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Regulation of the Executive Leg of Government in terms of PAJA

In the case of Minister of Defence and Military Veterans v Motau & Others [CCT133/13], the Constitutional Court found the Minister of Defence’s decision to dismiss two SANDF employees to be executive action rather than administrative action. The Minister of Defence’s dismissal was based on the employees’ delays in various projects, failure to conclude a service level agreement with the Department and the broken down relationship between themselves and the rest of the SANDF.

The Constitutional Court decided that the dismissal was executive action based on the nature of her powers and that the Armscor Act 57 of 1968 confers on the Minister of Defence a duty to supervise the entire SANDF’s actions and that her duty and powers were therefore in national interest. Her responsibility is political and has in mind political aims. Further, her duties are said to be of a high level and entails a corporate relationship with various persons and Board members. The Court also found the dismissal to be fair as the relationship between the employees and the SANDF had broken down irreparably. 

It is understood that when policy is formulated in the wide sense, it constitutes executive action but when policy is formulated in the narrow sense, it constitutes administrative action. It is also understood that PAJA regulates administrative action and that administrative action may, accordingly, be reviewed in terms of the strict requirements set out in PAJA. Section 84(2) of PAJA specifically excludes distinctively political functions from the scope of administrative action.

Of particular interest is a remark that was made by the Minister of Defence during the meeting at which she dismissed the said employees. The Minister said she did not deem the dismissal as a legal matter but rather as a political matter. This remark is interesting for her decision of dismissal obviously did not constitute a purely political act as envisaged in section 84(2) of PAJA, yet she herself felt it was more political than anything else. 

The Constitutional Court, for reasons based on the nature of her powers and the intention of the Armscor Act that conferred these powers on the Minister, was willing to commit to say her decision was more executive than administrative.

In the trias politica or separation of powers model, both police acts and the SANDF’s acts are considered to be executive in nature. The difference, however, is that police acts are, in Cora Hoexter’s words, to: “…embrace all the administrative activities undertaken in the ostensible pursuit of internal and external defence. While police acts are not inherently different from other administrative actions, they have important constitutional implications…” (Administrative Law in South Africa (2nd ed)). However, according to the Constitutional Court, the Minister of Defence’s decision was executive and not administrative. 

In the recent State of the Nation debacle, there was mention and accusations that the actions of the police officers at the said event should be interpreted as a sure sign that South Africa was becoming a “police state”. It is therefore of relevance, in the current climate more than ever before, that we understand how the SAPS’ and SANDF’s acts and how the respective Ministers’ acts are regulated and limited. 

Although the Constitutional Court only decided the current case with respect to the Minister of Defence’s decision of dismissal, it may be worrisome that certain decisions by the Minister of Defence cannot be regulated in terms of PAJA. If police acts are said to be administrative but the SANDF’s, or at least the Defence Minister’s, acts may be executive, this sends our contradictory messages with respect to regulation of the executive leg of government. It can only be hoped that the judiciary will hear similar matters in future in order to clarify the possible current uncertainty with respect to regulation of the executive and to ensure that the executive be held accountable as envisioned by our supreme Constitution.  

The risks of an agreement that was copied and pasted: The whole agreement or non-variation clauseThe risks of an agreement that was copied and pasted: The whole agreement or non-variation clause

Many agreements, whether referring to lease agreements, employment agreements, agreements of purchase and sale, service level agreements or other types of agreements include boilerplate clauses. A boilerplate clause is a clause that