The municipality authorises the development of a nightclub in your neighbourhood. You and your neighbours are concerned about this and want to challenge the municipality’s decision. Such a decision by a municipality, or another organ of state, has ‘direct and immediate consequences for individuals or groups of individuals’ and amounts to administrative action. When administrative action adversely affects the rights of an individual then the administrative action may be judicially challenged on 3 grounds: (1) lawfulness; (2) procedural fairness; and (3) reasonableness.
The Constitutional Court in Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 held that administrators (i.e. municipalities or other organs of state) may exercise no power and perform no function beyond that conferred upon the by law. Lawfulness is divided into 3 categories:
When an administrator lacks authority, it means that there is nothing in the law that allows the administrator (in this case, the municipality) to take that decision. There may be other reasons why an administrator does not have authority to make a decision e.g. there was unlawful delegation of decision-making power; the administrator cited the wrong legislation as the basis of their administrative action; or the administrator acted beyond the scope of the power granted to them by the empowering provision.
Jurisdiction refers to an administrator’s entitlement to act. All the prerequisites of the empowering legislation must be met before the administrator is entitled to make a decision. Absent these prerequisites, the administrator would be acting unlawfully. An example would be where the legislation only empowers a Director General to make a decision when a report from a building inspector concluding they are satisfied with the plans submitted. When the Director General makes a decision without having such a report, they are acting without jurisdiction.
(iii) Abuse of discretion –
This is when the administrator is authorised to act and is acting within their jurisdiction, but their discretion is being abused. An administrator can abuse their discretion by: limit themselves to rigidly following a practice guideline; acting for an ulterior motive or in bad faith; failing to act; failing to consider relevant considerations or for taking irrelevant considerations into account; for acting capriciously; and lastly, for failing to apply their mind.
In our case where the municipality authorises the development of a nightclub in a quiet neighbourhood, the decision-maker may have abused their discretion by failing to consider that the area is zoned “residential” and not for “entertainment”.
(2) PROCEDURAL FAIRNESS
Section 3(1) of PAJA provides that administrative action must be procedurally fair. What is procedurally fair depends on the circumstances in each case according to s 3(2)(a) of PAJA. Generally, an administrator is required to provide: (i) adequate notice of the nature and purpose of the proposed administrative action; (ii) provide persons who would be affected a reasonable opportunity to express their concerns; (iii) the administrator should provide a clear statement of the administrative action; (iv) adequate notice of any right of review or internal appeal should be given; and lastly (v) adequate notice of the right to request reasons should also be given. The ultimate question would be whether a person’s right to be heard has adversely been affected by the procedure the administrator followed.
In our case, if the nightclub construction begins without the municipality having informed the community of its decision, then its decision would be procedurally unfair.
The court in Minister of Health NO v New Clicks SA (Pty) Ltd 2006 (2) SA 311 (CC) held that reasonableness entails rationality and proportionality. A decision must thus be rational. Proportionality requires that: (1) the decision must have a legitimate goal; (2) the decision must be objectively capable of achieving that goal; (3) there must be no ‘less harmful/restrictive means to the same goal; and (4) the decision’s adverse side-effects must not be out of all proportion to its benefits.
What is reasonable may differ on different facts. An example of an unreasonable decision would be where there is a faulty electrical supply in one house and the municipality decides to disable the entire neighbourhood’s electricity for 3 days.
The remedies available are set out in s 8 of PAJA. The default remedy when reviewing administrative action is setting aside the decision and referring it back to the administrator to decide upon it again, but this time acting within their authority, considering all the relevant information, acting procedurally fairly and reasonably. Only in limited circumstances would the court actually step into the shoes of the administrator and substitute its own decision for that of the administrator.
In our case, the municipality would have to decide again on whether to authorise the development of a nightclub in a quiet neighbourhood, but it must consider how the area has been zoned, it must give people the chance to express their concerns, they must ultimately take a reasonable decision.
Challenging administrative action legally is open to any person whose rights have adversely been affected by administrative action. Should you wish to know more, contact our offices.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)