This blog was co-authored by: Felix Le Roux, Candidate Attorney
In the June 2022 case of Tsogo Sun Caledon (Pty) Ltd and Others v Western Cape Gambling and Racing Board and Another, involving a decision of a gambling board to impose conditions in respect of gambling licences, the Supreme Court of Appeal said the following:
There is no dispute that decisions of the Board amount to administrative action under the Promotion of Administrative Justice, Act 2000 (PAJA). This means that such decisions are susceptible of review under both PAJA and the principle of legality.
This statement reflects the growing tendency of our courts to invoke PAJA and the principle of legality interchangeably in cases where the applicable review grounds exist under both. There is considerable overlap between PAJA and the principle of legality, with most of the review grounds of unlawfulness and irrationality essentially being duplicated.
Everyone dealing with government and organs of state should bear in mind that section 33(3)(a) of the Constitution requires administrative action to be regulated by national legislation, and that PAJA is the legislation enacted by Parliament to regulate administrative action. Accordingly, applicants challenging decisions that may amount to administrative action ought to rely on the review grounds in section 6(2) of PAJA and, in the alternative, rely on the review grounds under the principle of legality, in case the court finds that the impugned conduct does not amount to administrative action.