“But the ‘burgeoning principle of legality’ is arguably a greater threat to PAJA than recourse to the common law because it regulates the exercise of all public power.  This includes, in addition to administrative decisions covered by s 33 and PAJA, power exercised by the legislature and the executive. Lord Bingham, one of Britain’s most eminent jurists, pithily captured the principle thus:

‘Ministers and public officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably’.”  [para 34 of SITA judgment with footnotes omitted]

Authority: C Hoexter Administrative Law in South Africa 2 ed (2012) at 227-234 C Hoexter ‘The Constitutionalization and Codification of Judicial Review in South Africa’ in C Forsyth et al Effective Judicial Review (2010) at 56

State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd (641/2015) [2016] ZASCA 143 (30 September 2016) per Cachalia JA (Tshiqi and Van der Merwe JJA concurring)

Excerpts without footnotes

[35]      Because of the ubiquitous reach of the principle of legality, and the fact that administrative actions also fall within its remit, it is unsurprising that litigants and the courts have sometimes deliberately sidestepped PAJA.  The reason is obvious; it is at times difficult to work out whether the unlawful action complained of qualifies as administrative action.  Many of the elements of the definition remain unsettled.  One only has to look to the difficulty courts have had in establishing whether the action in question has satisfied the element of having ‘a direct, external legal effect’ to demonstrate the nature of the problem.[1]

[36]      But it is not a problem that can legitimately be avoided.  For if a litigant or a court could simply avoid having to conduct the sometimes testing analytical enquiry into whether the action complained of amounts to administrative action, PAJA, in Professor Hoexter’s words:

‘.  .  .  would soon become redundant, for no sane applicant would submit to its definition of administrative action (or to the strict procedural requirements of section 7) if he or she actually had a choice.’[2]

[37]      Put differently, the consequence of this would be that the principle of legality, unencumbered by PAJA’s definitional and procedural complexities, would become the preferred choice of litigants and the courts – which is happening increasingly – and PAJA would fall into desuetude.  This would be a perverse development of the law, one that the framers of the Constitution would not have contemplated when they drafted s 33(3) of the Constitution.[3] Neither would the lawmaker have imagined this when enacting PAJA.

[38]      In my view, the proper place for the principle of legality in our law is to act as a safety-net or a measure of last resort when the law allows no other avenues to challenge the unlawful exercise of public power.  It cannot be the first port of call or an alternative path to review, when PAJA applies.  As this court said in National Director of Public Prosecutions & others v Freedom Under Law:[4]

‘The legality principle has now become well established in our law as an alternative pathway to judicial review where PAJA finds no application.’ (emphasis added) 

[39]      The facts of this case demonstrate precisely why SITA should not be allowed to bypass PAJA and rely directly on the principle of legality.  Under s 7 of PAJA, SITA was well outside the 180-day rule when it commenced proceedings to nullify its contract with Gijima.  By framing its application as a legality review it sought to circumvent PAJA and its 180-day rule.  What is more, SITA’s true objective in seeking to nullify its contract with Gijima was not to vindicate the principle of legality, but one of self-interest: to avoid having to deal with its payment dispute arising from its breach of contract through arbitration.  The courts cannot countenance such dishonourable conduct, particularly from an organ of state.[5] I should emphasise that the delay rule, which is aimed at bringing finality to administrative decisions is itself an incident of the rule of law.  As Boonzaier observes in his thoughtful treatment of the topic: ‘government can act antithetically to the rule of law even as it purports to assert legality.’[6] SITA’s legality challenge was therefore not competent, and its application was correctly dismissed.