# Promotion of Administrative Justice Act, 2000/2003-02-06

This is the text of the Promotion of Administrative Justice Act, 2000, as it was on 6 February 2003, after it was amended by the Promotion of Administrative Justice Amendment Act, 2002, which came into force when it was published on that date.
(English text signed by the President.) (Assented to 3 February 2000.)
Act
To give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996; and to provide for matters incidental thereto.
as amended by
Judicial Matters Amendment Act, No. 42 of 2001 Promotion of Administrative Justice Amendment Act, No. 53 of 2002
Preamble
Whereas section 33(1) and (2) of the Constitution provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair and that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons;
and whereas section 33(3) of the Constitution requires national legislation to be enacted to give effect to those rights, and to—
* provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
* impose a duty on the state to give effect to those rights; and
* promote an efficient administration;
and whereas item 23 of Schedule 6 to the Constitution provides that the national legislation envisaged in section 33(3) must be enacted within three years of the date on which the Constitution took effect;
and in order to—
* promote an efficient administration and good governance; and
* create a culture of accountability, openness and transparency in the public administration or in the exercise of a public power or the performance of a public function, by giving effect to the right to just administrative action,
Be it therefore enacted by the Parliament of the Republic of South Africa, as follows:―
Definitions
1. In this Act, unless the context indicates otherwise―
(i)
(a)
(i)
(ii)
(b)
which adversely affects the rights of any person and which has a direct, external legal effect, but does not include—
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
(gg)
(hh)
(ii)
(ii)
(iii)
(iv)
(a)
(b)
(i)
(ii)
within whose area of jurisdiction the administrative action occurred or the administrator has his or her or its principal place of administration or the party whose rights have been affected is domiciled or ordinarily resident or the adverse effect of the administrative action was, is or will be experienced;
(v)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
and a reference to a failure to take a decision must be construed accordingly;
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
Application of Act
2. (1) The Minister may, by notice in the Gazette—
(a)
(b)
(2) Any exemption or permission granted in terms of subsection (1) must, before publication in the Gazette, be approved by Parliament.
Procedurally fair administrative action affecting any person
3. (1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the circumstances of each case.
(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)—
(i)
(ii)
(iii)
(iv)
(v)
(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity to—
(a)
(b)
(c)
(4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from any of the requirements referred to in subsection (2).
(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)
(ii)
(iii)
(iv)
(v)
(5) Where an administrator is empowered by any empowering provision to follow a procedure which is fair but different from the provisions of subsection (2), the administrator may act in accordance with that different procedure.
Administrative action affecting public
4. (1) 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—
(a)
(b)
(c)
(d)
(e)
(2) If an administrator decides to hold a public inquiry—
(a)
(b)
(i)
(aa)
(bb)
(ii)
(iii)
(iv)
(aa)
(bb)
(3) If an administrator decides to follow a notice and comment procedure, the administrator must—
(a)
(b)
(c)
(d)
(4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from the requirements referred to in subsections (1)(a) to (e), (2) and (3).
(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)
(ii)
(iii)
(iv)
(v)
Reasons for administrative action
5. (1) Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action.
(2) The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.
(3) If an administrator fails to furnish adequate reasons for an administrative action, it must, subject to subsection (4) and in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the administrative action was taken without good reason.
(4) (a) An administrator may depart from the requirement to furnish adequate reasons if it is reasonable and justifiable in the circumstances, and must forthwith inform the person making the request of such departure.
(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)
(ii)
(iii)
(iv)
(v)
(vi)
(5) Where an administrator is empowered by any empowering provision to follow a procedure which is fair but different from the provisions of subsection (2), the administrator may act in accordance with that different procedure.
(6) (a) In order to promote an efficient administration, the Minister may, at the request of an administrator, by notice in the Gazette publish a list specifying any administrative action or a group or class of administrative actions in respect of which the administrator concerned will automatically furnish reasons to a person whose rights are adversely affected by such actions, without such person having to request reasons in terms of this section.
(b) The Minister must, within 14 days after the receipt of a request referred to in paragraph (a) and at the cost of the relevant administrator, publish such list, as contemplated in that paragraph.
Judicial review of administrative action
6. (1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administrative action if—
(a)
(i)
(ii)
(iii)
(b)
(c)
(d)
(e)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(f)
(i)
(ii)
(aa)
(bb)
(cc)
(dd)
(g)
(h)
(i)
(3) If any person relies on the ground of review referred to in subsection (2)(g), he or she may in respect of a failure to take a decision, where—
(a)
(i)
(ii)
(iii)
institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision; or
(b)
(i)
(ii)
(iii)
institute proceedings in a court or tribunal for judicial review of the failure to take the decision within that period on the ground that the administrator has a duty to take the decision notwithstanding the expiration of that period.
Procedure for judicial review
7. (1) Any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date—
(a)
(b)
(2) (a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.
(3) The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must within one year after the date of commencement of this Act, make and implement rules of procedure for judicial review.
(4) Before the implementation of the rules of procedure referred to in subsection (3), all proceedings for judicial review must be instituted in a High Court or the Constitutional Court.
(5) Any rule made under subsection (3) must, before publication in the Gazette, be approved by Parliament.
Remedies in proceedings for judicial review
8. (1) The court or tribunal, in proceedings for judicial review in terms of section 6(1), may grant any order that is just and equitable, including orders—
(a)
(i)
(ii)
(b)
(c)
(i)
(ii)
(aa)
(bb)
(d)
(e)
(f)
(2) The court or tribunal, in proceedings for judicial review in terms of section 6(3), may grant any order that is just and equitable, including orders—
(a)
(b)
(c)
(d)
Variation of time
9. (1) The period of—
(a)
(b)
by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person or administrator concerned.
(2) The court or tribunal may grant an application in terms of subsection (1) where the interests of justice so require.
Designation and training of presiding officers
9A. (1) (a) The head of an administrative region defined in section 1 of the Magistrates' Courts Act, 1944 (Act 32 of 1944), must, subject to subsection (2), designate in writing any magistrate or additional magistrate as a presiding officer of the Magistrate's Court designated by the Minister in terms of section 1 of this Act.
(b) A presiding officer must perform the functions and duties and exercise the powers assigned to or conferred on him or her under this Act or any other law.
(2) Only a magistrate or additional magistrate who has completed a training course—
(a)
(a)
and whose name has been included on the list contemplated in subsection (4)(a), may be designated in terms of subsection (1).
(3) The heads of administrative regions must—
(a)
(b)
(4) The Director-General: Justice and Constitutional Development must compile and keep a list of every magistrate or additional magistrate who has—
(a)
(b)
(5) The Chief Justice must, in consultation with the Judicial Service Commission and the Magistrates Commission, develop the content of training courses with the view to building a dedicated and experienced pool of trained and specialised presiding officers for purposes of presiding in court proceedings as contemplated in this Act.
(6) The Chief Justice must, in consultation with the Judicial Service Commission, the Magistrates Commission and the Minister, implement the training courses contemplated in subsection (5).
(7) The Minister must table a report in Parliament, as prescribed, relating to the content and implementation of the training courses referred to in subsections (5) and (6).
Regulations
10. (1) The Minister must make regulations relating to—
(a)
(b)
(c)
(d)
(e)
(2) The Minister may make regulations relating to—
(a)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(b)
(c)
contents of this Act and the provisions of the Constitution relating to administrative action;
(d)
(e)
(i)
(ii)
(3) This section may not be construed as empowering the Minister to make regulations, without prior consultation with the Public Service Commission, regarding any matter which may be regulated by the Public Service Commission under the Constitution or any other law.
(4) Any regulation—
(a)
(b)
(5) Any regulation made under subsections (1) and (2) which may result in financial expenditure for the State must be made in consultation with the Minister of Finance.
(6) The regulations contemplated in subsection (1)(e) must be approved by Cabinet and must be made within two years after the commencement of this Act.
Short title and commencement
11. This Act is called the Promotion of Administrative Justice Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette.