Despite our courts’ attempts to frame a suitable approach to the functus doctrine in South African administrative law, contradictory opinions on the variation or revocation of administrative action persists.
The same considerations relevant to the finality of judicial decisions are also relevant to the decisions of administrative authorities. In general, a decision-maker is not allowed to revoke or vary a previous decision without express legislative authorisation. Absent express legislative authorisation, a decision-maker will be restrained by the principles of finality and legality.
The principle of finality recognises that uncertainty would prevail if administrators could be approached to reconsider final decisions without express legislative authorisation. The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality (Pretorius DM ‘The origins of the functus officio doctrine with specific reference to its application in administrative law’ (2005) 122 SALJ 832-864 at 832). Furthermore, legal certainty supports the notion that a person should be able to rely and safely act upon an administrative decision. The rule of law doctrine rests upon the principle of legal certainty. Moreover, the principle of legality holds that an administrator must act in accordance with the law. Importantly, the principle of legality is a cornerstone of the rule of law as contained in section 1(c) of the Constitution. Section 1(c) of the Constitution states that: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: (c) Supremacy of the constitution and the rule of law”.
The functus officio doctrine therefore gives expression to the aforementioned principles. Even though the principles of finality and legality play an important role in restraining the decision-maker’s powers, a more flexible approach is often required for the proper functioning of the administration. In the interest of administrative efficiency, an administrator must therefore be allowed to exercise and re-exercise its powers as required from time to time. However, as stated, it is important to balance legal certainty and the rule of law with administrative efficiency. Hence, there is often no hard and fast rule when it comes to the functus officio doctrine in administrative law.
The question in law is whether or not an administrative official may revoke or vary his own administrative action. Nugent JA offered a consolidated definition of what constitutes “administrative action” in terms of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”) in Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) at para 21, by stating the following principle 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…”
Section 10(1) of the Interpretation Act provides that where powers are conferred or duties are imposed, the power may be exercised and performed from time to time as occasion requires, unless the contrary intention appears. Even though previous decisions may therefore in principle be varied or revoked (in light of section 10(1)), such variation or revocation is not permissible where it would affect or abolish the rights that were created by the action being revoked (unless the statute in question expressly authorises this). In so far as decisions affecting rights are concerned, the public authority in question is regarded as functus officio. Importantly, the functus officio doctrine only applies to final decision and once the decision has been communicated to the affected party (De Ville JR Judicial review of administrative action in South Africa (2003) 69).
Furthermore, section 10(2) of the Interpretation Act provides:
“Where a law confers a power, jurisdiction or right, or imposes a duty on the holder of an office as such, then, unless the contrary intention appears, the power, jurisdiction or right may be exercised and the duty shall be performed from time to time by the holder for the time being of the office or by the person lawfully acting in the capacity of such holder.”
Sections 10(1) and (2) could be interpreted as allowing a free variation or revocation of non-legislative acts, along with the proposition that effective daily administration is inconceivable without the continuous exercise and re-exercise of statutory powers and the reversal of decisions previously made. However, these provisions should not be viewed as an open invitation to administrators to revisit or revoke decisions already taken. This is in accordance with the rule of law, which holds that individuals should be entitled to rely on governmental decisions and be able to plan their lives in accordance with such decisions.
The approach to the functus officio doctrine in an administrative law context was eloquently summarised by Plaskett AJA (as he was then) in Retail Motor Industry Organisation & Another v Minister of Water & Environmental Affairs & Another 2014 (3) SA 251 (SCA) at para 25:
“[F]irst, the principle applies only to final decisions; secondly, it usually applies where rights or benefits have been granted and thus when it would be unfair to deprive a person of an entitlement that has already vested; thirdly, an administrative decision-maker may vary or revoke even such a decision if the empowering legislation authorises him or her to do so (although such a decision would be subject to procedural fairness having been observed and any other conditions) fourthly, the functus officio principle does not apply to the amendment or repeal of subordinate legislation.”
Plaskett AJA’s assertions can further be summarised as follows:
• A decision must be final before the doctrine can be applied;
• Onerous or burdensome decisions are generally revocable;
• Valid beneficial decisions may be revoked or varied only where there is express authorisation (the tenets of procedural fairness must still be adhered to); and
• Rules, regulations and by-laws may be revoked or rescinded from time to time (as long as it is done in the same manner that the relevant rule, regulation or by-law was enacted).
Therefore, it is important to note that if you should be affected by a decision taken by an administrative official or authority exercising a public power, the decision can only be revoked or varied if the official or authority in question is expressly authorised by legislation. Furthermore, it is important to note that even where an official is authorised by legislation to revoke or vary his decision, the official or authority in question must adhere to the principles of procedural fairness (i.e. notice of decision and providing the affected party an opportunity to make representations with regard to the intended revocation or variation.)
If you have been negatively affected by administrative action (i.e. tender awards, grants, municipal decisions, decisions adversely affecting your rights, etc.), contact Mr. Vince van der Walt at our offices. Mr van der Walt deals with all issues related to Administrative Law.