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Wessels v Minister for Justice and Constitutional Development and Others (594/09) [2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP) (2 June 2009)

80 Reportability
Administrative Law
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Brief Summary

Judicial Review — Appointment of magistrates — Application for review of minister's decision to appoint second respondent as Regional Court President — Applicant contending that decision constitutes administrative action under PAJA and that no reasons were provided — Minister asserting appointment is an exercise of executive power not subject to review — Court held that the appointment is indeed administrative action and the minister is required to furnish reasons for the decision, thus allowing the review application to proceed.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings were an opposed motion application for judicial review in the North Gauteng High Court, Pretoria, concerning the lawfulness of the Minister for Justice and Constitutional Development’s decision to appoint a Regional Court President for the Limpopo Province.


The applicant was Jacoba Hendrina Wessels, one of the candidates found appointable by the Magistrates’ Commission. The first respondent was the Minister for Justice and Constitutional Development (the appointing authority under the governing legislation). The second respondent, A Alberts, was the candidate ultimately appointed. The third respondent was the Magistrates’ Commission. The Association of Regional Magistrates of South Africa (ARMSA) participated as amicus curiae, with the parties’ consent, to address legal contentions raised by the Minister concerning the nature and reviewability of the appointment decision.


Procedurally, the matter was initially enrolled in the opposed motion court for the week of 30 March 2009. On 30 March 2009 the Minister filed a substantive application for postponement, which was opposed and refused with costs on 1 April 2009. After a stand-down to enable the Minister to take instructions, the Minister advanced a legal position that the appointment of a regional magistrate (including a Regional Court President) was an exercise of executive power rather than administrative action, and thus not reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Because of the asserted legal controversy, a full court was convened.


The dispute concerned whether the Minister’s appointment decision constituted administrative action under PAJA, whether the applicant was entitled to written reasons for the decision, and whether the failure to provide reasons justified the setting aside of the appointment and remittal for reconsideration.


Material Facts


The Magistrates’ Commission, established under section 2 of the Magistrates’ Act 90 of 1993, advertised for and processed applications to fill the vacancy of Regional Court President: Limpopo. The Commission conducted interviews and found four candidates appointable, including the applicant and the second respondent. The Commission’s recommendations relevant to the appointment were dated 12 August 2008.


On 18 September 2008 the Minister appointed the second respondent to the vacant position. The applicant thereafter sought written reasons for the appointment decision. On 23 September 2008 the applicant requested reasons in terms of section 5(1) of PAJA, and when none were forthcoming, a further request was sent on 30 October 2008. The judgment records that no acknowledgement of receipt was received and no reasons were furnished.


The applicant launched the review application on 8 January 2009. The respondents delivered a notice of intention to defend on 30 January 2009. The second and third respondents later withdrew their opposition on 4 February 2009. The Minister did not file an answering affidavit, and instead pursued a postponement and then advanced primarily legal arguments to resist review (including that the decision was executive in nature and not administrative action).


A factual dispute about comparative merit between candidates was not determined by the court; the court treated the critical facts for disposition as the existence of the appointment, the requests for reasons, and the failure to furnish any reasons or a substantive answering affidavit explaining the decision.


Legal Issues


The central legal question was whether the Minister’s decision to appoint the second respondent as Regional Court President: Limpopo constituted “administrative action” under section 1 of PAJA, and accordingly whether it was reviewable under PAJA.


Closely linked to that was whether the decision adversely affected the applicant’s rights (as required by the statutory definition), and how that requirement should be understood, given interpretive debates about whether “affects rights” means deprivation of existing rights or also includes determinations impacting legal positions or legitimate expectations.


A further legal question was whether, if the decision was administrative action, the Minister had a duty to provide written reasons upon request under section 5 of PAJA, and what the consequences were of a complete failure to provide reasons—particularly the operation of the presumption in section 5(3) that, absent proof to the contrary, the administrative action was taken without good reason.


The dispute was predominantly one of law (statutory interpretation of PAJA and the Constitution, and classification of the decision as executive or administrative), with an application-of-law-to-fact component (whether the appointment decision had the requisite capacity or effect on rights). To the extent that the applicant advanced merits-based contentions, the court treated those as not requiring determination given the decisive consequence of the failure to provide reasons.


Court’s Reasoning


The court approached the matter through the constitutional and statutory framework of section 33 of the Constitution and PAJA, emphasising that PAJA is the national legislation enacted to give effect to the right to lawful, reasonable and procedurally fair administrative action, including the right to written reasons when rights have been adversely affected by administrative action.


In addressing the Minister’s contention that no right of the applicant was adversely affected, the court relied on the interpretive guidance in Grey’s Marine Hout Bay (Pty) Ltd & Others v Minister of Public Works & Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA). The court rejected a literal and narrow reading of PAJA’s “adversely affects rights” requirement as confined to deprivation of existing rights. It accepted that PAJA’s definition must be read to cover decisions that have the capacity to affect legal rights, aligning with the “determination” approach discussed in academic commentary and supported by the Constitutional Court’s reasoning in Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC). On this basis, the court held that the applicant’s rights were “determined” adversely when another candidate was appointed, satisfying the definitional requirement for administrative action.


The court then examined whether the Minister’s act was excluded from PAJA because it was an executive power. It analysed the “palisade” of exclusions within PAJA’s definition of administrative action and reasoned that the legislative design was deliberate. The judgment noted that PAJA excludes certain presidential executive powers but does not exclude the presidential power in section 84(2)(e) of the Constitution (appointments required by the Constitution or legislation other than as head of the National Executive), which the court treated as consistent with the view that certain appointment decisions can be administrative action. The court further placed weight on the fact that PAJA expressly excludes decisions of the Judicial Service Commission relating to the nomination, selection, or appointment of judicial officers, but does not similarly exclude the process involving the Magistrates’ Commission or the Minister’s appointment of magistrates. This omission was taken as supporting the conclusion that Parliament intended magistrates’ appointments to fall within PAJA’s ambit.


The court considered the Minister’s reliance on Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC), where the Constitutional Court referred to the Magistrates’ Commission as a check on the exercise of executive power. The court held that this did not decide the PAJA classification question; the Constitutional Court in Van Rooyen was not called upon to determine whether the appointment of a magistrate is administrative rather than executive in nature. The judgment also underscored the established principle that classification turns on the function, not the identity of the functionary, relying on President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) and Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC).


Having concluded that the appointment decision was administrative action, the court turned to section 5 of PAJA. It found that the applicant had timeously requested reasons and that the Minister (including the responsible Minister at the time and successors) failed to provide any reasons, failed to justify that failure, and failed to file an answering affidavit. The court rejected the suggestion that the Magistrates’ Commission’s recommendation could simply stand in as the Minister’s reasons, describing that contention as lacking substance (and noting it was not persisted with in oral argument). On the facts before it, the court held that the Minister’s failure triggered the section 5(3) presumption that the administrative action was taken without good reason, and that this presumption remained undisturbed because the Minister provided no contrary proof.


The court briefly addressed submissions on legality and accountability, agreeing in principle that the exercise of public power is constrained by legality and accountability and that these principles support a duty to provide reasons. It cited President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) on legality, Rail Commuters Action Group and Others v Transnet Ltd t/a Metro Rail and Others [2004] ZACC 20; 2005 (2) SA 359 (CC) and AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) on accountability. However, the court did not develop this line of reasoning at length because it had already found the decision reviewable and invalid under PAJA due to the failure to provide reasons and the operation of section 5(3).


The Minister also contended that the applicant’s case was an appeal rather than a review and that the statutory grounds of review were not established. The court rejected the “appeal not review” characterisation, noting that the applicant sought remittal rather than substitution. On the review grounds, the court reasoned that had reasons been given, it could have evaluated the various PAJA section 6(2) grounds invoked. Because the Minister chose not to provide reasons or evidence, the section 5(3) presumption that the decision was taken without good reason remained, and “good reason” was treated as inherent to the grounds relied upon.


Finally, as to remedy, the applicant sought directions on remittal to ensure urgency. The court held that courts should be hesitant to issue directives that may appear to constrain the Minister’s discretion, but recorded that the matter had been delayed to the prejudice of the parties and the regional magistracy, and that the Minister should appreciate that the matter required urgent attention.


Outcome and Relief


The court reviewed and set aside the Minister’s decision to appoint the second respondent as Regional Court President for Limpopo.


The court referred the matter back to the Minister to consider anew the Magistrates’ Commission’s recommendations dated 12 August 2008.


The court ordered the first respondent (the Minister) to pay the costs of the application.


Cases Cited


Grey's Marine Hout Bay (Pty) Ltd & Others v Minister of Public Works & Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA)


Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC)


Minister of Health & Another NO v New Clicks South Africa (Pty) Ltd & Others 2006 (2) SA 311 (CC)


Minister of Defence and Others v Dunn 2007 (6) SA 52 (SCA)


Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC)


President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC)


Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC)


Rail Commuters Action Group and Others v Transnet Ltd t/a Metro Rail and Others [2004] ZACC 20; 2005 (2) SA 359 (CC)


AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC)


Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)


Legislation Cited


Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)


Promotion of Administrative Justice Act 3 of 2000


Magistrates Act 90 of 1993


Magistrates’ Courts Act 32 of 1944


Special Investigating Units and Special Tribunals Act 74 of 1996


Promotion of Access to Information Act 2 of 2000


Rules of Court Cited


Uniform Rules of Court, Rule 16A


Held


The court held that the Minister’s appointment of the second respondent as Regional Court President was administrative action for purposes of PAJA and was therefore reviewable.


The court held that the applicant’s rights were sufficiently and adversely affected in the sense required by PAJA, adopting an interpretation aligned with the view that administrative action includes decisions with the capacity to affect or determine legal rights, rather than only those that deprive an existing right.


The court held that the Minister’s complete failure to furnish reasons upon request engaged section 5(3) of PAJA, giving rise to a presumption that the administrative action was taken without good reason, and that this presumption was not rebutted due to the absence of reasons or an answering affidavit.


On that basis, the appointment decision was set aside and remitted to the Minister for reconsideration, with costs ordered against the Minister.


LEGAL PRINCIPLES


A ministerial decision made under statutory power to appoint a magistrate (including a Regional Court President) may constitute administrative action under PAJA and is not automatically immunised from review on the basis that the decision-maker is a member of the executive; classification depends on the nature of the function performed, not merely the office of the functionary.


The requirement in PAJA’s definition of administrative action that a decision must “adversely affect rights” is not confined to decisions that deprive a person of an existing right; it encompasses decisions that have the capacity to affect or determine a person’s legal position in a manner contemplated by the statute and constitutional context.


Where reasons for administrative action are properly requested under section 5 of PAJA and no reasons are furnished, section 5(3) creates a presumption (absent proof to the contrary) that the action was taken without good reason; if unrebutted, this can found review and setting aside of the decision.


Even where public power is characterised as executive in a broad constitutional sense, the exercise of public power remains constrained by legality and accountability, which support the expectation that decision-makers provide reasons when required by the applicable legal framework.

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[2009] ZAGPPHC 81
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Wessels v Minister for Justice and Constitutional Development and Others (594/09) [2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP) (2 June 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH GAUTENG HIGH COURT, PRETORIA
)
CASE
NO: 594/09
DATE:
2/6/2009
REPORTABLE
IN
THE MATTER BETWEEN
JACOBA
HENDRINA WESSELS APPLICANT
AND
MINISTER FOR JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT 1
ST
RESPONDENT
A ALBERTS 2
ND
RESPONDENT
THE MAGISTRATE'S
COMMISSION 3
RD
RESPONDENT
AND
ASSOCIATION OF REGIONAL
MAGISTRATES
OF
SOUTH AFRICA (ARMSA)
AMICUS CURIAE
JUDGMENT
VAN
DER MERWE, J
INTRODUCTION
This matter was enrolled on the opposed motion court roll for the
week of 30 March 2009. 0n 30 March 2009 the first

respondent filed a substantive application for postponement. In
opposition to this application for postponement, an opposing
answering affidavit was filed on 31 March 2009. The application
for postponement was heard on 31 March 2009. It was

refused with costs on 1 April 2009. The matter then stood down
until 3 April for counsel to obtain instructions from
the first
respondent.
0n 3 April counsel for the first respondent submitted that the
appointment of a magistrate,
in casu
a regional court
magistrate, is an exercise of an executive power and not an
administrative action and is therefore not subject
to review. It was
also submitted that as the Magistrates' Commission's report to the
first respondent constitutes reasons,
it was not required of the
first respondent to furnish any reasons for his/her decision. The
court was also informed that there
are conflicting decisions
concerning the question of the exercise of an executive power versus
the taking of administrative action
in circumstances such as these.
It was therefore arranged that the deputy judge-president be
approached to constitute a full
court on a preferential date for the
hearing of the application. 0nce that was agreed, first respondent's
counsel undertook to
set out his main contentions in writing, which
was done on 6 April 2009 as per the letter attached to the
applicant's heads
of argument.
HISTORICAL BACKGROUND
As a result of advertisements inviting applications for the filling
of the vacant position of Regional Court President: Limpopo,
the
Magistrates' Commission, established in terms of section 2 of the
Magistrates' Act, 90 of 1993 ("the
Magistrates' Act&quot
;),
conducted interviews with candidates. The following candidates were
found by the Commission appointable as Regional Court President:

Limpopo:
1. the applicant;
2. Mr T A Maumela;
3. the second respondent;
4. Mr D V D Mathebula.
Section 10
of the
Magistrates' Act provides
that the minister shall,
after consultation with the Magistrates' Commission, appoint
magistrates in respect of lower courts under
and subject to the
Magistrates' Courts Act, no 32 of 1944
.
0n 18 September 2008 the first respondent appointed the second
respondent to the vacant position.
0n 23 September 2008 the applicant faxed a written request for
reasons in terms of section 5(1) of the Promotion of Administrative

Justice Act, no 3 of 2000 ("PAJA") to first respondent,
requesting reasons for the decision to appoint the second respondent.

No acknowledgment of receipt of the letter was received. As no
reasons were furnished, the applicant's attorney again
on 30 0ctober
2008 requested reasons for the first respondent's decision. Again no
acknowledgment of receipt of the letter
nor any reasons were
received.
The present application for the review of the minister's decision
was brought on 8 January 2009. The three respondents filed
a
notice of intention to defend on 30 January 2009. The second
and third respondents withdrew their opposition on 4 February

2009. No opposing affidavit was filed by the first respondent
which led to the application for postponement referred to above.
THE RELIEF SOUGHT
In terms of the notice of motion the applicant applies for the
following relief:
"1. The review and setting aside of the decision of the first
respondent to appoint the second respondent as the Regional
Court
President for Limpopo province;
2. referring back the matter to the first respondent to enable the
first respondent to anew consider the recommendations of the
third
respondent dated 12 August 2008, with such directions, if any,
as the above honourable court deem fit;
3. directing that the costs of this application be paid jointly and
severally by those respondents that oppose the relief sought
herein."
This relief is sought on two bases ie:
1. on the basis that no reasons were furnished. For this basis the
applicant relies on the provisions of section 5(3) of PAJA;
2. on the basis that when one has regard to the merits of the
application, the appointment falls to be set aside.
THE FIRST RESPONDENT'S DEFENCE
As stated in the introduction above, first respondent's counsel made
certain submissions regarding possible defences against the

application. It was set out as follows in para 18 of the
founding affidavit for the postponement:
"Furthermore,
and on a point of law
, it needs be
mentioned that the first respondent is of the view that the
appointment of magistrates constitutes an executive decision,
as
opposed to an administrative decision, and that this aspect must also
be ventilated in the first respondent's opposing papers
should a
decision be taken to oppose the relief sought. In this respect there
are conflicting decisions and it is likely that
a full bench may have
to hear this application."
In the letter dated 6 April 2009, also referred to above under
the heading "introduction", the first respondent's
defences
were formulated as follows:
"… it was agreed that the first respondent will in a
letter briefly set out the main points that will be argued before
the
full bench.
Accordingly we hereby briefly set out the main points:
1. The first respondent's decision to appoint a candidate, in terms
of the recommendations of the chairperson of the Magistrates'

Commission, is not an 'administrative action' as contemplated in the
Promotion of Administrative Justice Act, 3 of 2000
.
2. The first respondent's decision in appointing a candidate is an
exercise of executive power and is not subject to review.
3. The first respondent only appoints nominees recommended by the
chairperson of the Magistrates' Commission. The reasons for
each
such recommendation appear in the proceedings of the Appointments
Committee of the Magistrates' Commission.
In the absence of any attack on the selection proceedings followed by
the Magistrates' Commission, the first respondent is not
expected to
give reasons and even in the absence of reasons from the first
respondent, the decision is not reviewable in law."
In the first respondent's heads of argument under the heading "The
minister's grounds for opposition" the following
is said in
para 25 thereof:
"25. The minister opposes the application on the following
bases:
25.1 first, the impugned decision does not constitute 'administrative
action' for the purposes of PAJA;
25.2 second and in any event, the applicant's case effectively
amounts to an appeal, and not a review;
25.3 third, and even if the decision were 'administrative action' for
the purposes of PAJA, the grounds of review relied upon by
Wessels
have not been established."
The alleged obligation of the first respondent to furnish reasons
referred to in the first respondent's attorney's letter of 6 April

2009 for her decision is not addressed in the quoted paragraph or
elsewhere in the heads of argument. I will deal with this

aspect and the other defences raised in the first respondent's heads
of argument later in this judgment.
AMICUS CURIAE
As far as I am aware neither the applicant nor the first respondent
notified the Registrar in terms of rule 16A of the Uniform
Rules
of Court that a constitutional point is being raised by anyone of
them. Nonetheless the Association of Regional Magistrates
of South
Africa ("ARMSA") sought the consent of both the applicant
and the first respondent to be admitted to these proceedings
as
amicus curiae
. The request was motivated as follows:
"5. … ARMSA is acutely concerned that the legal issues
raised in the State Attorney's letter of 6 April 2009:
5.1 are incorrect as a matter of law; and
5.2 if accepted, would have the effect of undermining judicial
independence.
6. ARMSA accordingly seeks the consent of the parties to its
admission as an
amicus curiae
, in terms of Rule 16A of the
High Court rules in order to advance written and oral submissions on
the following contentions:
6.1 The decision to appoint a Regional Court President is
administrative action in terms of section 33 of the Constitution and
section 1
of the
Promotion of Administrative Justice Act 3 of
2000
.
6.2 Irrespective of whether the first respondent's decision is '
an
exercise of executive power
', it does remain '
subject to
review
', at least pursuant to the legal constraints applicable to
the exercise of all public power, including the principle of
legality.
6.3 Whatever the nature of the decision concerned, the first
respondent is required, upon request, to provide reasons for his
decision."
The necessary consent was given and ARMSA filed heads of argument
and also appeared before us.
In my judgment the applicant and first respondent correctly
consented to ARMSA being admitted as
amicus curiae
. The
outcome of this application may very well have affected the judicial
independence of at least the regional court magistracy.
DOES THE DECISION OF THE FIRST RESPONDENT TO APPOINT SECOND
RESPONDENT AS REGIONAL COURT PRESIDENT: LIMPOPO CONSTITUTE
ADMINISTRATIVE
ACTION
?
Section 33 of the Constitution of the Republic of South Africa Act,
108 of 1996 ("the Constitution") deals with "just

administrative action". It reads as follows:
"
33. Just administrative action
. – (1) Everyone has
the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these
rights, and must-
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration."
The national legislation envisaged by section 33 of the Constitution
is PAJA. Because PAJA specifically deals with administrative
action
it is necessary to consider its provisions in some detail.
Part of the Preamble of PAJA reads as follows:
"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;"
In terms of section 1 of PAJA "administrative action" is
defined as follows:
"'
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 of a provincial
constitution; 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 empowering provision,
which adversely affects the rights of any person and which has a
direct, external legal effect, but does not include-
(aa) the executive powers or functions of the National Executive,
including the powers or functions referred to in sections 79(1)
and
(4), 84(2)(a), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b),
(c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97,
98, 99 and
100 of the Constitution;
(bb) the executive powers or functions of the Provincial Executive,
including the powers or functions referred to in sections 121(1)
and
(2), 125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b), 137,
138, 139 and 145(1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial
legislature or a municipal council;
(ee) the judicial functions of a judicial officer of a court referred
to in section 166 of the Constitution or of a Special Tribunal

established under section 2 of the Special Investigating Units and
Special Tribunals Act, 1996 (Act No 74 of 1996), and the judicial

functions of a traditional leader under customary law or any other
law;
(ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the nomination,
selection, or appointment of a judicial official or any other
person,
by the Judicial Service Commission in terms of any law;
(hh) any decision taken, or failure to take a decision, in terms of
any provision of the
Promotion of Access to Information Act, 2000
; or
(ii) any decision taken, or failure to take a decision, in terms of
section 4(1)
;"
"Decision" in turn is defined as follows in
section 1
of
PAJA:
"'
decision
' means any decision of an administrative
nature made, proposed to be made, or required to be made, as the case
may be, under an
empowering provision, including a decision relating
to-
(a) making, suspending, revoking or refusing to make an order, award
or determination;
(b) giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an
administrative nature, and a reference to a failure to take a
decision
must be construed accordingly;"
In argument before us Mr Duminy SC submitted that no
right
of the applicant was adversely affected by the minister's decision to
appoint the second respondent as Regional Court President:
Limpopo.
The minister's decision therefore did not amount to administrative
action with the consequential result that the decision
is not
reviewable.
This particular argument was not raised in the application for
postponement, either in the founding affidavit for the postponement

or in oral argument for the postponement. The argument was also not
pertinently raised in the first respondent's heads of argument
before
us. It can only be brought home under the argument that the
minister's action amounted to the exercise of an executive
power. Be
that as it may, it is a legal argument and must be considered and
commented on. The fact that this argument was not
pertinently raised
and addressed, has the result that counsel for the applicant and the
amicus curiae
did not have the opportunity of preparing proper
argument on this point before the hearing of the application. To
that extent
this court is also at a disadvantage.
Mr Duminy referred to the process followed by the Magistrates'
Commission by considering all the applications for the vacant post,

compiling a short list of candidates, holding interviews with the
short listed candidates and recommending the appointment of one

candidate from a list of four. Mr Duminy submitted that none of
the candidates had a right to be appointed as Regional Court

President: Limpopo. He said that they might have had a hope or
desire to be so appointed, the aspiration to be a Regional Court

President or a spes to be so appointed, but no right. 0nce an
appointment had been made, so the argument continued, the appointed

candidate had a right to act as Regional Court President: Limpopo and
a right to all the trappings attached to that position.
The submission was therefore that no right of the applicant was
adversely affected by the minister's decision. Mr Duminy
relied
for this submission not only on the provisions of the definition of
"administrative action" in PAJA but also on
the following
dictum
of NUGENT, JA in
Grey's Marine Hout Bay (Pty)
Ltd & 0thers v Minister of Public Works & 0thers
[2005] ZASCA 43
; ,
2005 6
SA 313
(SCA) at p323E F, para [23] which reads as follows:
"… The qualification, particularly when seen in
conjunction with the requirement that it must have a 'direct and
external legal effect', was probably intended rather to convey that
administrative action is action that has the capacity to affect
legal
rights, the two qualifications in tandem serving to emphasise that
administrative action impacts directly and immediately
on
individuals."
I do not agree with Mr Duminy's submission or his
interpretation of the passage he quoted from the
Grey's Marine
case.
A most helpful discussion of the requirement of "adversely
affecting rights" in the definition of "administrative

action" in PAJA is contained in chapter 63, volume 4 of the 2
nd
edition of Constitutional Law of South Africa by
Klaaren
et
al,
63-69 to 63-74. At 63-69/70 the following is
inter
alia
stated:
"The word 'affects' is capable of two meanings –
'deprived' and 'determined'. If the former definition is to be
preferred,
PAJA will cover a narrow class of administrative action.
If the latter is given precedence, then it will cover a relatively
broad
class of administrative action. For example, if 'affects'
means 'deprived', a person whose licence is prematurely terminated
will
be protected by the rules of administrative justice but a
first-time applicant for a licence will not. This dispute between
the
determination theory and the deprivation theory of administrative
justice is not new to our law and had already generated a
considerable
amount of debate in relation to the scope of natural
justice prior to the finalisation of the Interim Constitution.
While it is possible that the inclusion of the word 'adversely'
indicates the deprivation theory, this interpretation would give

administrative action such a limited meaning as to render PAJA
unconstitutional. To hold that administrative justice only applies

to decisions which deprive a person of his or her rights cannot be
said to give effect to the constitutional right to just
administrative
action. Such an interpretation should thus be
avoided. 0ur courts should rather adopt the determination theory in
interpreting
this requirement of PAJA. Although our courts have not,
to date, expressly grappled with the deprivation versus determination
theories in this context, the decision by the majority of the
Constitutional Court in
Union of Refugee Women
clearly
endorses the determination theory in the context of PAJA's definition
of administrative action."
In
Union of Refugee Women and 0thers v Director: Private Security
Industry Regulatory Authority and 0thers
2007 4 SA 395
(CC)
referred to in the above quotation, KONDILE AJ, states as
follows in para [70], p417 of the judgment:
"[70] The respondents have, in answering affidavits in the High
Court, denied that the aforesaid decisions constitute administrative

action. The denial is based on the assertion that the decisions do
not have a direct external legal effect on the applicants.
The
assertion is erroneous. The refusal to register an applicant as a
private security service provider is an adverse determination
of the
applicants' rights. The determination has an immediate, final and
binding impact on the applicants, who have no connection
with the
Authority. The decisions therefore do have a direct, external legal
effect and constitute administrative action in terms
of PAJA."
The authors of chapter 63 of
Constitutional Law of South Africa
further refer to para [23] of the judgment by NUGENT, JA in
Grey's Marine
case
supra
in support of their contention
that the determination theory is to be applied to the requirement of
adversely affecting rights.
As stated above, Mr Duminy relied on a
part of para [23] in support of his submission. The entire para
[23] reads as follows:
"[23] While PAJA's definition purports to restrict
administrative action to decisions that, as a fact, 'adversely affect

the rights of any person', I do not think that literal meaning could
have been intended. For administrative action to be characterised
by
its effect in particular cases (either beneficial or adverse) seems
to me to be paradoxical and also finds no support from the

construction that has until now been placed on s 33 of the
Constitution. Moreover, that literal construction would be
inconsonant
with s 3(1), which envisages that administrative
action might or might not affect rights adversely. The
qualification, particularly
when seen in conjunction with the
requirement that it must have a 'direct and external legal effect',
was probably intended rather
to convey that administrative action is
action that has the capacity to affect legal rights, the two
qualifications in tandem serving
to emphasise that administrative
action impacts directly and immediately on individuals."
The authors state that in their opinion "the capacity to affect
legal rights" is a synonym for "determines rights".

I agree with this opinion and I am therefore satisfied that
Mr Duminy's interpretation of part of para [23] in the
Grey's
Marine
case
supra
is incorrect.
It is also important to note that NUGENT, JA refers in para [23] of
the judgment to section 3(1) of PAJA which reads as follows:
"Administrative action which materially and adversely affects
the rights or legitimate expectations of any person must be

procedurally fair."
No doubt NUGENT, JA was aware of the difference between the
definition of "administrative action" in section 1
of PAJA
and the inclusion of legitimate expectation in section 3 of PAJA
which was described by Hoexter
Administrative Law in South Africa
as: "A perverse piece of drafting that gives rise to a mind
boggling contradiction between sections 1 and 3." I am
of
the opinion that because of the inclusion of the concept "legitimate
expectation" in section 3 of PAJA, NUGENT, JA
referred to
administrative action as action that has the
capacity
to
affect legal rights.
In view of the aforegoing I am satisfied that
in casu
the
applicant's rights were determined when the second respondent was
appointed as Regional Court President. Her rights were therefore

adversely affected as required by PAJA which may give rise to
administrative review.
In the
Grey's Marine
case
supra
NUGENT, JA
considered the definition of administrative action quoted above and
stated the following at pp322-323, paras [21]
and [22]:
"[21] What constitutes administrative action – the
exercise of the administrative powers of the State – has always

eluded complete definition. The cumbersome definition of that term
in PAJA serves not so much to attribute meaning to the term
as to
limit its meaning by surrounding it within a palisade of
qualifications. It is not necessary for present purposes to set
out
the terms of the definition in full: the following consolidated and
abbreviated form of the definition will suffice to convey
its
principal elements:
'Administrative action means any decision of an administrative
nature made … under an empowering provision [and] taken
…
by an organ of State, when exercising a power in terms of the
Constitution or a provincial constitution, or exercising
a public
power or performing a public function in terms of any legislation, or
[taken by] 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 empowering provision, which adversely
affects the
rights of any person and which has a direct, external legal effect …'
[22] At the core of the definition of administrative action is the
idea of action (a decision) 'of an administrative nature'
taken
by a public body or functionary. Some pointers to what that
encompasses are to be had from the various qualifications that

surround the definition but it also falls to be construed
consistently, wherever possible, with the meaning that has been
attributed
to administrative action as the term is used in s 33
of the Constitution (from which PAJA originates) so as to avoid
constitutional
invalidity."
In order to decide whether the minister's action or decision
in casu
amounts to administrative action or not, it will be necessary to
analyse the "cumbersome definition" and more in particular

the "palisade of qualifications", or exclusions as the
qualifications are also called. It will also be necessary to
analyse
what actions are included as administrative actions.
In clauses (aa) and (bb) of the definition of "administrative
action" most of the executive powers or functions of the

National Executive and of the Provincial Executive are excluded from
the definition.
In
Minister of Health & Another NO v New Clicks South Africa
(Pty) Ltd & 0thers
2006 2 SA 311
(CC) CHASKALSON, CJ
considered
inter alia
, the question whether the making of
regulations by the Minister of Health constituted administrative
action under PAJA. In deciding
that question the learned chief
justice considered certain omissions from the list of exclusions,
inter alia
the omission of the power or function contained in
section 85(2)(a) of the Constitution dealing with the authority of
the President
together with the cabinet to implement national
legislation, except where the Constitution or an act of parliament
provides otherwise.
The learned chief justice concluded that that
omission was deliberate as well as the omissions contained in
sections 125(2)(a),
(b) and (c) of the Constitution dealing with the
executive powers of a Premier of a province together with the other
members of
the executive council.
The power or function of the National Executive relevant for present
purposes which is not excluded from the definition of administrative

action is that contained in section 84(2)(e) of the Constitution
which reads as follows:
"(2) The President is responsible for-
(a) …
(e) making any appointments that the Constitution or legislation
requires the President to make, other than as head of the National

Executive;"
A further relevant exclusion in the definition of "administrative
action" in PAJA is that contained in section (gg),
referred to
earlier herein. For purposes of clarity it is quoted again:
"a decision relating to any aspect regarding the nomination,
selection, or appointment of a judicial official or any other
person,
by the Judicial Service Commission in terms of any law;"
In my judgment both the exclusion from and the inclusion in the
definition of "administrative action" in PAJA referred
to,
ie that contained in section (bb) of the definition referring to
section 84(2)(e) of the Constitution (the inclusion) and section
(gg)
of the definition (the exclusion), were deliberate.
I therefore agree with the submission on behalf of the
amicus
curiae
that, while a number of presidential powers or functions
are excluded from the definition of "administrative action",

the power of the President contained in section 84(2)(e) of the
Constitution "of making any appointment that the
Constitution
or legislation requires the President to make, other
than as head of the National Executive" is not excluded from the
definition
and therefore is administrative action.
The question then is: why should the minister's action of the
appointment of a Regional Court President in terms of legislation
and
not in terms of an original constitutional power be regarded as the
performance of an executive function rather than the taking
of
administrative action?
In my judgment the minister's action of appointing the second
respondent as Regional Court President: Limpopo, amounted to the

taking of administrative action which is reviewable in terms of PAJA.
This conclusion is supported by the contents of section (gg) of the
definition of "administrative action" in PAJA.
The
appointment of a judicial officer (ie a judge) by the Judicial
Service Commission is excluded from the definition of "administrative

action". The actions of the Magistrates' Commission or the
minister in the appointment of magistrates were not so excluded.
It
therefore also follows that parliament intended the appointment of
magistrates to fall under the definition of "administrative

action" and therefore to be reviewable action.
This view is further strengthened by the
obiter dictum
of
LEWIS, JA in
Minister of Defence and 0thers v Dunn
2007 6
52 (SCA), para [4] at p55C D where the following is said:
"The justification for regarding the appointment of a person to
a post as administrative action, even though it cannot be
said to
adversely affect the 'right' of a person who is non-suited, is to be
found,
inter alia
, in
Grey's Marine Hout Bay (Pty) Ltd and
0thers v Minister of Public Works and 0thers
where Nugent JA
said that while PAJA's definition of administrative action refers to
decisions that 'adversely affect the
rights
of any person' (my
emphasis), the literal meaning cannot have been intended by the
Legislature. The qualification, he said, was
'probably intended to
convey' that the decision 'has the capacity to affect legal rights'."
SECTION 5 OF PAJA
Section 5 of PAJA deals with the reasons for administrative action.
In summary it provides that:
1. a person whose rights have been materially and adversely affected
by administrative action may request reasons for the action;
2. adequate reasons must be furnished within ninety days from receipt
of the request;
3. if no reasons are furnished it must be presumed, in the absence of
proof to the contrary, that the administrative action was
taken
without good reason;
4. in circumstances referred to in section 5(4) of PAJA, there may be
a departure from the requirement to furnish reasons.
The applicant stated that her rights were materially and adversely
affected by the administrative action. That was disputed in
oral
argument. I have already concluded that her rights had been so
affected. From the above it is clear that the applicant
timeously
requested reasons from Ms Mabandla, the then responsible
minister. It is also clear from what is stated above
that the
then minister did not acknowledge receipt of letters, failed to
furnish reasons for her decision, did not explain that
failure or
contended that it was not necessary to furnish reasons. The minister
responsible for the administrative action and
her successor failed to
file an answering affidavit in opposition to the application without
any acceptable reason. Even after
the matter had stood down for some
time the first respondent's counsel could not tell whether
Ms Mabandla would furnish any
reasons whatsoever. 0nly then and
clearly in an attempt to justify the responsible minister's failure
to furnish reasons, was
it submitted that no reasons were required
because the appointment of the second respondent amounted to the
exercise of executive
power. That submission has no basis
whatsoever. It was also contended that the question whether the
decision amounted to
administrative action or not was so contentious
because of conflicting judgments, that the applicant ought to be
referred to a
full bench. No conflicting judgments were referred to
and it is clear that none exist. It is merely a question of
interpretation
of relevant legislation and the application thereof on
particular facts.
The only judgment the first respondent is really relying on for the
contention that the appointment of a magistrate amounts to
the
exercise of executive power is
Van Rooyen and 0thers v The State
and 0thers (General Council of the Bar of South Africa Intervening)
2002 5 SA 246
(CC) in particular para [109] at p294 which reads as
follows:
"[109] It is thus clear that the fact that the Minister is not
bound by the recommendations of the Magistrates Commission
is not
constitutionally objectionable. The
First Certification Judgment
held that the Executive could have retained the power to appoint
Judges (and magistrates) itself without infringing the institutional

independence required by the Constitutional Principles. Thus, the
appointment of a Magistrates Commission, presided over by a
Judge,
and drawn from diverse sections of the legal community to advise the
Executive in relation to the appointment of magistrates
is a check on
the exercise of executive power, and not a flaw in the appointment
process."
Reliance is placed by the first respondent on the words "check
on the exercise of executive power". 0n these few words
the
first respondent
inter alia
bases his argument that the
appointment of a magistrate is the exercise of executive power.
Note should, however, also be taken of the contents of para 106,
p293 of the
Van Rooyen
judgment which reads as follows:
"[106] In particular, the judgment of the High Court seems to
assume that the involvement of members of the Executive and
the
Legislature in the appointment of judicial officers contravenes the
separation of powers required by the Constitution. The
mere fact,
however, that the Executive and the Legislature make or participate
in the appointment of Judges is not inconsistent
with the separation
of powers or the judicial independence that the Constitution
requires."
It is true that the minister is part of the National Executive of
the Republic of South Africa. That does not mean that each
and every
time a minister acts, it amounts to the exercise of executive power.
The constitutional court has repeatedly held that
what matters is not
so much the functionary as the function. The question is whether the
task itself is administrative or not.
See
President of the
Republic of South Africa and 0thers v South African Rugby Football
Union and 0thers
2000 1 SA 1
(CC) at p67 para [141];
Zondi v
MEC for Traditional and Local Government Affairs and 0thers
2005
3 SA 589
(CC) at p623, para [104].
In any event, so it was contended by the
amicus curiae
, the
constitutional court was not called upon in the
Van Rooyen
case to decide, and did not decide, whether the appointment of a
magistrate was of an administrative or executive nature. I agree

with this submission.
In a last attempt to justify the responsible minister's failure to
fulfil her duties it was submitted that the Magistrates' Commission's

recommendation qualify as reasons for the minister's decision. This
submission was not persisted with during argument and is in
any event
devoid of any substance.
The responsible minister's failure to furnish reasons, seen in the
light of the aforegoing, cannot be seen other than proof that
the
administrative action was taken without good reason. It is
therefore clear that the responsible minister's decision to
appoint
the second respondent as Regional Court President: Limpopo, must be
reviewed and set aside.
PRINCIPLES OF LEGALITY AND ACCOUNTABILITY
The
amicus curiae
further submitted that the minister's
decision is in any event subject to the principles of legality and
accountability which require
that reasons be given.
Having come to the conclusion that the first respondent's decision
must be reviewed and set aside on the grounds as set out
hereinbefore,
it is not necessary to deal at length with this
submission. It is also not necessary to do so because it was not
addressed in
the applicant's and the first respondent's heads of
argument. The submission needs some comment, however.
I agree with the submission that the exercise of a public power is
subject to the principle of legality [
President of the Republic of
South Africa and 0thers v South African Rugby Football Union and
0thers
2000 1 SA 1
(CC) at p70, para [148]] and accountability
[
Rail Commuters Action Group and 0thers v Transnet Ltd t/a Metro
Rail and 0thers
[2004] ZACC 20
;
2005 2 SA 359
(CC) at pp399 401, paras [73]
to [78];
AAA Investments (Pty) Ltd v Micro Finance Regulatory
Council and Another
2007 1 SA 343
(CC) at p380, para [89]].
I also agree with the submission that the principle of legality,
which includes rationality and accountability, imposes a duty
upon
the functionary exercising a public power to provide reasons for its
act or decision.
The then responsible minister, Ms Mabandla, failed to furnish
any reason whatsoever for her decision and failed to say whether
and
when she intended furnishing reasons when given the opportunity so to
do through her legal advisors and functionaries in the
ministry.
APPEAL OR REVIEW
The second basis for opposing the application is that the
applicant's case amounts to an appeal and not a review.
In view of the aforegoing, there is no merit in this submission and
I will therefore not deal with it any further.
GROUNDS OF REVIEW
The third basis of opposition is that "even if the decision
were 'administrative action' for the purposes of PAJA, the grounds
of
review relied upon by Wessels have not been established".
The applicant relies on various grounds of review in section
6(2)(e), (f) and (h) of PAJA. Had the minister given reasons and/or

delivered an answering affidavit, the court would have been in a
position to decide for or against the applicant on those grounds.

The minister chose not to do so and therefore the presumption that
the administrative action was taken without good reason remains

undisturbed. "Good reason" is inherent in all of the
grounds relied on by the applicant.
0n this basis I am satisfied that the applicant is entitled to
review. It is true that the applicant refers to the reasons why
she
maintains that she should have been appointed as Regional Court
President for Limpopo instead of the second respondent. The

applicant is not asking this court to substitute its decision for
that of the minister. She asks that the matter be referred back
to
the minister. In my judgment it is inadvisable to express any
opinion on the merits or demerits of anyone of the applicants
for the
vacancy of Regional Court President for Limpopo.
DIRECTIONS TO FIRST RESPONDENT
0n behalf of the applicant it was submitted that in referring the
matter back to the first respondent, this court should issue
certain
directives. The reasons for the request are that the matter has been
dragging on since September 2008 without any reaction
from the first
respondent and that the first respondent had had enough time to
consider the merits and demerits of the applicant
and could come to a
quick decision.
In my judgment a court should be hesitant to issue directives which
may appear to affect the exercise of the minister's discretion.
Sight should also not be lost of the fact that the present minister
is the second successor to Ms Mabandla who originally
took the
decision. I am satisfied that the present minister should, from
the aforegoing, be aware of the fact that the matter
had been
dragging on for a considerable period of time to the prejudice not
only of the applicant and the second respondent but
also to the
regional court magistracy. It should, in the circumstances, be clear
to the present minister that the matter requires
his urgent
attention.
ORDER
The following orders are therefore granted:
1. The first respondent's decision to appoint the second respondent
as the Regional Court President for Limpopo province is hereby

reviewed and set aside.
2. The matter is referred back to the first respondent to enable him
to anew consider the recommendations of the third respondent
dated
12 August 2008.
3. The first respondent is ordered to pay the costs of the
application.
W J
VAN DER MERWE
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I agree
J B SHONGWE
DEPUTY
JUDGE-PRESIDENT OF THE
NORTH GAUTENG HIGH COURT
I agree
A A LOUW
JUDGE
OF THE NORTH GAUTENG HIGH COURT
594-2009
HEARD ON: 26/6/2009
FOR THE APPLICANT: ADV D S FOURIE SC
INSTRUCTED BY: ADELE VD WALT ATTORNEYS, PTA
FOR THE 1
ST
RESPONDENT: ADV W DUMINY SC WITH ADV K PILLAY
INSTRUCTED BY: STATE ATTORNEY PTA
AMICUS CURIAE: ADV S BUDLENDER SC
INSTRUCTED BY: RUDMAN ATTORNEYS PTA

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