health Act	36	1919	Y	50(1)	Financial provisions	Regs
1	N	HEA	HEA	Public Health Act	36	1919	Y	66	Minister may make contributions and provide facilities for the diagnosis and treatment of venereal diseases	Regs
2	N	HEA	HEA	Medicines and Related Substances Act	101	1965	Y	1(1)	Definitions	Decl
2	N	HEA	HEA	Medicines and Related Substances Act	101	1965	Y	3 rw 4(3)	Constitution of council; Period of office and remuneration of members of the council	App
2	N	HEA	HEA	Medicines and Related Substances Act	101	1965	Y	4(4)	Period of office and remuneration of members of the council	Rem

4.2. Column A: Number (No.)

Each statute audited by us has been allocated a number, which works in association with the department responsible for that statute and is reflected in the first column of the Excel worksheet (Column A). The numbers work differently at national and provincial level, due to the different sources of legislation in those spheres of government. We have also distinguished between primary legislation and secondary legislation.

If the audit of an Act is spread over several rows, each row that pertains to the same Act has been given the same number.

The purpose of the numbering system is really so that each statute has a unique reference number, when combined with the name of the department that administers that statute (such as 5 JUS for the Formalities in Respect of Leases of Land Act) at national level, or the province that administers the statute, at provincial level. If a User wants to supplement the existing PAJA Desk Audit by auditing legislation that did not form part of that PAJA Desk Audit (for example, legislation that has commenced subsequent to our cut-off date of 31 December 2003), the number allocated to such newly audited legislation should follow the scheme of numbering adopted by us, or some other numbering system that continues to provide a unique reference number for each statute. If it is not important to keep the PAJA Desk Audit in chronological order per sector, but rather in purely chronological order, for example, the numbering system could be changed to reflect such priority. However, care must be taken to ensure that every row in the Excel worksheet that pertains to a particular statute, continues to carry the same reference number.

The differences between number references of national, provincial and secondary legislation are explained below.

National primary legislation

At national level, each statute has a number, and the numbers are allocated from 1 to [x] for each department, in chronological order from oldest to most recent within each Butterworths LexisNexis sector. The sectors, as explained at paragraph 4.4 below in more detail, are ordered alphabetically according to their acronyms.

Provincial primary legislation

At provincial level, each statute administered by a particular province has a number, and the numbers are allocated from 1 onwards in respect of each province. The statutes in each province are ordered by Butterworths LexisNexis sector and, within each sector, in chronological order from oldest to most recent. The sectors are ordered alphabetically according to their Butterworths LexisNexis acronyms.

Secondary legislation

We have given all regulations whose particulars have been audited into the PAJA Desk Audit, the same number as the Act from which they derive, but with an “r” next to the number to indicate that they are regulations.

4.3. Column B: Source

In Column B, we have explained the source of each statute.

National primary legislation

At national level, the source column will always be “N” for national legislation.

Provincial primary legislation

At provincial level, it gets more complicated. As provincial legislation is derived from a number of sources, we gave each province an abbreviation, as follows:

v Gauteng – G;

v Limpopo – L;

v North-West – NW;

v Mpumalanga – M;

v KwaZulu-Natal – K;

v Free State – F;

v Western Cape – WC;

v Eastern Cape – EC; and

v Northern Cape – NC.

Where legislation administered by a province is assigned from national level, we have used the abbreviation “NA” in the source column. Where legislation in a province is assigned from a former “homeland”, we have used the abbreviation “PA” in the source column. Where legislation in a province is assigned from a pre-1994 province, we used abbreviations for the old provinces (T for Transvaal, NL for Natal, C for Cape and O for Orange Free State) in the source column. Finally, where post-1994 legislation has been promulgated by a post-1994 provincial legislature, we used the abbreviation “P” in the source column, to indicate that it constitutes primary provincial legislation.

Secondary legislation

Note that there is no Source column in the Excel workbook for selected secondary legislation.

4.4. Column C: Sector[11]

For purposes of this column, we used the sector categorisations designated by Butterworths LexisNexis. This electronic law database arranges both primary and secondary legislation, at national and provincial levels into sectors. The names of each sector, and the abbreviations used in the PAJA Desk Audit to represent that sector, are set out in the table below.

As mentioned above, we have ordered national primary legislation, and national secondary legislation, per department but within each department, chronologically from oldest to most recent within each sector. The sectors are ordered alphabetically based on their abbreviations. In the table below, the sectors are ordered in the same way.

For example, the Department of Justice administers 8 statutes that fall into the “Contract and Delict” sector, and 19 that fall into the Criminal sector, and so on. Whereas some departments administer legislation that falls into only one or two sectors (such as the Department of Health, for example), other departments, such as Justice, administer legislation from many different sectors.

Sector (as per Butterworths LexisNexis)	Abbreviation
Contract and Delict	C&D
Criminal	CML
Communications	CMM
Commercial law	COM
Constitutional law	CON
Corporate law	CPR
Courts	COU
Citizenship	CZ
Environment and Conservation	E&C
Education	EDU
Energy	ENG
Estates	EST
Family and Persons	F&P
Financial Institutions and Insurance	FII
Finance	FIN
Farming	FRM
General Law Amendment Acts	GLA
History and Culture	H&C
Health	HEA
Housing	HOU
Labour	LAB
Legal Administration	LEG
Land	LND
Liquor	LQ
Provincial and Local Government	PLG
Professions	PRF
Procedural law	PRO
Resources	RES
Revenue	REV
Security and Prisons	S&P
Science	SCI
Shipping	SHP
Income Tax	TAX
Transport	TR
Welfare and Prisons	W&P

If an official plans to use the PAJA Desk Audit but to update it, and wants to retain the sectoral classification, he or she should try to obtain access to the Butterworths LexisNexis database, in order to ascertain how legislation that has come into effect since 31 December 2003, has been allocated to a sector by Butterworths LexisNexis.

4.5. Column D: Department[12]

National government

The “Department” column identifies the department that is responsible for the administration of a particular statute. We obtained this information from a combination of sources, including the legislation itself (often ascertained from the definition of “Minister”), the national government responses to a letter sent to each department at the inception of the Project, information provided to us by GTZ, and the use of national government websites.

We have referred to each department by an abbreviation, based – in respect of national departments – on the departmental names set out in the schedules to the Public Service Act, 1994. These departments, and the abbreviations used in the PAJA Desk Audit, are set out in the table below.

National Department	Abbreviation
Agriculture	AG
Arts and Culture	AC
Communications	CMM
Correctional Services	CS
Defence	DF
Education	ED
Environmental Affairs and Tourism	EAT
Foreign Affairs	FA
Government Communications and Information Systems	GCIS
Health	HEA
Home Affairs	HA
Housing	HOU
Justice	JUS
Labour	LAB
Land Affairs	LA
Minerals and Energy	ME
Provincial and Local Government	PLG
Public Enterprises	PE
Public Service and Administration	PSA
Public Works	PW
South African Revenue Service	SARS
Safety and Security	SS
Science and Technology	ST
Social Development	SD
Trade and Industry	TI
Transport	TR
Water Affairs and Forestry	WAF
National Intelligence Agency	NIA
National Treasury (includes Finance)	NT
Office of the Public Service Commission	PSC
The Presidency	PS
South African Secret Service	SASS
Statistics South Africa	SSA

Where two or more departments are responsible for the implementation of the same statute (either jointly, or each responsible for different parts of a statute) we have audited the statute in the worksheet for one of the responsible departments, have referred to it in a single row in the worksheet for each of the other responsible departments (with a note in the “Comments” column that the statute has been audited in the worksheet for the applicable other department), and we have indicated the multiple responsibility in the “Department” column by including the acronyms for all the responsible departments.

We note that despite our best efforts, there are some statutes at national level that we were unable to allocate to a particular department. Those statutes have been audited together on a separate worksheet labelled “Not specified”. Finally, there is a worksheet labelled “Other”, which contains legislation not administered by any of the other named departments, but by one of a number of miscellaneous entities, including the provinces.

To the extent that we have incorrectly identified legislation as being administered by a particular department, or omitted from a department’s list of legislation statutes administered by them, we recommend that administrators supplement and/ or amend the PAJA Desk Audit accordingly.

Provincial governments

At provincial level, as at national level, we have used the “Department” column in the PAJA Desk Audit to identify the department responsible for the administration of a particular statute. Because the names of departments differ from one province to the next, we set out below a separate table of department names, and their abbreviations, for each province. We note that the names of provincial departments seem to change more frequently than at national level, therefore the names set out below are not necessarily the names of departments as set out in legislation. The names below are the most recent names for the provincial departments that we were able to find, based on a combination of sources such as the provincial legislation itself, the responses from provincial governments to a letter sent to each such department at the inception of the Project, and from searches of provincial government websites and Promotion of Access to Information Act manuals. Where the names applicable to a provincial government department at the time that the PAJA Desk Audit was conducted have subsequently changed, we recommend that administrators update the PAJA Desk Audit to reflect such changes.

NORTHERN CAPE
Department	Abbreviation
Economic Affairs and Tourism	ECT
Education	EDU
Health	HEA
Housing and Local Government	HOU
Agriculture, Nature Conservation and Land Affairs	LA
Premier’s Office	PRE
Provincial Legislature	PL
Transport, Roads and Public Works	TR
Safety and Liaison	SL
Social Services and Population Development	SPD
Sport, Arts and Culture	SAC
Youth	YOU
NORTH WEST
Department	Abbreviation
Agriculture	AG
Arts, Culture, Sport and Recreation	AC
Public Media, Broadcasting and Information Services	CMM
[Finance and] Economic Affairs	EC
Education	EDU
Health and Social Development	HEA
Local Government, Housing, Planning and Development	HOU
Urban Affairs and Land	LND
Premier’s Office	PRE
Provincial Legislature	PL
Tourism and Environmental Affairs	TEA
Transport and Civil Aviation	TR
LIMPOPO
Department	Abbreviation
Education	EDU
Finance	FIN
Health and Welfare	HEA
Housing	HOU
Local Government	LG
Premier’s Office	PRE
Public Works	PW
Tourism and Parks	TP
Transport	TR
EASTERN CAPE
Department	Abbreviation
Agriculture, Environmental Affairs and Development Planning	AED
Cultural Affairs, Sport and Recreation	CA
Education	EDU
Finance and Economic Development	FED
Health and Welfare	HEA
Housing	HOU
Local Government	LG
Premier’s Office	PRE
Transport and Public Works	TR
Tourism and Gambling	TG
EASTERN CAPE
Department	Abbreviation
Agriculture	AG
Education	EDU
Economic Affairs, Environment and Tourism	EC
General	GEN
Health and Welfare	HEA
Housing, Local Government and Traditional Affairs	HLG
Premier’s Office	PRE
Roads and Public Works	PW
Safety, Liaison and Transport	TR
Social Development	SD
Sport, Recreation, Arts and Culture	AC
GAUTENG
Department	Abbreviation
Arts and Culture	AC
Education	ED
Finance and Economic Affairs	FEA
Health and Welfare	HEA
Housing	HOU
Development Planning and Local Government	DP
Premier’s Office	PRE
Public Works	PW
Tourism and Parks	TP
Transport	TR
MPUMALANGA
Department	Abbreviation
Education	EDU
Finance	FIN
Health and Welfare	HEA
Housing	HOU
Land Administration	LA
Local Government	LG
Premier’s Office	PRE
Public Works	PW
Social Services	SS
Tourism and Parks	TP
Transport	TR
Urban Affairs	UA
Youth Affairs	YA
FREE STATE
Department	Abbreviation
Art & Culture, Sports, Science & Technology	A&C
Agriculture	AG
Education	EDU
Finance and Economic Affairs	EC
Health and Welfare	HEA
Housing	HOU
Land Administration	LA
Local Government	PLG
Public Works	PW
Tourism and Parks	TP
Transport	TR
KWAZULU-NATAL
Department	Abbreviation
Agriculture and Environmental Affairs	AEA
Education	EDU
Economic Affairs	EC
Health and Welfare	HEA
Housing	HOU
Traditional Affairs and Local Government	TLG
Premier’s Office	PRE
Public Works	PW
Safety and Security	SS
Transport	TR

4.6. Column E: Act Title [13]

Where an Act, Ordinance or regulation is audited, this column details the name of the Act or Ordinance, and of the secondary legislation (regulations) where such regulations have been given distinguishing names. Administrators who want to use the PAJA Desk Audit are recommended to verify that the Act, Ordinance or regulation title is correctly reflected in the applicable Excel worksheet. In the event that the title recorded therein does not correlate with your department’s record, the necessary amendments to the PAJA Desk Audit should be made.

National legislation

At national level, we have tried to include the names of all primary statutes in operation as at 31 December 2003 that contain substantive provisions (as opposed to merely amending provisions), whether the statute contains administrative action or not.

Provincial legislation

At provincial level, there is legislation emanating from a number of sources. We have, for purposes of the table format reports, separated Acts (whether assigned from the national sphere or from a former “homeland” including the TBVC states, or promulgated by a province itself) and Ordinances.

In the case of legislation emanating from the TBVC states or other former “homelands”, we have inserted in brackets the name of the TBVC state or homeland from which the legislation derives, after the name of the Act. As in the case of national primary legislation, we have tried to include the names of all primary legislation in operation as at 31 December 2003, although as mentioned above we have not been meticulous about verifying the legislation assigned from the national sphere to the provinces.

Secondary legislation

Where regulations are audited, there are two columns dealing with the name. In Column D, the name of the primary legislation in terms of which the regulations are prescribed, is provided, with its Act number and year (for example, Legal Deposit Act, 54 of 1997). In the next column, Column E, the name of the regulations is provided or, if the regulations have not been given a name that describes their content, we have merely stated “Regulations”. As mentioned above, we have not audited all regulations in operation as at 31 December 2003. We have instead audited selected secondary legislation (regulations) as agreed with the Project Sponsors. In other words, the list of regulations included in the PAJA Desk Audit is not a comprehensive list of all secondary legislation.

4.7. Columns F and G: Act Number and Year [14]

National and provincial legislation

Column F of the Excel worksheets for national primary legislation and provincial primary legislation details the official number of the Act.

Column G of the Excel worksheets for national primary legislation and provincial primary legislation details the year that the Act or Ordinance was enacted (which is not necessarily the year that it came into operation).

Secondary legislation

Where regulations are audited, Column F details the Regulation notice number under which the regulations were promulgated in the national or provincial Gazette, as the case may be. Column G, in the Excel workbook for selected secondary legislation, details the Government Gazette number in which the regulations were promulgated.

4.8. Column H: Administrative Action

National legislation

At national level, we have completed this Column H with one of three answers, to the question of whether a particular Act audited for purposes of the Project contains any administrative action at all, or not. The three possible answers are YES (Y), NO (N) or REDUNDANT (R), which are used in the PAJA Desk Audit as follows:

v Even if the Act contains one administrative action only, the answer is YES (Y).

v Where an Act contains no administrative action at all, we have indicated this with a NO (N) in the “Administrative action” column, and have given a brief description of the purpose of the Act, in the “Comments” column. We have left the remaining columns of the worksheet blank.

v Where the Act is clearly redundant, in the sense of not being in operational use in South Africa today, we have marked the Act REDUNDANT (R), even if it does contain administrative action, and have not audited it any further. We took a conservative view of redundancy for purposes of the Project. Where we marked a particular statute as redundant, we have left the remaining columns of the worksheet blank.

Provincial legislation

At provincial level, we have completed the “Administrative action” column with one of four answers, to the question of whether a particular Act/Ordinance audited for purposes of the Project contains any administrative action at all, or not. The four possible answers are YES (Y), NO (N), REDUNDANT (R) or NOT APPLICABLE (n/a), which are used in the PAJA Desk Audit as follows:

v Even if the Act/Ordinance contains one administrative action only, the answer is YES (Y).

v Where an Act/Ordinance contains no administrative action at all, we have indicated this with a NO (N) in the “Administrative action” column, and have given a brief description of the purpose of the Act/Ordinance, in the “Comments” column. We have left the remaining columns of the worksheet blank.

v Where the Act/Ordinance is clearly redundant, in the sense of not being in operational use in South Africa today, we have marked the Act REDUNDANT (R), even if it does contain administrative action, and have not audited it any further. We took a conservative view of redundancy for purposes of the Project. Where we marked a particular statute as redundant, we have left the remaining columns of the worksheet blank.

v “NOT APPLICABLE” has been inserted where the Act or Ordinance has been audited either at national level or in the audit pertaining to another province. In that event, we have made a note in the “Comments” column to that effect.

Secondary legislation

Because of the high volume of regulations that were scanned by us, it was not feasible to include the details of all regulations whether they contain administrative action or not. Therefore, the “Administrative action” column will, in the case of regulations, always be completed as YES (Y). This means that all regulations reviewed by us that are redundant or that contain no administrative action at all, have been excluded altogether from the applicable Excel workbook.

4.9. Columns I and J: Section number and title

In Column I, depicting the section number, we refer to the precise section and sub-section numbers of the statutory provision/s that constitute a particular administrative action. Where the administrative action is made up of statutory provisions from more than one section or sub-section, we have used the abbreviation “rw” (read with) to signify that those provisions must be read together in order to capture the administrative action as a whole. We have not included the word “section” or the abbreviation “s” for a section number, but simply the number, for example “5(3)(a)(i) rw 6(1)(a)”.

We note that in compiling the PAJA Desk Audit, there was inevitably a certain amount of inconsistency as regards the process of identification of applicable sections and subsections. One legal professional’s view on the particular provisions that make up an administrative action may be different from that of another. For example, some legal professionals will have gone to greater lengths than others to explicitly exclude provisions (such as subsections) that are not directly relevant to the administrative action in question. It might also be that one legislative provision will contain a number of different administrative actions, in which case different legal professionals will separate the administrative actions differently. Administrators should take these differences into account when reviewing the PAJA Desk Audit.

In Column J, which provides the applicable section title/s, we have used the full titles of the sections that we identified as comprising an administrative action. Where an administrative action is made up of more than one section or sub-section of an Act, we have inserted the titles of both/all relevant sections.

4.10. Column K: Category of administrative action

We developed a list of categories of administrative action based primarily on the purpose or effect of a particular administrative act. The categories of administrative action that we identified do not, together, constitute a comprehensive list of all possible administrative actions taken by administrators however we advise that administrators maintain and apply the categories identified and used by us in the table format report for purposes of consistency. Also, there may be some overlap between categories, or individual professionals’ understanding of the scope of the categories. Although we added to this list during the auditing process, our final list comprised of 56 categories of administrative action, as set out in the table below:

Acc	Accreditation
App	Appointment (either to a board/corporation/committee, or to a job.) Appointment provisions that are totally discretionary (eg allowing the Minister freedom to appoint) are not administrative action. An appointment either to a normal job, or to a board etc where some sort of nomination or application or invitation procedure is entrenched in a statute, is administrative action.
Arr	Provisions relating to the arrest of a person. (In terms of section 1 of PAJA, a decision to institute a prosecution is not administrative action, but an arrest is a prior action that may not result in prosecution, and therefore is administrative action.)
Auth	Authorisation, usually to do a particular thing.
Awa	Award – the making of an award, or the refusal to make an award, by an administrator (eg an award of compensation for occupational injury)
Br	The power of an official to “bring” a person before a court or tribunal
Cert	Certification that constitutes administrative action. (eg section 47 of the Lotteries Act deals with the certification of lottery managers)
Canc	Cancellation- referring to instances in which an administrator is authorised to cancel a document issued to an individual as a result of it being incorrectly issued, etc.
Cond	Setting or amending conditions of service of employees or board members (other than as regards remuneration).
Cons	Consent- where the consent or approval of an administrator is required in order to do a particular thing
Cont	Contracts- this applies to provisions that empower an administrator to enter into agreements with third parties, including the setting of terms and conditions.
Decl	Declaration that constitutes administrative action.
Dem	Demolition
Des	Designation. (eg of particular officials or persons, as authorised to do a particular thing)
Det	Determination. There are a number of different types of determinations made by administrators, which could be administrative action.
Dir	Directions – the power to give directions in such manner as affects rights and has an external legal effect and therefore constitutes administrative action
Disp	Disposal, usually of an asset
Disc	Disciplinary procedures.
Diss	Administrative decision to dissolve an entity.
DR	Dispute resolution by an administrator, which is binding on the parties thereto.
EA	External appeal (ie appeal against an administrative action, to a different entity other than a court)
ER	External review (ie review of an administrative action, to a different entity other than a court)
Exam	Examination (the power of an administrator to examine or interrogate a person).
Exem	Exemption from something.
Exp	Decision to expropriate property in terms of legislation.
Ext	Extension of time granted by an administrator.
Gra	Grant (of access, or something else) or allocation of benefits.
IA	Internal appeal (ie appeal against an administrative action, to a different official or officials within the same entity)
IR	Internal review (ie review of an administrative action, to a different official or officials within the same entity)
Inf	Information - covering all requests for information by an administrator for purposes of making a determination or the furnishing of information pertaining to the affected person by an administrator to other persons/ bodies.
Inq	Inquest
Insp	Inspection powers (includes the power to enter into premises, questioning people and inspecting books and documents, etc)
Inv	Investigations - this category provides for more formal "information-gathering" exercises of administrative action, such as where an administrator investigates a complaint or such other matters for purposes of making a determination.
Lic	Licensing (including power to grant, revoke or amend licences, and the setting of licence conditions)
NC	Non-curial judicial power (other than the issue of a warrant, and the issue of a subpoena, by a judge or magistrate in chambers. The reason for this is that we have separate categories for these acts).
Ord	Order or award made by someone other than a judicial officer, eg by the CCMA or another administrative tribunal.
Pay	This relates to specific grants or allocations or payments of funds. This is not related to general financing internal to the state or a department, but rather when an amount or a payment to a member of the public or a juristic person is determined.
Pen	Penalty – imposition of a penalty by an administrator (could be financial or other type of penalty).
Perm	Granting or withdrawing permission or permits, setting conditions relating to the permission or permits.
Pro	Prohibition
Pub	Publication that amounts to administrative action
Regi	This concerns registration (e.g. registration of a person or business with a professional or statutory body). It may include suspension and revocation of registration as well.
Regs	Regulation-making powers or rule-making powers.
Rem	Setting or amending remuneration of staff or board members.
Rest	The imposition of restrictions by an administrator, that has external legal effect, affects rights and is therefore administrative action
Rgng	Regulatory negotiation. This category will be quite rare. The process around the selection of the second national operator (assuming that the process is empowered administratively) may be an example of this, where a process of negotiation among certain players is demarcated and where a state actor is usually involved as a facilitator.
Sea	Search powers
Sec	Security – the power of an administrator to require and determine security payable before a person or entity can do a particular thing.
Seiz	Seizure - relating to any administrative acts involving the seizure of property belonging to persons where the manner of such seizure (e.g. by way of a warrant) is not prescribed.
Sta	Status- where an administrator's decision affects a person's status. (This came up quite a bit in the citizenship legislation)
Sub	Issue of a subpoena (other than in a courtroom). This is administrative action.
Tend	Decisions and actions relating to tender processes.
Term	Termination of position as employee or board member, including dismissal.
Test	Physical tests, eg fingerprinting and other medical or identity tests.
Tran	Transfer (usually of staff, but only if it amounts to administrative action)
War	Issue of a warrant (either for arrest, if outside of a court, or for search and seizure or other matters). This could be done by, inter alia, a police official, magistrate or judge. The decision to seek a warrant is not administrative action, and nor is the execution of the terms of a warrant (eg the actual entry, search and seizure).

As far as possible, we have limited the “Category” column to a single category of administrative action. Where a particular statutory provision contains a number of administrative actions, we have separated these out into separate rows. There are a couple of exceptions to this.

v The first relates to Appointment and determination of Conditions of employment, including Remuneration. A single statutory provision frequently deals with appointment, determination of terms and conditions, determination of remuneration, and sometimes termination of employment as well. The three or four categories of administrative action generally operate together and, for purposes of implementation of the PAJA procedural fairness requirements, we have dealt with the three or four categories together.

v A second exception to the general rule, is Inspection, Search and Seizure provisions. Often these go together as part of a single act or procedure, and are contained in a single statutory provision. Therefore, where we have found it difficult to separate out the individual administrative actions, we have included more than one category in one row of the PAJA Desk Audit.

5. PAJA PROCEDURAL FAIRNESS COMPLIANCE

5.1. Introduction

Once the preliminary information (Columns A to K) in respect of a particular statutory provision has been recorded in the Excel workbook, it is necessary to assess the status of particular administrative actions with reference to the extent of their compliance with elements of procedural fairness under either section 3 or section 4 of the PAJA or both sections 3 and 4 (so-called “hybrid” provisions). In order to make this status assessment (which is set out in Column AA, called “Status”), Columns L to Z of the Excel workbook will need to be completed, which involves an evaluation of the statutory administrative action against each component of PAJA procedural fairness. The components against which each statutory administrative action is measured depends on whether it is administrative action in terms of section 3 of the PAJA (affecting any person) or section 4 of the PAJA (affecting the public).

Below we set out an extract from the PAJA Audit of national primary legislation, showing Columns E to Z of the Excel workbook pertaining to legislation administered by the Department of Arts and Culture.

E	F	G	H	I	J	K	L	M	N	O	P	Q	R	S	T	U	V	W	X	Y	Z
Name of Act	Act No.	Year	Admin Action	Section no.	Title	Category	SECTION 3								SECTION 4
							EE					DE			PI				N&C
							1	2	3	4	5	1	2	3	1	2	3	4	1	2	3
National Film and Video Foundation Act	73	1997	Y	6(1) and (2)	Establishment and composition of Council, tenure of office and filing of vacancies.	App	n	n	n	n	n	n	n	y	n/a	n/a	n/a	n/a	n/a	n/a	n/a
National Film and Video Foundation Act	73	1997	Y	6(6)	Establishment and composition of Council, tenure of office and filing of vacancies.	Term	n	n	n	n	n	n	n	n	n/a	n/a	n/a	n/a	n/a	n/a	n/a
National Film and Video Foundation Act	73	1997	Y	6(8)	Establishment and composition of Council, tenure of office and filing of vacancies.	Rem	n	n	n	n	n	n	n	n	n/a	n/a	n/a	n/a	n/a	n/a	n/a
National Film and Video Foundation Act	73	1997	Y	6(10)	Establishment and composition of Council, tenure of office and filing of vacancies.	Diss	n/a	n/a	n/a	n/a	n/a	n/a	n/a	n/a	n	n	n	n	n	n	n

5.2. Step 1: determine whether the provision is section 3 or 4 administrative action

The nature and extent of the procedural fairness measures that the PAJA requires an administrator to apply in particular circumstances depends, inter alia, on the type of administrative action it is. The PAJA makes a distinction between administrative action affecting “any person” (section 3), and administrative action affecting “the public” (section 4).

In addition to classifying an administrative action as affecting either a person (section 3) or the public (section 4) we found during the course of the PAJA Desk Audit, a number of administrative actions that affect both a person and the public, and are therefore hybrid provisions (section 3 and section 4). Appointments to public positions requiring nominations from stakeholders or the public generally, for example, have consequences both for the person nominated, and for the nominators. The person nominated is affected in the same way as any applicant for a job. The nominator is affected in a different way, in that the portion of the public represented by them has an interest in the outcome and thus the fairness of the process. Another example of administrative action that affects both a person and the public, is licensing of activities that affect the public in the sense that licensees are allocated a scarce resource to which the public wants access. Broadcasting and casino licences are good examples of this. In these cases, the statutory administrative procedure often provides for procedural fairness measures designed to address the rights and interests both of the person affected and of the public. Where possible, although not comprehensively, we have noted in the Comments column of the Excel workbook that we believe a particular administrative action is a hybrid provision. However, for purposes of the PAJA Desk Audit we have evaluated it as either section 3 administrative action or section 4 administrative action.

5.2.1. Administrative Action in terms of section 3 of the PAJA

Section 3 of the PAJA regulates procedural fairness as regards “administrative action affecting any person”. Section 3(1) provides that administrative action that materially and adversely affects the rights or legitimate expectations of any person, must be procedurally fair.

Section 3(2) of the PAJA sets out five essential elements of procedural fairness in this context. We have dealt with each of these five essential elements by means of separate columns in the Excel workbook (Columns L, M, N, O and P). The purpose of these columns is to assess the extent to which statutory administrative actions comply with, in the sense of making provision for, the five essential elements of procedural fairness, whether by explicitly requiring that a particular procedure be followed or right be protected, or by explicitly stating that a procedure or protection is not required.

Section 3(3) of the PAJA sets out three discretionary elements of procedural fairness, in the context of administrative action affecting any person. We have dealt with each of these discretionary elements by means of separate columns in the Excel workbook (Columns Q, R and S).

5.2.2. Administrative Action in terms of section 4 of the PAJA

Section 4 of the PAJA regulates procedural fairness as regards “administrative action affecting the public”. Section 4(1) provides that in cases where an administrative action materially and adversely affects the rights of the public an administrator, in order to give effect to the right to procedurally fair administrative action, must decide whether to hold either a public inquiry, or a notice and comment procedure, or a combination of both, before taking the administrative action.

The PAJA Desk Audit therefore provides for each element of a public inquiry procedure (there are four elements, set out in Columns T, U, V and W), and each element of a notice and comment procedure (there are three elements, set out in Columns X, Y and Z), in order to identify the extent to which statutory administrative actions affecting the public make provision for the elements of procedural fairness relating to either public inquiries or notice and comment (or in some instances, but rarely, both).

5.3. Step 2: evaluate primary legislation against PAJA requirements

Once all administrative actions have been identified and classified as section 3 or 4 or as hybrid provisions, a department must work out what kind of procedural fairness obligations it needs to apply thereto. The PAJA should be used as a benchmark for minimum standards of procedural fairness. Below we discuss each element of section 3 and section 4 procedural fairness in turn.

5.3.1. Elements of section 3 procedural fairness (Columns L to S)

In relation to section 3 administrative actions, the PAJA sets out five mandatory elements of procedural fairness, and three discretionary elements. We have described these, in the PAJA Desk Audit, as essential elements (EE) and discretionary elements (DE). Therefore, we have evaluated every administrative action identified by us in primary legislation against the elements EE1 to EE5 and DE1 to DE3.

Below we set out a brief description of each essential element and each discretionary element of procedurally fair administrative action affecting any person, and the way we interpreted each of these elements, for purposes of the PAJA Desk Audit.

As a general interpretative rule, we treated the five essential elements as being fulfilled only where the audited statutory provision made the fulfilment of that element an obligatory part of a procedure, whereas the discretionary elements would be fulfilled where the administrator could choose to offer that right to the affected person. For example, where a statutory provision permits the administrator to call for representations but does not obligate the administrator to do so, we treated the essential element relating to representations (EE2) as not having been fulfilled.

5.3.2. Column L: EE1 (adequate notice)

This element requires adequate notice of the nature and purpose of the proposed administrative action, and is derived from sub-section 3(2)(b)(i) of the PAJA. For purposes of the Audit, we interpreted this provision to require prior notice of an administrative action, in other words notice of the intention to decide rather than notice of the decision. We also did not assess in any depth the adequacy of the notice required. If a statutory provision explicitly required prior notice of a proposed decision, we treated the statute as providing for adequate notice.

Where a statutory provision does require notice, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that no notice is required, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of notice, but by explicitly precluding the need for notice rather than by requiring notice.

The term “notice” is used frequently in legislation to refer not only to prior notice of a proposed decision as contemplated in sub-section 3(2)(b)(i) of the PAJA, but also to refer to notification of an administrative action already taken (for example, an administrator can terminate a permit on notice to the person affected, with effect from the date specified in the notice. Or, the Minister may make regulations by notice in the Gazette). Notwithstanding this, it is almost always clear from the context when prior notice of a proposed decision is required, and when notification of an administrative action already taken is required. As stated above, we understand sub-section 3(2)(b)(i) of the PAJA to require the former. Administrators should also note that where an explicit opportunity to make representations was given in a provision, we would imply that notice is also given. Thus, we have treated EE1 as being fulfilled where EE2 is fulfilled, if appropriate in the context.

5.3.3. Column M: EE2 (reasonable opportunity to make representations)

This element involves a reasonable opportunity to make representations, and is derived from sub-section 3(2)(b)(ii) of the PAJA. For purposes of the Audit, we interpreted this provision to require an opportunity to make representations of some unspecified sort, prior to an administrative action being taken. One could be given the opportunity to make written submissions or comments, or there could be a requirement that the administrator consults with the person affected before making a decision, or seeks his or her consent to the decision. Where a provision explicitly required an opportunity to make representations of some sort, we assumed that such opportunity was reasonable.

As with EE1, the requirement of an opportunity to make representations does not seem to fit neatly with administrative actions that are taken on the basis of applications. Where a statutory licensing procedure, for example, permits applications and specifies the information to be provided to substantiate the application, such information serves as an opportunity to make representations, but is not, in our view, the opportunity contemplated by EE2. As with the notice requirement, we have interpreted EE2 as requiring a further opportunity to make representations, such opportunity being presented in contemplation of a decision or action to be taken by the administrator, and therefore we did not treat the opportunity to make an application, with or without supporting documentation, as an opportunity to make representations prior to an administrative action.

Where a statutory provision does require an opportunity to make representations prior to an administrative action, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that no opportunity to make representations is to be provided, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of representations, but not by requiring the opportunity to make them.

5.3.4. Column N: EE3 (clear statement of the administrative action)

This element involves a clear statement of the administrative action, and is derived from sub-section 3(2)(b)(iii) of the PAJA. We interpreted this requirement to mean that the statutory provision must explicitly deal with the publication, or notification, of the administrative action. This could be a requirement that the administrative action be in writing, or that it be conveyed to the person affected in a particular manner, or that it be in the form of a certificate or licence or other document. Also, where a statutory provision states, for example, that a person or body could, on appeal or review, confirm or overturn or amend an earlier decision, we interpret this as fulfilling the requirement of a clear statement of the administrative action. However, where a statutory provision does not specify the form of the administrative action, for example where a provision states that a person may not do something without the approval of X, and does not state that the approval must be in writing or must be communicated to the person affected, we regard this as not fulfilling the requirement of a clear statement of the administrative action.

In a number of statutes, a report or other statement of the administrative action is required by law, but it is not always notified to the affected person. In these cases, we generally treated EE3 as having been fulfilled, although this will depend on the particular provision and the context in which it is found. Furthermore, in certain contexts the clear statement requirement can be implied, where other related elements of procedural fairness were explicitly catered for. For example, where an administrator is required to provide written reasons for a decision to the person affected, it could be implied that the decision that gave rise to the reasons would be clearly stated, and thus that EE3 would be fulfilled.

Where a statutory provision does require a clear statement of the administrative action, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that no clear statement of the administrative action is to be provided (highly unlikely), we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of a clear statement, but by precluding the need therefor rather than by requiring it.

5.3.5. Column O: EE4 (notice of a right of review or internal appeal)

This element involves notice of the right of review (to a court) or, where applicable, internal appeal (ss 3(2)(b)(iv) of the PAJA). We interpreted this to require that a statutory provision include an express obligation on an administrator to notify the person affected of such right. In other words, a statutory provision that includes a right of review or appeal, but does not obligate the administrator to notify the person affected of such right, would not fulfil EE4.

Where a statutory provision does require notification of a right of review or appeal, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states either that the right of review or appeal must not be notified to the person affected (highly unlikely), or states that the administrative action is final and no right of appeal or review exists, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of notice of a right of review or appeal, but by precluding the need therefor rather than by requiring it.

5.3.6. Column P: EE5 (notice of the right to request reasons)

This element involves notice of the right to request reasons, and is derived from sub-section 3(2)(b)(v) of the PAJA. We interpreted this to require that a statutory provision include an express obligation on an administrator to notify the person affected of such right. In other words, a statutory provision that includes a right to request reasons, but does not obligate the administrator to notify the person affected of such right, would not fulfil EE5. However, EE5 would be fulfilled where a statutory provision requires an administrator to provide written reasons for the administrative action without a request for reasons being made.

Where a statutory provision does require notification of the right to reasons, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states either that the right to request reasons must not be notified to the person affected (highly unlikely), or states that no right to reasons exists, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of notice of a right to reasons, but by precluding the need therefor rather than by requiring it.

5.3.7. Column Q: DE1 (the right to obtain assistance)

This discretionary element involves the right to obtain assistance, whether it be assistance from a legal representative, or another type of assistance. This element derives from sub-section 3(3)(a) of the PAJA.

We did not imply the right to obtain assistance into a statutory provision. In other words, even where it was clear that an oral hearing was contemplated, we treated DE1 as having been fulfilled only where the statutory provision expressly permitted, or gave the administrator discretion to permit, legal or other representation or assistance for the person affected by the administrative action.

Where a statutory provision does expressly permit the person affected to obtain assistance, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that the person affected may not obtain assistance, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of obtaining assistance, but by precluding the possibility thereof rather than by permitting it.

5.3.8. Column R: DE2 (the right to present and dispute information and arguments)

This discretionary element involves the right to present and dispute information and arguments, and is derived from sub-section 3(3)(b) of the PAJA. Although a few statutory provisions do explicitly permit a person affected by an administrative action to present and dispute information and arguments, in some cases we have had to make a judgment call as to whether it can be implied, by the fact of a person having a hearing or being able to call witnesses, for example, that the person may present and dispute information and arguments.

There are at least some instances where this element is satisfied despite the lack of an explicit right to appear in person. For example, where access is provided, via inspection, to written objections of others, for instance to a new planning development, this element would be satisfied. In most cases where this element is satisfied, it is satisfied through a process of implication rather than being provided explicitly.

Where a statutory provision does expressly or impliedly permit the person affected to present and dispute information and arguments, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that the person affected may not present and dispute information and arguments, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of presenting and disputing information and arguments, but by precluding the possibility thereof rather than by permitting it.

5.3.9. Column S: DE3 (the right to appear in person)

This discretionary element involves the right to appear in person, and is derived from sub-section 3(3)(c) of the PAJA. In some statutory provisions it is clear whether the right to appear in person exists, and in some cases, for example where a statute permits a person “to be heard”, it is less clear but can usually be implied. We have, therefore, made some judgment calls as to whether DE3 has been fulfilled in a particular case.

Where a statutory provision does expressly or impliedly permit the person affected to appear in person, we marked this column with a “y” for “yes”. Where it does not, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that the person affected may not appear in person, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of appearing in person, but by precluding the possibility thereof rather than by permitting it.

5.4. Elements of section 4 procedural fairness (columns T to Z)

In relation to section 4 administrative actions, as mentioned, the PAJA gives administrators a choice of considering whether to apply a public inquiry (PI) procedure, a notice and comment (N&C) procedure, or a combination of both procedures. Each of the public inquiry and notice and comment requirements have different elements, which we have described as PI1 to PI4 and N&C1 to N&C3.

Below we set out a brief description of each element of procedurally fair administrative action affecting the public (in other words each element of a public inquiry procedure, and each element of a notice and comment procedure), and the way we interpreted each of these elements, for purposes of the PAJA Desk Audit.

5.4.1. Column T: PI1 (appointment of a suitably qualified person to conduct the inquiry)

This element involves the appointment of an administrator or other suitably qualified person to conduct the public inquiry, and is derived from sub-section 4(2)(a) of the PAJA. We interpreted this provision to require that where a public inquiry would be held in terms of a statutory provision, the person or persons who would conduct the inquiry must be specified in the statutory provision. Where a statutory provision specified the administrator or other person to conduct the inquiry, we assumed for purposes of the PAJA Desk Audit that the qualifications of such person were suitable.

Where a statute provides for a public inquiry, and the inquiry provisions specify the administrator or other person or body that must conduct the inquiry, we marked this column with a “y” for “yes”. Where those provisions do not specify the persons to conduct the inquiry, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that no administrator or other suitably qualified person must conduct the inquiry (highly unlikely), we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of the person conducting the inquiry, but by precluding the need for such a person rather than by requiring it.

5.4.2. Column U: PI2 (public hearing)

This element involves a requirement that the procedure prescribed for a public inquiry must include a public hearing, and is derived from sub-section 4(2)(b)(i)(aa) of the PAJA. We interpreted this provision to require that statutory public inquiry provisions expressly provide for a public hearing, as opposed to it being implied that an inquiry would involve a public hearing. Where an administrator conducting an inquiry was given discretion, by the statutory provision, as to whether to hold a public hearing, we interpreted PI2 as not being fulfilled.

Where a statute provides for a public inquiry, and the inquiry provisions specify that a public hearing is a necessary part of the procedure, we marked this column with a “y” for “yes”. Where those provisions do not specify that a public hearing is required, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that no public hearing will be held, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of a public hearing, but by precluding the need for such a hearing rather than by requiring it.

5.4.3. Column V: PI3 (compilation of a written report on the inquiry)

This element requires that the person conducting a public inquiry must compile a written report on the inquiry, including reasons for action taken or recommended, and is derived from sub-section 4(2)(b)(iii) of the PAJA. We interpreted this element to require a clear written statement of the administrative action. We did not investigate in detail the requirement of reasons for action taken or recommended. Where a statutory provision required a report to be written on the conclusion of a public inquiry, we assumed that such report would contain reasons for action taken or recommended.

Where a statute provides for a public inquiry, and the inquiry provisions specify that a written report must be compiled as a necessary part of the procedure, we marked this column with a “y” for “yes”. Where those provisions do not specify that a written report is required, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that no written report will be compiled, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of a written report, but by precluding the need for such a report rather than by requiring it.

5.4.4. Column W: PI4 (publication of and communication regarding the report)

This element requires that the person conducting the public inquiry must publish a summary of their written report in the Government Gazette, and communicate regarding the report, in another effective way. This element is derived from sub-section 4(2)(b)(iv) of the PAJA. For purposes of the PAJA Desk Audit, we interpreted the provision to require that either of the two methods of publication would be sufficient. Thus, a statutory requirement of either Gazette publication of a concise summary, or of effective public communication by another method, would satisfy the PI4 element for purposes of this PAJA audit.

Note that where a statutory provision involving administrative action affecting the public does not provide for either a public inquiry or a notice and comment procedure, we did not treat PI4 as having been fulfilled. The reason for this is that we believe that a mere publication requirement, without the need for an administrator to consider either a public inquiry procedure or a notice and comment procedure, does not fulfil the requirements of PI4.

5.4.5. Column X: N&C1 (communicating the administrative action and calling for comments)

This element involves the administrator communicating the administrative action to persons likely to be affected and calling for comments, and is derived from sub-section 4(3)(a) of the PAJA. We interpreted this provision to require communication and a call for comments prior to the administrator taking the administrative action, in other words communication of a proposed administrative action, and a call for comments on the proposed administrative action. Notice of the administrative action, in the sense of publication of the administrative action, would thus not fulfil N&C1. Moreover, provisions that specified notice but without comment did not satisfy this element.

We found that many statutory provisions involving administrative action affecting the public provide for notice of the proposed action to be given to certain specified stakeholders, but not to the public as a whole. Such stakeholders may be internal to government, or external in some instances In these cases, we treated N&C1 as not having been fulfilled. The reasons for this are that (a) it was difficult for us to evaluate the adequacy of the specified group from whom comments should be sought; and (b) such provisions requiring notice to be given to specified persons, could be supplemented by the PAJA in that notice could also be given to the public as a whole. [Ultimately, however, it may be justifiable for the legislature to have provided for notice to be given to selected stakeholders only, if sufficiently representative of that portion of the public to be affected by the administrative action.]

Where a statute provides for a notice and comment procedure, and the notice and comment provisions specify that prior notice must be given to the public as a necessary part of the procedure, we marked this column with a “y” for “yes”. Where those provisions do not specify that prior notice to the public is required, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that prior notice to the public must not be given, we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of notice to the public, but by precluding the need for such notice rather than by requiring it.

5.4.6. Column Y: N&C2 (obligation to consider any comments received)

This element involves an obligation to consider any comments received, and is derived from sub-section 4(3)(b) of the PAJA. We interpreted this provision fairly strictly, as requiring explicit statutory instruction to the administrator concerned, to consider the comments received. In other words, where a statute provides for notice to be given to the public, but does not state anything about consideration of the comments by the administrator, we treated N&C2 as not having been fulfilled. This is despite the fact that a court may well imply that obligation from the requirement to call for comments.

5.4.7. Column Z: N&C3 (administrator must decide whether to take the administrative action)

This element involves the administrator deciding whether or not to take the administrative action, and is derived from sub-section 4(3)(c) of the PAJA. We interpreted this provision somewhat widely, so as to make sense of statutory provisions regarding, for example, regulation-making. Where a statutory provision empowers an administrator to take administrative action affecting the public, and obligates him or her to seek comment from the public, we implied, in appropriate contexts, the fulfilment of N&C3. However, where a statutory provision empowers an administrator to take administrative action affecting the public, and does not obligate him or her to seek comment from the public, we did not generally imply the fulfilment of N&C3.

Where a statute provides for a notice and comment procedure, and the notice and comment provisions expressly or impliedly require the administrator to take the administrative action after receiving and considering comments, we marked this column with a “y” for “yes”. Where those provisions do not expressly or impliedly require the administrator to take the administrative action, we marked the column with an “n” for “no”. Where a statutory provision explicitly states that the administrator must not decide whether or not to take the administrative action (highly unlikely), we marked the column with a “d”. This indicates that the statutory provision has dealt with the issue of deciding whether or not to take the action, but by precluding the need to do so rather than by requiring it.

6. STATUS AND COMMENTS

6.1. Introduction

This chapter explains the final two columns of the table format report, the status column and the comments column. We also include a discussion of how administrators should determine whether a statutory provision constitutes a reasonable and justifiable departure from the procedural fairness requirements of the PAJA. The status column is in some sense the culmination of the entire review process of a statutory provision in that it indicates the extent of its compliance with the requirements of procedural fairness under the PAJA as well as its constitutionality. Lastly, we explain the purpose of the comments column, which is principally to record relevant information pertaining to a particular audited provision that supplements or explains the standard information contained in the preceding columns.

Below we set out an extract from the Excel workbook for national primary legislation, showing the Status and Comments columns (Columns AA and AB), along with Columns A to H so that the Status and Comments assessments can be linked to particular legislation. This extract is derived from national legislation administered by the Department of Transport.

A	B	C	D	E	F	G	H	AA	AB
No.	Source	Sector	Department	Name of Act	Act No.	Year	Admin Action	STATUS	COMMENTS


1	N	E&C	TR	Advertising on Roads and Ribbon Development Act	21	1940	Y	sup	See the definition of "controlling authority".
1	N	E&C	TR	Advertising on Roads and Ribbon Development Act	21	1940	Y	sup	See the definition of "urban area".
1	N	E&C	TR	Advertising on Roads and Ribbon Development Act	21	1940	Y	sup

6.2. Column AA: Status

In the “Status” column, each statutory administrative action is evaluated based on the extent of its overall PAJA procedural fairness compliance, and is allocated to one of four assessment categories. The four assessment categories are as follows:

v supplementable (“sup”);

v compliant (“c”);

v fair but different (“fbd”); and

v different and unfair (“du”).

The meaning of each of the four status assessment categories is described below.

6.2.1. Supplementable (“sup”)

A statutory administrative action is assessed as “supplementable” when it does not contain all the essential elements of procedural fairness as required by either section 3 or section 4 of the PAJA, but is supplementable by the PAJA. We use the term “supplementable” to mean that there is nothing in the statutory administrative action that is inconsistent with the requirements of PAJA procedural fairness, in other words nothing preventing it from being supplemented by the PAJA in order to meet the requirements of procedural fairness.

We note that an assessment of supplementability does not include an evaluation of whether, in a particular case, it is appropriate for the statutory administrative action to be supplemented by every element of procedural fairness as set out in the PAJA; in other words administrators are expected to conduct a context-specific inquiry in particular cases in order to assess what the particular case requires, and thus whether a “justifiable departure” as contemplated by sections 3(4) and 4(4) of the PAJA is permitted. See further, in regard to justifiable departures, paragraph v below.

As mentioned above, we found during the course of the PAJA Audit Project that the vast majority (approximately 97%) of all statutory administrative actions are supplementable.

6.2.2. Compliant (“c”)

When a statutory administrative action is assessed as “compliant”, we mean that it already provides for all the requirements of procedural fairness as set out in section 3 or section 4 of the PAJA, and therefore need not be supplemented by the PAJA (at least as far as procedural fairness is concerned).

6.2.3. Fair but different (“fbd”)

A statutory administrative action is assessed as “fair but different” when it does not contain all the essential elements of procedural fairness as set out in sections 3 or 4 of the PAJA, and further it cannot in all respects be supplemented by the PAJA because there is something in the statutory administrative action that is directly inconsistent with or different from a requirement of the PAJA, but where the statutory administrative action is nonetheless fair. In other words, this assessment applies when a statutory provision is necessarily inconsistent with sections 3 or 4 of the PAJA (either because it is a different procedure that cannot be supplemented by the PAJA, or because it explicitly prohibits one or more of the essential elements of procedural fairness under the PAJA), but is nonetheless fair in the sense that it is justifiable from a constitutional perspective. Where we have assessed a statutory administrative procedure as being fair but different, we have put a reason in the “Comments” column.

6.2.4. Different and unfair (“du”)

An assessment as “different and unfair” means that a statutory administrative action does not contain all the essential elements of procedural fairness as set out in sections 3 or 4 of the PAJA, and that it cannot in all respects be supplemented by the PAJA because there is something in the statutory administrative action that is in direct conflict with or different from a requirement of the PAJA, which is in our estimation, unfair. In other words, this assessment applies when a statutory provision is necessarily inconsistent with sections 3 or 4 of the PAJA (either because it is a different procedure that cannot be supplemented by the PAJA, or because it explicitly prohibits one or more of the essential elements of procedural fairness under the PAJA), and it is unfair in that the particular statutory limitation on the right to procedural fairness cannot be justified in the constitutional sense. Where we have assessed a statutory administrative procedure as being different and unfair, we have put a reason in the “Comments” column.

6.3. Column AB: Comments

The “Comments” column was used during the PAJA Audit Project for a variety of purposes. Firstly, to give a brief description of the purpose and content of an Act, where the Act contains no administrative action at all, or has expired. Secondly, individual professionals used the “Comments” column to explain decisions made by them during the course of the Audit that may not have been self-explanatory. Thirdly, it was used to provide an explanation for an evaluation of a provision as either fair but different (fbd) or different and unfair (du). Lastly, it was used to provide information about a statutory administrative action and to make observations as to peculiarities or notable aspects of a statutory administrative action.

In our view, there are a number of refinements of the PAJA Desk Audit that could be made through the use of the Comments column, in order to improve its usefulness for administrators. For example, we believe the Comments column could be used for the following additional purposes:

v giving practical guidance to administrators on how to implement the requirements of procedural fairness through supplementation by the PAJA;

v in the case of section 4 administrative action (especially regulation-making), it could be noted where the statutory administrative action provides for some kind of consultation with stakeholders or specified portions of the public, and the nature and scope of that consultation, even where the statutory administrative action does not provide for a full public inquiry or notice and comment procedure;

v in respect of both section 3 and section 4 administrative action that is “supplementable” as per our assessment, comments could be made as to whether it is appropriate in the circumstances to supplement the statutory administrative action by using the PAJA, or whether a departure is justified from any of the elements of procedural fairness (in which regard see further paragraph 6.4 below);

v where a statutory administrative action is a hybrid of section 3 and section 4 administrative action, this could be noted.

6.4. Excursus: Justifiable departures

As stated above, the PAJA Desk Audit evaluates each statutory administrative action against the procedural fairness requirements of PAJA, on the basis that every administrative action requires strict adherence to each such element of procedural fairness. However, it is clear from the PAJA that the actual procedural fairness requirements depend on the circumstances of each case and are thus determined on a case-by-case basis. Sections 3(4) and 4(4) of the PAJA provide that the requirements of procedural fairness affecting individuals and the public may be dispensed with where, in the circumstances, it is reasonable and justifiable to do so. These provisions recognise that the context or peculiarities of certain administrative actions may excuse them from full or partial compliance with the so-called “essential elements” of procedural fairness. Because justifiable departures are determined on a case-by-case basis, the PAJA Desk Audit analysis does not give guidance on when it would be appropriate to dispense with, as opposed to supplement with, a particular PAJA protection. To assess the justifiability of a departure from the PAJA requirements is a complex exercise that can only be determined with reference to particular facts, and not in the abstract. Therefore it was beyond the scope of the PAJA Audit Project.

Administrators themselves are best placed to identify the circumstances in which a departure from the requirements of section 3 or section 4 of the PAJA would be justifiable. The AJA Desk Audit itself does not in any way reflect the extent to which it is appropriate to dispense with a particular requirement of the PAJA, in the circumstances of the statutory administrative action. Thus, administrators charged with the responsibility of taking particular administrative action will have to develop guidelines for determining when and whether it may be justifiable to depart from one or more essential elements of PAJA procedural fairness.

Ascertaining the justifiability of a departure from the PAJA requirements is a complex exercise that involves, in respect of each statutory administrative action, a contextual analysis, taking into account the factors listed in sections 3(4)(b) or 4(4)(b), as the case may be, of the PAJA. The factors listed in section 4(4)(b) mirror those in section 3(4)(b). While some of the factors listed in those sub-sections relate to a regulatory context rather than a specific set of facts, some of the other factors listed in those sub-sections are more fact-specific and need to be assessed by administrators within the context of a particular case. We set out below the relevant factors, as listed in sections 3(4)(b) and 4(4)(b) of the PAJA:

“(4)(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including—

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need to take, the administrative action;

(iii) the likely effect of the administrative action;

(iv) the urgency of taking the administrative action or the urgency of the matter; and

(v) the need to promote an efficient administration and good governance.”

Notwithstanding the need for a fact-specific and context-based analysis of the justifiability of a departure, it is, we believe, possible to establish some general rules about the appropriateness of the application of PAJA procedural fairness requirements to particular categories of administrative action, or to particular administrative procedures. For example, it is difficult to imagine circumstances where it would not be appropriate to provide a clear statement of the administrative action to the person/s affected thereby. On the other hand, it is easy to imagine circumstances where it may be appropriate not to give notice before taking certain administrative actions (such as in the case of arrest where there is a danger of flight). The development of guiding principles regarding justifiable departures is an area of secondary research that can benefit from the work done during the course of the AJA Desk Audit.

7. HOW TO EDIT AND ADAPT THE PAJA DESK AUDIT

7.1. Structure of the PAJA Desk Audit

The PAJA Desk Audit is arranged in the software programme, Microsoft Excel (“MS-Excel”). Administrators will therefore be required to have MS-Excel software loaded onto their computers, both to access the PAJA Desk Audit, and to capture any changes or additions made by administrators in their use or adaptation of the AJA Desk Audit for their own purposes.

An MS-Excel workbook is made up of several worksheets, which are accessible by clicking on the tabs at the bottom of the screen. In addition to toolbars (not unlike those found in Microsoft-Word) found at the top of a worksheet, the worksheet area comprises a large grid made of up horizontal rows intersecting vertical columns (also known as “cells”). Data is inserted into the cells of each worksheet. Although it is possible to edit and alter the size of rows and columns, all administrators have been provided with electronic copies of the PAJA Desk Audit that have been formatted to fit the data already collated. Accordingly, there is no need to format the MS-Excel spreadsheet. We suggest that when administrators use and adapt the PAJA Desk Audit for their own purposes, they save their own edited or adapted version in a separate workbook (see 7.2.1 below).

We have described below some of the basic functions found in the MS-Excel programme so that administrators are able to undertake the exercise of editing and adapting the PAJA Desk Audit competently and successfully.

7.2. Some basic MS-EXCEL functions

7.2.1. Saving a file

If you wish to save the PAJA Desk Audit under a new file name without losing the version of the PAJA Desk Audit provided to you, simply click on the File menu, click on Save As, following which the Save As dialogue box appears. Type in a new File name and click on the Save button. In this manner administrators will be able to keep the original version of the PAJA Desk Audit provided to you, as well as create a customised audit adapted to suit your purposes by updating, correcting and editing the information contained therein.

7.2.2. Entering and editing data

In order to enter data into a worksheet, click on the cell in which the information you want to edit is contained. Press the delete key on your keyboard and the information will be deleted. Enter the replacement information and press the Enter key to accept the new information into the cell. All contents of a cell are displayed in the Formula Bar. Should you wish not to delete the entire contents of a cell, but simply to edit the existing contents, you can do this by clicking in the Formula Bar and moving your cursor, with your mouse or cursor keys on the keyboard, to that part of the cell contents that requires editing. You can also edit the content of a cell by double-clicking in the cell itself. If you accidentally change the content of a cell and want to revert to the original content, press the Escape key on the keyboard.

7.2.3. Selecting data

If you want to apply any of the formatting options to the contents of a cell or a number of cells (such as bold, italics, underline), move your mouse to the centre of the first cell that you want to format. You will notice that the mouse pointer becomes a white cross. Hold down the left mouse button and drag it over the desired range of cells. The range will appear with a grey background except for the first cell, which will be displayed with a white background. Either using the desired formatting button on the toolbar or clicking on the Format menu, then on Cells, then on Font (or other relevant option), change the contents of the cell/s accordingly.

7.2.4. Copying and Moving Data

It is possible to copy or move data from one cell to another within a spreadsheet or even between sheets. First, select or highlight the data you want to copy or move in the way described above. Then, click on the Copy button on the formatting toolbar (represented by two overlapping pages) if you want to copy the data, or click on the Cut button on the formatting toolbar (represented by a pair of scissors) if you want to move the data. A flashing perforated boundary will appear around the cells you have selected. Next, click on the cell/s where you want the information to be placed and click on the Paste button on the formatting toolbar (represented by a clipboard and a single sheet).

7.2.5. Autofill

Autofill’s function is to fill in a series once an example is given, and is especially useful with numbers. For example, enter the first number e.g. 1 into a cell and press Enter. Enter the second number e.g. 2, in the next cell. Select both these cells so that the software can identify the pattern. Now, move the mouse to the bottom right hand corner of the second cell, and when the mouse (normally represented on the worksheet as a white cross) turns into a black cross, pick up the Fill Handle (ie click down on the left hand mouse button). Drag the mouse, whether across or downwards, and release at the desired cell. There should appear a consecutive string of numbers in the selected cells.

7.2.6. Inserting and deleting Rows and columns

To insert a row click on the first cell below the row where you want the row to be inserted, click on the Insert menu and on Rows. Similarly, to insert a column, click in the cell to the right of where you want the column to be inserted, click on the Insert menu and click on Columns.

In order to delete a row or a column, click on the row or column you want to delete, go into the Edit menu, and select Delete. A dialogue box appears, select either Entire Row or Entire Column and click on OK.

7.2.7. Inserting and renaming a Worksheet

To insert a new worksheet, go into the Insert menu, select Worksheet and a worksheet will be inserted before the active worksheet. To rename a worksheet, double-click on the sheet name, which will become highlighted in black. Type in the new sheet name and press Enter.

7.2.8. Creating a duplicate of a worksheet

To create a duplicate of a worksheet, simply click on the Edit menu and then on Move or Copy Sheet. Highlight the name of the sheet you want a duplicate of, indicate which workbook and before which sheet in that workbook you want the duplicate copied to, and in the check box click “Create a copy”, followed by OK.

[1] The Consortium comprised Edward Nathan (Proprietary) Limited, Mukwevho Mkhabela Adekeye Inc and Professors Iain Currie and Jonathan Klaaren of the University of the Witwatersrand.

[2] For a brief overview of the pre-constitutional administrative law, See O Regan K “Breaking Ground: Some thoughts on the seismic shift in our administrative law.” 2004 SALJ 121(2) 424 – 429.

[3] Constitution of the Republic of South Africa, 1993.

[4] Constitution of the Republic of South Africa, 1996.

[5] See Pharmaceutical Manufacturers’ Association of SA and Another: In re Ex parte President of the RSA and Others 2000 (2) SA 674 (CC).

[6] See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) at para 22 where O’Regan J comments, “The Courts' power to review administrative action no longer flows directly from the common law but from PAJA and the Constitution itself. The groundnorm of administrative law is now to be found … not in the common law itself, but in the principles of our Constitution. The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter. The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the Courts interpret and apply the provisions of PAJA and the Constitution.”

[7] See J. Klaaren “An audit of administrative action and the South African statute book: Research methods and conceptual issues” (2004) 19 South African Public Law at 531-2.

[9] I Currie and J Klaaren (SiberInk, 2001).

[10] Butterworths LexisNexis is an electronic database of, among other things, updated national and provincial primary legislation and also some secondary legislation. The legislation in the database has been arranged into sectors e.g. transport, criminal, which we used for purposes of the PAJA Desk Audit.

[11] Note: for the Excel workbook of selected secondary legislation, Column B deals with the Sector.

[12] Note: for the Excel workbook of selected secondary legislation, Column C deals with the Department. Note further that the Excel workbook for the City of Jhb by-laws does not have a ‘Department’ column.

[13] Note: for the Excel workbook of selected secondary legislation, Columns D and E deal with the Act and Regulation titles.

[14] Note: for the Excel workbook of selected secondary legislation, Columns F and G deal not with the Act number and year, but with the Regulation Notice number, and the Government Gazette number.