From challenging unlawful government decisions under PAJA to navigating the road transport regulatory framework, this guide covers the key public law and transport law obligations facing businesses and individuals.
Introduction: The Scope of Public Law in South Africa
Public law governs the relationship between the state and private persons, encompassing constitutional law, administrative law, and the regulation of public services including transport. For businesses that deal with government — through licensing, permits, tenders, regulatory approvals or enforcement action — understanding the public law framework is essential to protecting legal rights and commercial interests.
The Promotion of Administrative Justice Act (PAJA)
The Promotion of Administrative Justice Act 3 of 2000 (PAJA) gives effect to the constitutional right to lawful, reasonable and procedurally fair administrative action. It applies to any administrative action taken by an organ of state, and to private entities exercising public power. PAJA is the primary instrument through which decisions by government departments, regulators, municipalities and licensing authorities may be reviewed and set aside by a court.
Grounds for Review
PAJA prescribes the grounds on which administrative action may be reviewed: the action was taken by an unauthorised person; the action was procedurally unfair; the action was materially influenced by error of law; the action was taken for an ulterior purpose; the action was arbitrary or capricious; the action was not rationally connected to the information before the decision-maker; the action was unconstitutional; or the action violated a legitimate expectation. A PAJA review application must generally be brought within 180 days of the date on which the applicant became aware of the administrative action.
Internal Remedies First
Before approaching a court under PAJA, an applicant must ordinarily exhaust all internal remedies available. This means lodging objections, appeals or reviews with the relevant government body before commencing court proceedings. Failure to exhaust internal remedies is a ground for dismissal of a PAJA review application.
Road Transport Law: The Regulatory Framework
Road transport in South Africa is regulated by a framework that includes the National Land Transport Act 5 of 2009 (NLTA), the National Road Traffic Act 93 of 1996 (NRTA), the Cross-Border Road Transport Act 4 of 1998, and provincial and municipal by-laws. Operators of public transport services — buses, minibus taxis, metered taxis and on-demand transport services — must hold operating licences issued by the relevant provincial Operating Licence Board.
Operating Licences
An operating licence authorises the operation of a specified vehicle or fleet on a defined route or within a defined area. Licences are subject to conditions including vehicle specifications, passenger capacity, roadworthiness and driver fitness requirements. Operating without a valid licence or in breach of licence conditions exposes operators to criminal sanctions and vehicle impoundment.
On-Demand Transport: The E-Hailing Framework
E-hailing services (Uber, Bolt, inDriver) operate under a regulatory framework that has been subject to ongoing litigation and legislative development. The NLTA requires e-hailing operators to hold operating licences as metered taxi services in most provinces, and disputes between e-hailing operators and the metered taxi industry have produced significant case law. Platforms and drivers must maintain current operating licences and comply with municipal by-laws governing the conduct of public transport operations.
Public Procurement: Legal Rights and Remedies
Government procurement is governed by the Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA), the Public Finance Management Act 1 of 1999 (PFMA), and the Municipal Finance Management Act 56 of 2003 (MFMA). Unsuccessful tenderers have the right to challenge procurement decisions on grounds of irregularity through internal tender appeals and PAJA reviews. The Special Investigating Unit (SIU) and Public Protector have additional investigative powers over procurement irregularities.
Municipal Law: Rights Against Local Government
Municipalities exercise extensive powers over businesses and residents, including the power to impose rates and tariffs, regulate land use through zoning, enforce building regulations and issue notices of infringement. Ratepayers and residents have rights to object to municipal valuation rolls, appeal against enforcement notices, and challenge municipal decisions through PAJA review. The Local Government: Municipal Systems Act 32 of 2000 governs the provision of municipal services and the credit control policies municipalities may apply to defaulting consumers.
How Mashiane Attorneys Can Assist
Our Public Law and Transport practice advises businesses, transport operators, municipalities and individuals on PAJA reviews of adverse government decisions, operating licence applications and disputes, public procurement challenges, municipal rates and tariff objections, and e-hailing regulatory compliance. Contact us at hello@mashiane.law for a confidential consultation.