Reunifying administrative law: The Promotion of Administrative Justice Act as a source of requirements for the validity of administrative action

The scheme of s 33 of the Constitution of the Republic of South Africa, 1996 has been undermined by the courts’ treating the principle of legality, and not solely the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), as a basis for the review of administrative action. This article argues that the key to the reunification of administrative law is to give effect to the proposition that PAJA, including s 6(2), reflects the requirements for the validity of administrative action. The logical consequence of this proposition is that where administrative action is the target, classical collateral challenge and self-review ought to be adjudicated based on PAJA’s grounds of invalidity. The same is true of internal review by a functionary or tribunal where the enabling legislation does not provide for more specific grounds of review. In the case of self-review and internal review, this direct approach would, however, require certain rulings of the Constitutional Court to be revisited. Failing that, a more indirect and thus less satisfactory solution would be for PAJA’s review grounds to be applied under the umbrella of legality review.