In search of a definition for administrative action

Abstract

AbstactThis article attempts to offer an analysis of what an administrative act is. The definition of ‘administrative action’ in the Promotion of Administrative Justice Act 3 of 2000 (PAJA) is seriously flawed. The main deficit of the definition is that it recognises only administrative acts that adversely affect the right to administrative justice as administrative action. The definition seems to conflate the infringement of administrative justice by an administrative act, which can be challenged as unconstitutional in terms of section 33 of the Constitution, with the measure itself. The definition further elevates the lack of taking administrative action (a non-act) to the status of a properly taken administrative act, which is not logical either. Another deficit is that it fails to classify administrative action as a specific form of executive power. The PAJA definition of administrative action was partly taken over from German administrative law but the difficulty is that only one of five elements was inserted in the definition, which makes it fall flat. Pfaff and Schneider previously compared the PAJA definition and the German definitions of an administrative act, but focused almost exclusively on the element of the ‘direct, external effect’. They did not discuss the other four constitutive elements of an administrative act in any detail and what they said about the ‘direct, external legal effect’ was so confusing that it caused much misunderstanding in administrative law circles in South Africa. Since the PAJA definition is in urgent need of correction in the interest of justice and legal certainty, it might be worthwhile to have a second look at the German definition because it is as concise as it is simple.