, 1. Does the distribution of building materials by the Department of Human Settlements amount
to administrative action? With reference to relevant legislation. Explain. (20 marks)
Introduction
The devastating fires in Du Noon, Du Noon, have left thousands of residents homeless and
dependent on state intervention for relief and rebuilding. In response, the City of Cape Town
Council and the Department of Human Settlements have implemented emergency measures,
including the distribution of building materials. The key legal issue is whether the distribution of
these materials constitutes administrative action under South African law. This requires an analysis
of section 33 of the Constitution of the Republic of South Africa, 1996, the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), and relevant provisions of the Disaster Management
Act 57 of 2002.
1. Legal Framework Governing Administrative Action
1.1 Constitutional Foundation
Section 33(1) of the Constitution provides that everyone has the right to administrative action that
is lawful, reasonable, and procedurally fair (Constitution, 1996). Section 33(3) required national
legislation to give effect to this right, which resulted in the enactment of PAJA. Therefore, whether
the distribution of building materials amounts to administrative action must be assessed in terms
of PAJA.
1.2 Definition of Administrative Action under PAJA
Section 1 of PAJA defines administrative action as any decision taken, or failure to take a decision,
by:
An organ of state exercising a public power or performing a public function in terms of
legislation,
Which adversely affects rights,
And which has a direct, external legal effect (PAJA, 2000).
To determine whether the Department’s conduct qualifies, each element of this definition must be
examined.
2. Application to the Distribution of Building Materials
2.1 Decision Taken by an Organ of State
The Department of Human Settlements is an organ of state as defined in section 239 of the
Constitution (Constitution, 1996). Its decision to distribute building materials is taken in the
exercise of public power under the Disaster Management Act. Therefore, the first requirement of
PAJA is satisfied.
In President of the Republic of South Africa v SARFU, the Constitutional Court confirmed that
administrative action generally involves the exercise of public power by an organ of state. The
Department’s actions fall within this category.
to administrative action? With reference to relevant legislation. Explain. (20 marks)
Introduction
The devastating fires in Du Noon, Du Noon, have left thousands of residents homeless and
dependent on state intervention for relief and rebuilding. In response, the City of Cape Town
Council and the Department of Human Settlements have implemented emergency measures,
including the distribution of building materials. The key legal issue is whether the distribution of
these materials constitutes administrative action under South African law. This requires an analysis
of section 33 of the Constitution of the Republic of South Africa, 1996, the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), and relevant provisions of the Disaster Management
Act 57 of 2002.
1. Legal Framework Governing Administrative Action
1.1 Constitutional Foundation
Section 33(1) of the Constitution provides that everyone has the right to administrative action that
is lawful, reasonable, and procedurally fair (Constitution, 1996). Section 33(3) required national
legislation to give effect to this right, which resulted in the enactment of PAJA. Therefore, whether
the distribution of building materials amounts to administrative action must be assessed in terms
of PAJA.
1.2 Definition of Administrative Action under PAJA
Section 1 of PAJA defines administrative action as any decision taken, or failure to take a decision,
by:
An organ of state exercising a public power or performing a public function in terms of
legislation,
Which adversely affects rights,
And which has a direct, external legal effect (PAJA, 2000).
To determine whether the Department’s conduct qualifies, each element of this definition must be
examined.
2. Application to the Distribution of Building Materials
2.1 Decision Taken by an Organ of State
The Department of Human Settlements is an organ of state as defined in section 239 of the
Constitution (Constitution, 1996). Its decision to distribute building materials is taken in the
exercise of public power under the Disaster Management Act. Therefore, the first requirement of
PAJA is satisfied.
In President of the Republic of South Africa v SARFU, the Constitutional Court confirmed that
administrative action generally involves the exercise of public power by an organ of state. The
Department’s actions fall within this category.
