Promotion of Administrative Justice Act, 2000/2005-03-31

&#x200b;  as amended by

Judicial Matters Amendment Act, No. 42 of 2001

Promotion of Administrative Justice Amendment Act, No. 53 of 2002

Judicial Matters Second Amendment Act, No. 55 of 2003

Definitions

1. In this Act, unless the context indicates otherwise―

“administrative action” means any decision taken, or any failure to take a decision, by―

an organ of state, when―

exercising a power in terms of the Constitution or a provincial constitution; or

exercising a public power or perfonning a public function in terms of any legislation; or

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—

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;

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;

the executive powers or functions of a municipal council;

the legislative functions of Parliament, a provincial legislature or a municipal council;

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;

a decision to institute or continue a prosecution;

a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law;

any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000; or

any decision taken, or failure to take a decision, in terms of section 4(1);

“administrator” means an organ of state or any natural or juristic person taking administrative action;

“Constitution” means the Constitution of the Republic of South Africa, 1996;

“court” means―

the Constitutional Court acting in terms of section 167(6)(a) of the Constitution; or

a High Court or another court of similar status; or

a Magistrate's Court, either generally or in respect of a specified class of administrative actions, designated by the Minister by notice in the Gazette and presided over by a magistrate or an additional magistrate designated in terms of section 9A,

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;

“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―

making, suspending, revoking or refusing to make an order, award or determination;

giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

issuing, suspending. revoking or refusing to issue a licence, authority or other instrument;

imposing a condition or restriction;

making a declaration, demand or requirement;

retaining, or refusing to deliver up, an article; or

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;

“empowering provision” means a law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken;

“failure”, in relation to the taking of a decision, includes a refusal to take the decision;

“Minister” means the Cabinet member responsible for the administration of justice;

“organ of state” bears the meaning assigned to it in section 239 of the Constitution;

“prescribed” means prescribed by regulation made under section 10;

“public”, for the purposes of section 4, includes any group or class of the public;

“this Act” includes the regulations; and

“tribunal” means any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action in terms of this Act.



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—

subject to subsection (2)(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection (2)(a) have been concluded; or

where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.

(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 three years after the date of commencement of section 10 of this Act, make rules of procedure for judicial review.

(4) Until the rules of procedure referred to in subsection (3) come into operation, all proceedings for judicial review under this Act must be instituted in a High Court or another court having jurisdiction.

(5) Any rule made under subsection (3) must, before publication in the Gazette, be approved by Parliament.



