UNISA | Administrative Law Distribution of Building Materials & Administrative Action
Administrative Law
Does the Distribution of Building Materials by the
Department of Human Settlements Constitute Administrative Action?
Question
Does the distribution of building materials by the Department of Human Settlements amount
to administrative action? With reference to relevant legislation, explain.
1. Introduction
To determine whether the distribution of building materials by the Department of Human Set-
tlements constitutes administrative action, one must engage carefully with the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), the Constitution of the Republic of
South Africa, 1996, and relevant case law. The question calls for a structured legal analysis
of the concept of administrative action and how it applies to the factual scenario at hand.
2. The Constitutional Foundation
2.1 Section 33 of the Constitution
The right to just administrative action is entrenched in section 33 of the Constitution, which
provides that:
Key Distinction
Everyone has the right to administrative action that is lawful, reasonable and procedu-
rally fair. Everyone whose rights have been adversely affected by administrative action
has the right to be given written reasons (Constitution of the Republic of South Africa,
1996, s 33).
This provision gives effect to the constitutional commitment to accountable and transpar-
ent governance. It also mandated the legislature to enact national legislation to give effect to
these rights, which resulted in PAJA (Currie & De Waal, 2013).
Page 1 of 10
, UNISA | Administrative Law Distribution of Building Materials & Administrative Action
3. The Definition of Administrative Action Under PAJA
3.1 Section 1 of PAJA
The definition of administrative action under section 1 of PAJA is detailed and contains
several cumulative requirements. Administrative action means:
“any decision taken, or any failure to take a decision, by (a) an organ of state,
when (i) exercising a power in terms of the Constitution or a provincial constitu-
tion; or (ii) exercising a public power or performing a public function in terms of
any legislation; or (b) a natural or juristic person, other than an organ of state,
when exercising a public power or performing a public function in terms of an em-
powering provision, which adversely affects the rights of any person and which has
a direct, external legal effect” (PAJA, 2000, s 1).
3.2 The Seven Requirements Unpacked
Based on this definition, the following elements must all be present for a decision or action to
qualify as administrative action:
Explanation
Element
There must be a decision or failure to decide
1. A decision
The actor must be an organ of state or person exercising
2. By an organ of
public power
state or empowered
person
The power exercised must be public in nature, not private
3. Exercising a
public power or per-
forming a public
function
There must be an empowering provision authorising the
4. In terms of em-
action
powering legislation
Page 2 of 10
Administrative Law
Does the Distribution of Building Materials by the
Department of Human Settlements Constitute Administrative Action?
Question
Does the distribution of building materials by the Department of Human Settlements amount
to administrative action? With reference to relevant legislation, explain.
1. Introduction
To determine whether the distribution of building materials by the Department of Human Set-
tlements constitutes administrative action, one must engage carefully with the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), the Constitution of the Republic of
South Africa, 1996, and relevant case law. The question calls for a structured legal analysis
of the concept of administrative action and how it applies to the factual scenario at hand.
2. The Constitutional Foundation
2.1 Section 33 of the Constitution
The right to just administrative action is entrenched in section 33 of the Constitution, which
provides that:
Key Distinction
Everyone has the right to administrative action that is lawful, reasonable and procedu-
rally fair. Everyone whose rights have been adversely affected by administrative action
has the right to be given written reasons (Constitution of the Republic of South Africa,
1996, s 33).
This provision gives effect to the constitutional commitment to accountable and transpar-
ent governance. It also mandated the legislature to enact national legislation to give effect to
these rights, which resulted in PAJA (Currie & De Waal, 2013).
Page 1 of 10
, UNISA | Administrative Law Distribution of Building Materials & Administrative Action
3. The Definition of Administrative Action Under PAJA
3.1 Section 1 of PAJA
The definition of administrative action under section 1 of PAJA is detailed and contains
several cumulative requirements. Administrative action means:
“any decision taken, or any failure to take a decision, by (a) an organ of state,
when (i) exercising a power in terms of the Constitution or a provincial constitu-
tion; or (ii) exercising a public power or performing a public function in terms of
any legislation; or (b) a natural or juristic person, other than an organ of state,
when exercising a public power or performing a public function in terms of an em-
powering provision, which adversely affects the rights of any person and which has
a direct, external legal effect” (PAJA, 2000, s 1).
3.2 The Seven Requirements Unpacked
Based on this definition, the following elements must all be present for a decision or action to
qualify as administrative action:
Explanation
Element
There must be a decision or failure to decide
1. A decision
The actor must be an organ of state or person exercising
2. By an organ of
public power
state or empowered
person
The power exercised must be public in nature, not private
3. Exercising a
public power or per-
forming a public
function
There must be an empowering provision authorising the
4. In terms of em-
action
powering legislation
Page 2 of 10
