Abstract

There have been differences of opinion for decades as to whether defective administrative action is void ab initio or ‘valid but voidable’. The latter proposition is rooted in the presumption of validity in terms of which defective administrative action is deemed to be valid until set aside. It is highly questionable whether the presumption, which dates back to 18th century absolutist times, is compatible with the constitutional norms embodied in ss 1(c), 8(1) and 33 of the Constitution of the Republic of South Africa, 1996. Little cognisance has also been taken of the implications of the criterion of a ‘direct, external legal effect’ in the statutory definition of ‘administrative action’, which has been taken over from German administrative law. It implies that an administrative act becomes effective (legally binding) once it has been communicated to the addressee; its validity, however, depends on compliance with the applicable law and constitutional norms. A comparative perspective from German law may offer a possible resolution of the dispute and put the distinction between void and voidable administrative action on a better footing.