Resuscitating the PAJA in state self-review? Compcare Wellness Medical Scheme v Registrar of Medical Schemes

Abstract In the earlier decision in State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd the Constitutional Court concluded that the legality principle and not the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) applies to state self-reviews of administrative decisions. This was justified on the basis that the state, unlike a private litigant, is not a bearer of the right to administrative justice and is, for this reason, prevented from relying on the PAJA to review its own prior decisions (the Gijima principle). The Court, however, stated that its conclusion was limited to instances where a state organ reviews its own decision and acts in its own interest for the purposes of section 38(a) of the Constitution. This note explores the implications of the SCA’s later decision in Compcare Wellness Medical Scheme v Registrar of Medical Schemes for the Gijima principle. In substance, Compcare concluded that whenever a state organ seeks the review and setting aside of its own administrative action or that of another state organ, it must rely on the PAJA. This is because it will always be seeking to enforce the right to just administrative action in the public interest in terms of section 38(d) of the Constitution, and never in its own interests for the purposes of section 38(a). Although Compcare was concerned with a scenario that fell outside of the Gijima principle, the principled effect of the judgment is to resuscitate the PAJA in all state self-reviews of administrative actions and in so doing, to defeat the basic premise in Gijima that the state cannot rely on the PAJA.