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Administrative Law Exam Notes BY Nigel T. Sithole-071 039 7526

- Administrative law regulates the activities of organs of state and natural or juristic persons that exercise public powers or perform public functions. - It prescribes procedures that must be followed when public powers are exercised or public functions performed, and ensures such action complies with the law. - Administrative law also provides means to control administrative action and correct action that is unlawful, unreasonable, procedurally unfair or where written reasons are not provided.

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100% found this document useful (1 vote)
172 views59 pages

Administrative Law Exam Notes BY Nigel T. Sithole-071 039 7526

- Administrative law regulates the activities of organs of state and natural or juristic persons that exercise public powers or perform public functions. - It prescribes procedures that must be followed when public powers are exercised or public functions performed, and ensures such action complies with the law. - Administrative law also provides means to control administrative action and correct action that is unlawful, unreasonable, procedurally unfair or where written reasons are not provided.

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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Administrative Law Exam Notes

BY Nigel T. Sithole- 071 039 7526


Study Unit 1

Overview of Unit

Part 1: State Authority and the Holders of such Authority

1.1 AN OVERVIEW OF THE GENERAL FEATURES OF ADMINISTRATIVE LAW

CONCEPT KEYPOINTS
Features There are four key features of administrative law, these are the gist of
the module
State Authority This is public power exercised by an organ of state or natural or juristic
person over another person or body in a subordinate or subservient
position. The exercise of such authority affects the rights of that
subordinate.
The question to ask in administrative law is whether any person or body
has acted as an organ on state. Whether the actor does indeed have
such authority as a public function.
Administrative Action This is the conduct of functionaries and institutions, administrators
when exercising a public power or performing a public function in terms
of any legislation. It usually is in the form of a decision.
Just Administrative Action This is the manner or conduct in which any administrative action must
be performed by an organ of state, natural or juristic person in
exercising state authority. The constitution requires all administrators
to act lawfully, reasonably, to follow fair procedures and to give written
reasons when decisions are made that adversely affect the rights of any
subordinate person.
Control of administrative These are the means of correcting or rectifying administrative action
action that is not just/fair, when administrative action is not in line with the
prescriptions of the law. It applies when prejudice of subordinate can
be established. Does he have a case/grievance against the administrator
1.2 WHAT IS ADMINISTRATIVE LAW

CONCEPT KEYPOINTS
Descriptive Definition To explain it is not easy because it is a wide field and is present in
every area of our lives.
In any relationship where authority is present, the relationship is one
of inequality. It’s a vertical relationship. The power of one party to
compel another legally to act in a specific way.
The conduct of this authoritative person is called administrative action.
Administrative Action Action taken by organs of state.
Executive Action v *Note S 239 of C and S 1 of PAJA, Executive Action described in the
Administrative Action constitution excluded administrative action described in PAJA.
Examples of this difference When a minister makes and decides on policy as cabinet, this is an
executive action (political decision), when they implement legislation
or executes those same policies, this is administrative action
Whether the action was authorized, that is, permitted, relates to the
authority to act. Was the party that acted authorized to act the way it
did. All parties should derive their authority from the constitution
and/or specific legislation. The answer to the question whether action
complies with the requirements of the law relates to the way or
manner in which public power has been exercised or a public function
has been performed.
Lawful It must comply with all requirements of the show, as found in
Constitution, relevant legislation, common law, customary law, case
law.
Reasonable It must be a reasonable effect or result. Decision must be sound and
sensible to a point that the party involved can say “I don’t agree with
the decision but I understand it”.
Procedurally fair Correct procedure must be used to take a decision. This partly means
that the subordinate party must be given an opportunity to air their
case before a decision is taken and authority must act impartially.
Written reasons If decision adversely affects the rights of a subordinate, the authority
should provide a reason in writing.
• Administrative law forms part of public law. Administrative law regulates the activities of organs
of state and natural or juristic persons that exercise public powers or perform public functions.
Regulating the activities of organs of state and natural or juristic persons includes prescribing
the procedures to be followed when public powers are exercised or public functions performed;
and ensuring that such action is within the boundaries of the law. Regulating also includes
control over such action.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Section 239 of C a) Any department of Shows the scope of
Organ of state: state or administration administrative action in
in the national , terms of the organ of
provincial or local state
sphere of gvt
Section 239 of C b) i) Any other function or Covers Institutions like
institution- i) exercising Chapter 9 institutions
a power or performing
a function in terms of
the constitution or a
provincial constitution
Section 239 of C b) ii) Exercising a public
power or performing a
public function in terms
of any legislation but
does not include a court
or a judicial officer
Section1 of PAJA b (aa) Does not include: the Areas of executive
(describing the scope of executive powers or administration not
the Admin Action) functions of the deemed as admin
national executive. (bb) action
the executive powers or
functions of the
provincial executive.
(cc) the executive
powers or functions of a
municipality council.
(dd) the legislative
functions of parliament,
provincial legislature or
a municipality council
(ee) the judicial
function of a judicial
officer
Section 33 (3) of C Enacted to provide for Effect given to the
the review of courts to review admin
administrative action by action.
a court or, where
appropriate, an
independent and
impartial tribunal.
Impose a duty on the
state to give effect to
those rights; and
promote an efficient
administration.
S 33 (1) of C All administrative action The rights of every legal
by organs of state or subject, goes to show
natural or juristic the four functions of
persons exercising Admin Action and
public power must be stipulates the areas and
lawful, reasonable, and rights protected by the
procedurally fair constitution
S 33 (2( of C Everyone whose “rights Same as above. fourth
have been adversely function.
affected by
administrative action
has a right to be given
written reasons.
Activity Answers

1.3 LIST OF GENERAL CONCEPTS AND TECHNICAL TERMS OFTEN ENCOUNTERED IN THE
ADMINISTRATIVE RELATIONSHIP

CONCEPT KEYPOINTS
Accountability A means to control the arbitrary exercise of administrative action.
Administration That part of the gvt (all spheres) which is mainly concerned with the
implementation of legislation, day to day running of various gvt bodies.
Administrator I.t.o PAJA, it means an organ of state or any natural or juristic person
taking administrative action.
Arbitrary Action Action based on random choice or impulsive and or not on reason, in
other words, unrestrained action.
Basic Values and Principles In section 195(1) of C, principles governing public administration. They
include the promotion of an open and transparent public
administration by providing the public with timely, accessible and
accurate information and the promotion of a high standard of
professional ethics.
Bill of Rights (chapter 2 of C) List of fundamental rights which must be respected and protected.
Case Law The decisions of the courts and which are reported in the Law Reports
Common Law Is law which is not written down in legislation
Constitution In a broad sense, it includes the entire body of rules, written and
unwritten governing the exercise of state authority in a particular state
as well as the relationship between the citizens of a state and the state
authorities. Embodies the will of the people, reflecting popular and
current values. Also sets out limits of powers and rights.
Constitutionalism Governance in accordance with the constitution. Gvt derives power
from C. Refers to a state where the law is supreme and gvt and state is
bound by Constitution.
Delegated (subordinate) Legislation which is enacted by the executive branch of gvt. It is not
legislation originally parliamentary, national, provincial or municipal.
Duty Something a person/administrator has to do because it is legally
necessary. See function and power
Executive (authority) Refers first to the political functionaries/officials of the country:
President, deputy president, ministers (cabinet), premiers, MEC’s.
2ndly also refers to the functions performed by these functionaries.
Fons et Origo The source and origin
Function Means performing a task, the word function encapsulates both the
power(ability to do something) and the duty (as the obligation to do
something)
Government In a broad sense, it embodies the legislative, executive and judicial
authority of the country. It covers all the functions of the organs of
state. In a narrow state it is used to specify the executive organs of
state, related to the executive function and implementation of policy.
Inte se Between themselves
Legal Subject A person or entity that can have rights, duties and capabilities
Judicial Precedent (stare Means that the decision of a higher court is binding to the lower courts
decisis) until such a time as the decision is overturned by the a higher court.
The court is also bound by is own previous decisions, unless they are
clearly wrong.
Judicial Authority Refers to all courts in the republic see section 165(1) of C
Judicial Review The power of the higher courts to control administrative action
through an enquiry into any excess of power, irregularity of procedure
and non-compliance.
Just Administrative Action An umbrella term for action/conduct by any person or body in
authority which is lawful, reasonable and procedurally fair (s 33 of C).
Law Refers to all forms of law, that is, the constitution, statute law,
common law and customary law. Today this form of law is found
largely in the judgments of our highest courts.
Legality Refers to the lawfulness of the state action. All gvt actions must be
performed in accordance with certain set legal principles.
Legislature Is a body of persons elected who make laws (legislation).
Limitation clause Makes it possible for the fundamental rights protected in the Bill of
Rights to be limited in certain instances. (s36 of C).
Ne bis in idem The rule that the same matter may not be heard twice.
Organ of state Defined in s 239 of C
Parliamentary Sovereignty Means that the parliament is supreme. System before 1993 in SA, also
used in England, Westminster system. Parliament is highest legislative
power but also not questionable by the courts.
Power Means possession of authority, discretionary power to choose
between two or more options.
Public Administration Chapter 10 of C, used to describe the actions of all organs of state.
Public Service s 197(1) C Used to denote the officials within the public admin who implement
gvt policies and laws.
Res iudicata The matter has been dealt with and cannot be reconsidered by the
same body but only by a higher-ranking power.
State It is a permanent bearer of authority within a particular country.
Statutory bodies Bodies created by law to perform certain functions for the state
Supreme Constitution The highest law in the country
Testing of Legislation The process whereby legislation which allegedly conflicts with the
constitution is reviewed or tested by the court. Known as
constitutional or judicial review.

Study Unit 2

The ADMINISTRATIVE-LAW RELATIONSHIP

2.1 THE CHARACTERISITICS OF THE ADMINISTRATIVE-LAW RELATIONSHIP

CONCEPT KEYPOINTS
Public Law Regulates the organization of the state and the relationship btwn the
state & the relationship btwn the individual. Concerned with the
exercise of state authority by the gvt and deals with relationships were
one of the parties are always the state as bearer of state authority.
Vertical Relationship The Public law relationship is vertical: someone in authority-
subordinate.
Private Law Concerned with relationships btwn individuals who are on an equal
footing. It is a relationship of equality.
Horizontal Relationship Private law is horizontal: individual – individual
Characteristic Atleast one legal subject must be in a position of authority. 2- it must
be held by a person who has the right to exercise state authority. Must
have the power to prescribe, restrict or allow certain behavior.
It can also exist between a person exercising authority and a lower-
ranking official in the same department. Gvt inter se

Activity Answers

An administrative law relationship is the gist of public law, it is the relationship between a natural or
juristic person in a position of state authority and a subordinate legal subject, it can also include a
superior member of a gvt department’s authority over a lower-ranking official. It is described as a
vertical relationship.

2.2 THE DISTINCTION BETWEEN A GENERAL AND AN INDIVIDUAL ADMINISTRATIVE-LAW


RELATIONSHIP

CONCEPT KEYPOINTS
The general or objective Legal rules governing the relationship btwn the parties apply to all the
relationship subjects within a particular group. This relationship is created and
ended by legislation and cannot be changed by a decision by an
administrator. E.g the Refugee Act & stance on permits.
The Individual or subjective Legal rules apply personally btwn parties, applicable to specifically
relationship identifiable legal subjects. They are created by individual
administrative decisions. Eg (theodor’s asylum seeker n Home
affairs).*Furthermore, these individual relationships are not affected
by new general legislative provisions, unless the amending Act
specifically says so.(presumption against retrospectivity)

Study Unit 3

THE LEGAL SUBJECTS OF THE ADMINISTRATIVE-LAW RELATIONSHIP

3.1 THE IDENTIFICATION OF THE AUTHORITATIVE PARTY IN THE ADMINISTRATIVE RELATIONSHIP

CONCEPT KEYPOINTS
Organ of State It is always always always invested in the organ of state, as stipulated
in section 239 of the constitution. MUST memorise s 239. These
include gvt departments at national, provincial and municipal level,
cabinet.
Breaking down s 239 National sphere: refers to department of state or gvt departments,
National sphere public sevice. e.g forestry and fisheries, arts and culture, basic
education, science n tech.
Note * Although the president, deputy and ministers are organs of state, not
all their functions constitute administrative action. Some of their
functions are executive or constitutional functions.
Provincial Sphere Organ of state would include provincial department of state, provincial
public service, Premiers and MEC’s who are executive heads of
departments. Note there is also difference between executive and
administrative functions of the premiers and MEC’s.
Local Government Organs of state include municipalities and various municipal councils
vested with state authority.
Functionary or institution Not part of public administration but either exercise power or perform
functions in terms of constitution or provincial constitution and
legislation.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Section 83 of C a) The president is the Goes to show the
head of state and head presidency and deputy
of the executive as organs of state and
their role as
administrative authority
Section 151 (1) The local sphere of gvt Explains the municipal
consists municipalities organ of state and the
which must be scope of their authority
established for the
whole of the republic
Section 151 (2) The legislative and
executive authority of a
municipality is vested in
its municipality council
Section 239 (b) Any other functionary Shows the complexity Chirwa v Transnet Ltd
or institution (i) of determining whether 2008 (CC) Langa CJ
exercising a public a function by an found “ determining
power or performing a institution/functionary whether a power or
function in terms of the (chptr9) is private or function is public is a
C or PC. (ii) i.t.o public. difficult task(minority)
legislation.
Currie and De Walt This indicates that, Supports the Chirwa V
while a pvt person or Transnet minority
entity can be an decision. How to
administrator, what is determine the pvt or
important is the public public nature of the
nature of the power decision/action.
exercised

Activity Answers

3.2 THE ROLE OF ASSOCIATIONS, CLUBS AND OTHER “PRIVATE” ORGANISATIONS

CONCEPT KEYPOINTS
Common Law e.g soccer clubs, unions, associations, traditional common law rules are
applied to them, because management is in a position of authority
over a member, who is in a position of subordination. They have a an
internal relationship based on authority so the rules are applied.
Because the matters such as admission, suspension, and other
disciplinary actions are governed by their constitution, the courts will
interpret the powers of these associations strictly based on the
agreement between the members and the associations, as contained
in their constitutions.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Emphasises that the Gvt of the self-
agreements of these governing territory of
unions and clubs and Kwazulu vs Mahlangu
their members is 1994(T) The Fons et
considered origo of the power of
contractually binding by review in every instance
the courts according to was the agreement of
common law. The the membership of the
constitutions are the jockey club. Being
law. members they were
contractually bound
themselves to a club
Shows the uncertainty Tirfu Raiders Rugby Club
of the application of v SARU2006(C) Decision
PAJA, the constitution affecting the log
or common law to standing, court saw the
every union or club significant public
case. You have to interest. They found
determine if there is that the conduct of the
enough significant union was sufficiently
public interest to apply public in nature to
PAJA. justify the application of
PAJA.

3.4 IS THE SURBODINATE PERSON POWERLESS IN THE AUTHORITATIVE RELATIONSHIP?

CONCEPT KEYPOINTS
The answer is no Persons in the subordinate position are never stripped of their rights,
privileges and interests when entering into such a administrative
relationships.
Neither are those in authority allowed to abuse their superior positions
The authority is obliged to act in accordance with the law and perform
a duty in the interest of the society and to serve and promote public
interests.
3.5 THE OBJECT OF/REASON FOR THE ADMINISTRATIVE-LAW RELATIONSHIP

CONCEPT KEYPOINTS
It may be said that the objective of an administrative-law relationship
is the reason why the legal subjects entered into a relationship. In
other words, it is the issue which brings about the legal bond linking
the two subjects.
When we link the object of the administrative-law relationship to
administrative action we may say that the object is the subject matter
of the administrative action.

Study unit 4

THE SOURCES OF ADMINISTRATIVE LAW

Overview of Unit

4.1 WHAT ARE THE SOURCES OF LAW

CONCEPT KEYPOINTS
Definition Sources of law are the places where we can find the legal rules, the
norms, principles and values that govern a particular branch of the law.
Administrative law is not self-generating but is conferred by law.
Baxter (1984:384) Administrative power means lawfully authorised power. Public
authorities possess only so much power as is lawfully authorized, and
every act must be justified by reference to some lawfully authority for
the act.
Mainly PAJA and other legislation, and the constitution, common law,
case law, administrative practice, International law.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Activity Answers

4.2 THE SOURCES OF ADMINISTRATIVE LAW

CONCEPT KEYPOINTS
Binding sources of Admin Law The constitution, principle source of law above all else.
Constitution Constitution sets the standard of exercise of power as provides a check
and balance. It also promotes and guarantees a culture of human
rights. *In the Admin-Law context, it insists on justice of the individual
by commanding that all the requisites of the valid admin action of
lawfulness, procedurally fairness, and reasonableness must be met.
(S33)
Legislation Legislation: Primary source of administrative power. Legislation adds
flesh and bones of the principles, norms and values expressed in the
constitution. S 33(3). Original Legislation is passed by parliament I the
national sphere of government e.g (PAJA and Promotion of Access to
Information Act 2 of 2000.). Delegated Legislation must be enacted
i.t.o the original legislation and it must not conflict with enabling Act.
Case Law It is the duty of the court to interpret legislation in line with the values
and principles of the constitution and apply such rules to concrete
factual situations. The courts have to control the exercise of public
power.
Common Law It is unwritten law in SA in the sense that it is not written up in
legislation. It is not an important source of South African Law. But for
e.g – the principle of ultra vires and the development in the rules of
natural justice.
Administrative Custom is made up of unwritten rules or fixed practices, which
practice/custom or usage communities have carried down for generations which they regard as
binding. PAJA acknowledges customary la as an empowering provision
in section 1. *Question, does administrative customs acquire the force
of law, do administrative practices, circulars, policy outlines? Can it be
regarded as a customary force of law?????
International Law I.t.o the constitution international law is an important source of law,
but in admin-law it plays a lesser role. Section 39 (1)(b). It regulates the
relationship btwn states and/or international orgs.
Persuasive Sources Writings in books, journals, policy documents(white and green papers),
Reports by state institutions chptr 9 institutions, Foreign law.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Sec 2 of C- Supremacy The constitution is the Goes to show the Pharmaceutical
of Constitution supreme law of the supremacy of the Manufacturers Ass of
land, any law or constitution as the SA: In re Ex Parte
conduct inconsistent primary binding source President of SA
with it is invalid, and of not only 2000(CC)- The IC shifted
the obligation imposed administrative law, but constitutionalism and
by it must be fulfilled all law. with it all aspects of
public law, from the
realm of common law
to the prescripts of a
written constitution
which is supreme law.
Section 33(3) Legislation must be Shows the empowering
enacted to give effect provision of
to these rights legislation(PAJA) by C
Shows the duty of the Pharmaceutical
courts as controllers of Manufacturers Ass of
the administrative SA: In re Ex Parte
action, the authoritative President of SA
power and how it is 2000(CC)- The courts
applied. no longer have to claim
space and push
boundaries to find
means of controlling
public power. That
control is vested in
them under the C.

4.3 WHERE TO FIND ADMINISTRATIVE-LAW SOURCES

CONCEPT KEYPOINTS
Government Gazette Published and printed by gvt
Lexis Nexis leaflets Annual collection of statutes
Internet www.polity.org.za/legislation, www.acts.co.za, www.safli.org
Law Reports Case law SA Law Reports by Juta, BLLR, BCLR
Articles SA Public Law(SAPL) SA Journal on Human Rights (SAJHR)
Policy Documents www.polity.org.za
STUDY UNIT 5

ADMINISTRATIVE ACTION

5.1 THE NEED TO ESTABLISH WHETHER ADMINISTRATIVE ACTION IS INVOLVED

CONCEPT KEYPOINTS
To apply s 33 of C The concept of just administrative action should be applied. The right
to Just administrative action depends on whether the action has been
performed by an organ of state or a person exercising public power.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Sec 33 of C 1-Everyone has the The scope of the
right to administrative administrative law
action that is lawful, application, and the
reasonable and enabling legislation to
procedurally fair.2- the need for
Everyone whose rights administrative action.
have been adversely
affected by
administrative action
has the right to be given
written reasons.3-
National legislation
must be enacted to give
effect to these rights. a)
provide for review of
admin action by court
b) impose duty to give
effect to 1 & 2. c)
promote an efficient
administration.
5.2 THE DEFINITION OF ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Section 33 of Constitution Just Administrative Action Explained
Before PAJA the approach of the CC was more about telling us what
wasn’t Admin-law than what was. So PAJA also strongly goes to
describing, defining and outlining what is administrative Law.
Section 33 (1) Explains the 1st three functions and rights of Just Administrative Action,
lawfulness, reasonableness and procedural fairness
Section 33 (2) Explains the 4th optional function and right in case of an action that
adversely affects the rights of an individual the authority should give
written reasons.
Section 33 (3) Enabling provision for PAJA, instructs the national legislator to provide
for the review of admin action in a fair and objective platform, to pass
legislation giving effect to these rights in accordance to the four
abovementioned functions, to see to the promotion of effective
administration.
Section 1 of PAJA The meaning of terms in s 1 help to determine what is and what is not
admin action. It has to be seriously noted.
Some of the key words in definition in sec 1 are approval, consent,
permission, suspending, revoking, making, refusing, giving, imposing a
condition, making a declaration, demand, require, retaining.
A put together definition of 1-A decision, including a proposed decision as well as the failure to
what qualifies as Admin Action take a decision 2- of an administrative nature 3-under an empowering
for the purpose of PAJA provision 4-organ of state or natural or juristic person when exercising
public power or performing a public function 5- that adversely affects
the rights of any person 6-that has a direct, external legal effect 7-that
is not specifically excluded by the list of nine broad categories of
exclusions mentioned in subparagraphs.
Difference between Constitutional law deals with the actions and interactions of the organs
Constitutional law and admin of state, the branches of gvt with each other. It regulates their power,
Law all the way through the spheres from national to municipal gvt.
Whereas Admin-law is concerned with the only one branch of the state
system, the executive, the conduct of the executive i.t.o implication of
law and policy, (and note their legislative functions). Con-Law is
formulation of policy; admin law is its implementation.* Note Fedsure
Decision.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


A definition of Greys Marine Hout Bay
administrative action. v Minister of Public
Given in a court of law works 2005(SCA)- The
thereby creating conduct of bureaucracy,
precedence. in carrying out the daily
functions of the state,
which necessarily
involves the application
of policy, usually after
its translation into law,
with direct and
immediate
consequences for
groups or individuals
These two cases prime President of the
that created legal Republic of SA v SSARFU
precedence to explain & Pharmaceutical
what was NOT manufacturers Ass of SA
administrative Action vs In Re Ex Parte President
exercising Judicial of the Republic of SA
functions by the
President
Section 1 of PAJA Administrative action Explains the important
means a decision taken function of the
or failure to take a definitions as a tool to
decision by an organ of identify admin action.
state.

5.3 ACTION THAT DOES NOT QUALIFY AS ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Inclusions(recap) As defined by PAJA (s 1) admin action embraces the decisions of all
organs of state or natural or juristic persons exercising public power or
performing a public function. Included note the 9 categories of
exclusions in section 1 (aa) to (ee).
Exclusions (the exception) However, PAJA also excludes certain powers or functions from the
definition of admin action. In other words, some actions performed by
either organs of state or natural/juristic persons exercising public
power DO NOT qualify as admin action.

Organ of State Excluded function according to s 1 (b) (aa) to (ee)


(aa)Executive Power and 79-Assenting of bills. 84-the legislative process in relation to the
function of the Executive in national assembly in creation of legislation, appointing commissions of
the national sphere enquiry. 85-developing and implementing policy, co-coordinating state
departments, preparing and initiating legislation, any other executive
function stipulated in the constitution or national legislation. 91-
Appointment, relations and reshuffling of Deputy V.P and Cabinet
Ministers. 100- Intervention in the provincial government if they do
not fulfill an executive obligation.
(bb)Executive Power and 121-Assenting of Bills. 125-Developing and implementing policy,
function of the Executive in developing and policy, co-coordinating state departments, preparing
the Provincial sphere and initiating legislation. Appointment, relations, reshuffling of MECs.
139- Intervention in local gvt if they fail to fulfill an executive function.
(cc)Executive power and
functions of municipal council.
(dd)The legislative functions of
parliament, a provincial
legislature and a municipality
council.
(ee)The Judicial functions of a Section 166, outlining the Judicial system & Courts
Court
(ff,gg,hh,ii) Decision to institute of continue prosecution, decision relating to
nomination of judicial officers, decision or failure of decisions i.t.o
Access to Information Act
Does this mean that no rules NO…In a system of constitutional supremacy no public action is ever
apply to these actions or is the above the law. However these are in the territory of Constitutional law
performance of these actions and regulated by those rules and prescriptions. They are reviewed
above the law????? under the constitution not PAJA.

5.4 THE CLASSES OF ADMINISTRATIVE ACTS

CONCEPT KEYPOINTS
Administrative Acts Different from admin action
Separation of powers & 3 Legislation, executive (note: there is difference between formulation
classes in Admin action and development of policy and execution and implementation of
policy), judiciary. It is important to separate power amongst the
branches so as to avoid monopoly of one. Borrowing from this principle,
admin action is also classified into 3 classes: Legislative administrative
acts, judicial administrative acts, and administrative acts.
Legislative administrative Refers to administrative acts which are legislative in nature. It is
Acts characterized by the making and issuing of rules by the administrator
when authorized to do so by original legislation. e.g The Minister of
Home affairs empowered by the Refugee act to make regulations that
deal with particular aspects relating to refugees. It is a legislative act by
an executive functionary. This is the essence of delegated legislation!!!!
Also includes directives, proclamations, directives and orders.
Characteristics: Published in gvt Gazette. Creation of general admin
relationships, Specific rules apply to repeal, amendment, adoption of
admin acts,*the power to delegate legislative authority only exists
when there is express statutory authority for this. Must not be in
conflict of original statute, be clear and not vague.
Judicial administrative Acts Like the courts administrators also interpret and apply (legal rules) in
concrete situations. Administrative adjudication is usually undertaken
by specialist bodies, known as administrative tribunals. There are very
few examples of these bodies; they are also subject to review by the
judiciary.
Administrative Acts This class refers to the true administrative acts where individual
administrative-law relationships are created or varied. These relate to
the day to day business of implementing and applying policy, legislation
or an adjudicating decision. In short, encompasses every possible aspect
of gvt activity.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Du Plessis (1998) Delegated legislation is Any decision, regulation
administrative action or policy that is enabled
by legislation is admin
action. By Minister,
MEC, gvt official

5.5 THE LEGAL FORCE OF ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Definition Legal force of admin action refers to the effect of such action
in law, we distinguish between the moment admin action
takes effect (becomes operative) and the point when the
legal force of admin action is terminated.
When does it take effect? Necessary for various reasons. Baxter (1984;367) for the
sake of obedience but also n order to compute expiry dates
for lodging of appeals, complaints, review, objections,
applications and actions for damages. In legislative admin
acts: as soon as the regulation or proclamation has been
promulgated or on the stated date of commencement. In
judicial admin acts: as soon as particular tribunal, board
gives its ruling, unless if there is a provision for a period of
appeal. I admin acts: upon decision being known, publication
in gvt gazette or individual notification.
When is it terminated? It is generally ended by repeal/revocation, amendment,
lapse of time, withdrawal of one party or an order of court.
When the class involved has dealt with the issue and can no
longer revisit decision. Identifying the relevant class is thus
very pivotal. Legislative admin acts: can be repealed at any
time, note, it is not retrospective. Judicial admin acts: once
the board or tribunal has made a decision and it cannot be
revoke decision, of course they can be rescinded or upheld
by a higher judicial body. Admin Acts: draw a line of
distinction between valid and invalid acts. If validity
requirements are not met, the act is said to be invalid.Valid,
onerous/burdensome admin acts can be changed at any
time. Decisions that give benefit or place burden on an
individual can be reviewed and changed at any time.

Study Unit 6

JUST ADMINISTRATIVE ACTION-SETTING THE SCENE

6.1 AN EXPLANATION OF THE CONCEPT OF JUST ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
When will admin action be Basic answer: it is valid when the decision of the administrator of state
performed validly, what are is authorized in law and all the requirements set by the law are met. To
the requirements? determine validity we focus on the constitution, specifically section 33.
Section 33 Actions must be lawful, reasonable, procedurally fair and written
reasons when individual rights are adversely affected.
Definition of just admin action The performance of the action must be lawfully constituted in
authority. In taking the decision the administrator must obey the
prescriptions of the law, exercise her/his discretion impartially- follow
correct procedure when taking decision-act procedurally fairly by, for
example listening to what the person has to say, he also needs to
justify the decision, the decision must be reasonable. And provide
adequate reasons for decision.
Reason for S 33 Prevents the state and individual with public power from abusing their
power against a person in a subordinate position. It also guarantees
the individual just treatment or justice and protects him from injustice.
Principles of S 195 (1) of C and It contains the inventory list in which the public admin must adhere to.
its relation to just admin The importance of the protection of the individual and the prevention
action of the abuse of power on part of the administrators emphasized
through the list of principles and values. When s 1, 33 and 195 are read
together, we see they are aimed at creating a duty to achieve and
uphold a fair and honest administration, aimed at: increasing public
participation, weighing of decisions and actions against the
constitution and its principles and values and administrative
accountability.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Baxter (1984:301) The administrator must Simple authority
be “legally empowered description of concept
to perform the act”
Section 33 of 1-Everyone has the The enabling provision
Constitution right to administrative for Just administrative
action that is lawful, Action.
reasonable and
procedurally fair.2-
Everyone whose rights
have been adversely
affected by
administrative action
has the right to be given
written reasons.3-
National legislation
must be enacted to give
effect to these rights. a)
provide for review of
admin action by court
b) impose duty to give
effect to 1 & 2. c)
promote an efficient
administration.
Sectio 195 (1) of C Public administration A practical list of the
must be governed by constitutions
the “democratic values expectation on public
and principles administrators. The
enshrined in the C” meeting of this criteria
include the following. a) goes a long way to
promotion and achieve just
maintenance of administrative action
professional ethics, b)
effective use of
resources, c)
development
orientated PA, d) fair
provision of service, e)
encourage public
participation in policy-
making, f)
accountability, g)
transparency through
access of info, h)
career-orientated HR, i)
fair representation.
S 1 of Constitution (part Democratic government In complying with and
of) to ensure acting upon these
accountability, principles the
responsiveness and administration of the
openness. state is kept on a sound
legal footing and the
requirements of just
administrative actions
are met.

6.2 OTHER OVER-ARCHING TERMS USED TO REFER TO JUST ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Intra Vires/ Ultra vires Ultra vires-derived from common law to establish whether admin
action was not performed outside the boundaries of the power
granted to administrators. Literally means to “act beyond ones
powers” Intra vires- *it has no effect so therefore it is not legally
recognized, means within the power conferred in the administrator.
The wide and narrow Narrow approach requires the compliance to legislation only as an
approach in comparison intra vires wheras a wide approach realizes that even if procedurally
and legislatively even if the authority meets the legislation
requirements, ALL of law must be met before it is met. So today Intra
vires is not compliance with just the relevant legislation and its
procedural provisions, it requires compliance to the entire constitution
as well as PAJA, common law, other legislation, case law.
Applying one’s mind to the When the public functionary has not complied with all the
matter requirements for validity we could say that he or she has not “applied
his or her mind” to the task or function at hand. It is not an
independent requirement for validity but an over-arching concept that
incorporates all the requirements for valid administrative action.
Legality The principle originated at common law and was employed to point
towards all the legal requirements that administrators have to meet
and obey to act lawfully. Used by courts to determine whether
administrative action was not only authorized by law but also
performed in accordance with the prescripts laid down by the law. It
must serve and protect the public interest and respect fundamental
human rights.
*Legality requires that any administrative action should be in
accordance with the requirements of the law. Legality should therefore
be regarded as the basis of all administrative action.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Legal precedence for Fedsure v Greater
the over-arching Joburg T Metro Council
concept of legality. (1999) (CC) Chaskalson
held that the executive
“may exercise no power
and perform no
functions beyond that
conferred them by law

Study Unit 7

THE RIGHT TO LAWFUL ADMINISTRATIVE ACTION AS REQUIREMENT FOR VALID ADMINISTRATIVE


ACTION

7.1 THE CONCEPT OF LAWFULNESS

CONCEPT KEYPOINTS
Definition To grasp the development of the term lawfulness fully, and to
understand why it has become the cornerstone of administrative
validity, we also have to examine other sources of law, legislation,
common law, case law, sources outside section 33 (1), to understand
the practical function of the concept used long before its constitutional
provision. It is also because of these sources that it is then regarded as
an umbrella concept that covers all requirements for admin validity.
Describe term lawful In a narrow sense it relates to the enabling provisions of the concept
governing administrative action, but it is difficult to completely
separate it from other influences. They are also other independent
requirements for lawfulness, developed over the years in practice by
the public functionaries that perform the actions.
The meaning of “lawful” in Common law requirements of administrative legality prescribe that all
context of the right to admin requirements of law must be met when admin action is taken. One of
action in section 33 (1) the most important principles underpinning any democratic state and
our constitution is that all organs of state must comply with all law, the
power must be authorized by law. However this right is guaranteed in
the constitution for 1: to prohibit the adoption of any laws that will
exclude judicial control over admin action (s 33 (3) (a). Note the ouster
clause in pre-1994 gvt. The right to admin action in the new
constitution. Section 33 (1) entrenches the principle of legality which
demands full compliance with all law. *Lawful admin action and the
principle of legality are synonymous and encompass all the
requirements of valid admin action.
Note Strictly speaking, this means that the rights to admin action that are
“reasonable and procedurally fair” are superfluous, they are given
their own provisions to demonstrate their importance but in essence
both reasonableness and procedural fairness in common law form part
of the general requirements of admin legality.
PAJA and lawful admin action PAJA gives effect to the right of lawful admin action by providing the
judicial review of action that is unlawful. Examples of unlawful admin
action that can warrant judicial review include unauthorized
delegation, failure to comply with an empowering provision.
Lawfulness and the enabling Admin authority mainly derives from legislation, this is the enabling
or empowering statute act, and here we find commands and directives relating to the scope
and content or nature of admin power. It may also prescribe specific
procedures to be followed, requirements on administrator, knowledge,
qualification, etc.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Klaaren and Under our system of Goes to reaffirm the
Penfold(2008:6376) constitutional provision of the courts
supremacy….an act of right to review admin
parliament can action and do away
nolonger unjustifiably with the ouster clause
oust a court’s of pre-1994. s 33 (3) (a)
constitutional of constitution.
jurisdiction and deprive
the courts of their
review function to
ensure the lawfulness
of admin action

7.2 PROVISIONS DEALING WITH THE ADMINISTRATOR

CONCEPT KEYPOINTS
Definition The administrator’s authority and power to take administrative action
must be authorized by law. We find the description of exactly who the
administrator is as well as what he or she is allowed or authorized to
do in the empowering statute. Provisions usually include qualifications
of the administrator, geographical area where the administrator must
perform administrative action, the time at or within which the action
must be performed and the subject matter of the admin action. It also
deals with the scope or reach of administrator’s power.
Who is the administrator The administrator is a public functionary or institution performing
administrative action. In PAJA section 1 administrator is defined as
follows: “means an organ of state or any natural or juristic person
taking administrative action; two characteristics are that they are
always clothed in state authority in a superior capacity and have the
legal power of discretion.
Qualifications of the The empowering act often prescribes that the administrator must
Administrator possess the necessary qualifications, a certain status, qualification,
attributes, experience or knowledge. he or she cannot perform a valid
administrative action, if he does not possess the necessary
qualifications, even though his or her action may meet all the other
statutory requirements. A possession of qualification can then be said
to be the absolute minimum requirement, the threshold requirement
for any valid admin action. Note the liquor Act e.g.
The rule about delegation The question in this regard is whether such handing over/transfer of
power or delegation boils down to abandonment or abdication of his
or her powers. The general rule against delegation: delegates delegare
non potest roughly translated the person to whom a power is granted
may not delegate to another.
When is delegation When an original legislator, parliament in legislation expressly
permissible empowers an administrator (or by necessary implication, this is termed
sub-delegation. It is humanly impossible that the named administrator
perform all the functions sub-delegated to him by original legislator,
thus there are provisions made for delegations of powers just so the
departments are able to function. This is to effect quick and efficient
division of labor within administration. Section 238 is the empowering
provision for delegation. The rules if decision entails discretion it
cannot be delegated, however an administrator can delegate
implementation of a decision he has already made. He must not be
influenced by another body when he Is supposed to be applying his
own discretion, he can appoint a fact-finding committee who will
report to him with the data, hopefully objective data, and thereafter
he will make a decision. *Remember discretion does not mean
allowing the administrator to make arbitrary decisions; it is making a
choice on a number of outlined, acceptable options.
The various forms of The difference in this forms depends largely on the degree of transfer
delegation: mandate, of power by the original holder of authority. Deconcetration: type of
deconcetration and delegation that takes place within departments of state, broken down
decentralization by an internal hierarchical system where we encounter different
ranking administrators. Decentralisation: is when a senior
administrator transferring certain powers and activities to an
independent organ or body which carries these functions entirely in its
own name. The delegator cannot interfere with the activities of the
board, e.g a minister appoints a board to issue transport license or to
run a University. Control is by way of appointment of board members
or by way of appeal to or review by original delegator.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Liquor Act 27 of 1989 s No person shall be Shows the importance Awuney v Fort Cox
7 (2) appointed as of the qualification of Agricultural
chairperson or deputy the administrator lest College(2003) A board
chairperson under his decisions be invalid decided to suspend the
subsec 1 unless he or principal of a college
she possess such and eventually to
qualification in law. terminate his services.
The boards decisions
was set aside because
some of the members
were unqualified.
General common law Foster v Chairman,
rule on delegation of Commission for
authority of power by Administration (1991)
administrator. It goes to (C) When a power in
show that when a entrusted to a person
discretionary power is to exercise his own
granted, because of individual judgment and
one’s qualifications, discretion, it is not
knowledge and competent for him to
experience that was a delegate such power
requirement for them unless he has been
to be in that position in empowered to do so
the 1st place, it would expressly or by
not make sense to then necessary implication
delegate that function. by the empowering
statute.(common law)
Legal precedence on Shidiack v Union
delegation of a Gvt(1912) The
discretionary duty. This responsibility of
is the key judgment o exercising a discretion
subject. There is a can only be exercised in
judicial spirit to the a judicial spirit, then the
discretionary exercise responsibility cannot
of power, it has to be be discharged by
done by the qualified someone else. The
and selected person. person concerned has
the right to demand the
judgment to demand
the judgment of
specially selected
officers.
Section 38 of An executive organ of This is the
Constitution state in any sphere of constitutional provision
gvt may (a) delegate that empowers and
any power or function controls delegation
that is to be exercised within the executive.
or performed in terms
of legislation to any
other executive organ
of state provided that
the delegation is
consistent in terms of
which the power is
exercised or function is
performed.
Stresses the fact that University of Pretoria v
when decentralisation Minister of Education
is done and power is 1948(T) The court found
given to an outside that the minister did
body, the original not have power to
administrator has appoint a principal of a
limited power, he can university and that this
appoint board members power fell in the
and review their actions mandate of the
in appeal but cannot University Council. It
subdue them to his can be approved or
control. ratified by minister but
he could not substitute
their decisions for his.

Activity Answers

7.3 THE POWER OF THE ADMINISTRATOR

CONCEPT KEYPOINTS
Prescribed by law It must be clear by now, the administrator is not allowed to make a
decision that is not authorized by law. It is found descriptively in the
empowering statute. However, the common law rules have been
developed to help in determining the scope of an administrators reach
in the statute in question, the rules of interpretation, developed in
case law.
The geographical area or place Administrators must keep to the geographical area prescribed by
were administrator must empowering provisions
exercise power
The time within which the Administrator must keep to the prescribed time set out in the
administrator must exercise empowering provision; he has no authority to exceed this time. It
power. should also be prospective and not retrospective.
The object or subject matter Requirements which relate to subject matter relate to the object of the
of the power/authority admin-relationship. They ask the question in rationale or reason why
the administrator is exercising his power or the purpose why the
power is granted. What creates the admin relationship is the subject
matter. It is usually described in the empowering provision.
Prohibition of/restriction on There are different forms of abuse of power. Unauthorised or ulterior
the abuse of power by the motives: The administrator must use his power to fulfill the objective
administrator: Unauthorised set out in the empowering act, anything outside of these scope after
purpose. taking into cognizance developed purposes in practice that have
precedence in case law, statutory interpretations, is tantamount to an
abuse of power. When an administrator exercises his or her powers for
an unauthorised purpose, the legal force of the empowering statute is
extended in an authorized manner. In other words the administrator
takes over the function of the legislator, this goes against the whole
principle of legality as well as the doctrine of separation of powers.
Exercising power using an Used by administrator when proper procedure is too difficult or takes
unathorised procedure too long. This form of abuse of power actually undermines the law and
boils down to action in fraudem legis- fraudulent action
Exercising Power using As much as it Is similar to unauthorised purpose, we need to be
Ulterior Motives (Fraudem thorough and distinguish. Ulterior motive, when exercising the power
legis) in fraudem legis, the administrator intentionally and deliberately
evades the provisions of the empowering act. Note Dadoo v
Krugersdorp Municipality Council Case. It is possible to find both
fraudulent action and unauthorised purpose in the same action.
The Administrator and the This is an over-arching requirement were an administrator is required
exercise of power in bad faith to apply their mind to all the requirements of just and valid admin
(malafides) action. Malafide in the narrow sense refers to fraud, dishonesty,
corruption and in a wider sense means wrongful use of power.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Emphasises the need Oranjezicht Estates v
for the motive or Cape Town
purpose why a power Council(1906)(SC) It is a
was granted is well established
maintained and that the principle of South
purpose set out in the African Law that powers
empowering provision given to a public body
is carried out. for one purpose cannot
be used for ulterior
purposes which are not
contemplated at the
time when the powers
were conferred.
Perfect example to University of Cape Town
show unauthorised v Minister of Education
authority, even though & Culture (1988)(C)
the Minister acted in a Minister stopped
bonafide manner, his subsidy payment to
actions were invalid, University to on the
like we said, one can basis that the Uni had
determine this also by to 1st maintain law and
the outcome f the order on campus, the
decisions, withholding Uni argued that the
the funds would affect subsidies were not used
the Uni’s delivery of to promote law and
sound tertiary order but rather tertiary
education which as the education, court ruled
purpose of the funds in in favour of Uni and
the 1st place. The declared Ministers
question is not his actions invalid.
intention, it’s the
outcome.
A number of methods Rikhoto v East Rand
to determine this are Admin Board(1983)(W)
used here. For one, the The admin board had
purpose of the implemented Blacks
empowering provision, Consolidation Act in
probably interpretation such as way, relying on
as well. Principle of the call-in procedure to
legality in common law. restrict an applicant
from qualifying as a
resident for the area
where he had worked
for 10years, the court
rejected the AB reliance
on the call-in procedure
(yearly renewal of
contract) and that the
AB was not empowered
to frustrate the process
on basis of the call-in.
Classic case of good Cassiem v Commanding
intentions, wrong Officer Victor Verster
application. The Prison(1982)(C) The
empowering provision power to revoke
does not allow for such prisoner privileges in
sanction. Thus the the event of abuse of
action is invalid because those privileges I the
it is unauthorised. event of abuse of those
privileges, was
improperly used to
punish prisoners
He took a shortcut Van Coller v
instead of doing things Administrator
properly, he took away Transvaal(1960)(T)
the educators right to Director of education
be subjected to a DC transferred an educator
were he could have had to another post after
a chance to defend getting many complains
himself, rules of natural about that teacher,
justice. instead of instituting a
DC.
Dadoo v Krugersdorp
Municipality Council
Case(1920) An
examination of the
authority therefore
leads me to the
conclusion that a
transaction is in
fraudem legis when it is
designedly disguised so
as to escape the
provisions of the law,
but falls in truth within
these provisions.
Carried out an act in an Hart v Van
attempt to carry out the Niekerk(1991)(W) The
empowering provisions municipalities decision
of an act, it was a wrong to close swimming
use, wrong application pools in their attempt
of the law and also did to apply the
not think it through and amendments to the
probably out of Reservations of
frustration or taking Separate Amenities Act
advantage of the RSA was an improper
Act. purpose, they acted in
bad faith and did not
apply their mind.
Activity Answer
Study Unit 8

THE CONSTITUTIONAL RIGHT TO REASONABLE ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Definition All administrative action must have a reasonable effect, it will have a
reasonable effect when the administrator has exercised his/her
discretion in a proper way and the decision is based on objective facts
and circumstances. Reasonable admin action will be any justifiable
decision making, it is based on reason and not subjective opinion or
psychological temperament.
Unreasonableness Admin action can be deemed unreasonable when the decision maker’s
decision Is irrational and nonsensical. When there is no balance of
proportionality between the decision and the means employed to
reach that result.
The Common law and The courts have been hesitant to pronounce on the reasonableness or
reasonableness unreasonableness of admin action, reason for this is tension between
two positions. It is not the function of the courts to substitute its
decisions for those of the public administration. It has been argued
that this unreasonableness relates to merit or substance of the
decision, an area in which the courts should not intervene. When
reviewing the admin action on basis of unreasonableness, the courts
should act as a super administrator and not substitute the
administrator’s opinion for the courts. Anything else would be in
conflict with the doctrine of separation of powers. The task of
reviewing unreasonableness by the courts is not to determine or
question administrative policy or to determine whether a decision is
correct or if the courts agree with it, but to apply legal norms to ensure
that the procedure followed by the administrator was formally correct,
whether it was within the confines of law.
Some earlier decisions on The courts are reluctant to question unreasonableness as an
reasonableness independent requirement of valid admin action, hence the
employment of the principle of “symptomatic unreasonableness”: The
courts argue that unreasonableness is merely an indication for the
transgression of other valid admin action requirements. This also then
introduces the principle of “gross unreasonableness”: Courts held that
Judicial review is only permitted when the degree of unreasonableness
is so serious (gross), incomprehensible except on the grounds of
malafide, ulterior motives or the failure of application of one’s mind to
the matter. This narrow approach does not look at the effect of the
decision on the individual, but the state of mind of the administrator.
Justifiable administrative Rational requires the achievement of a justifiable balance between the
action in terms of section extent to which the rights have been affected and the reasons given
24(d) of the Interim for the decision. A justifiable decision is one based on reason,
Constitution whenever discretion is used a certain amount of subjectivity because
of personal experiences, expertise and knowledge cannot be avoided,
however this decision has to be such that an objective bystander can
go along with it and determine the reasoning behind it, even if he does
not agree with it or if he could have arrived at a different
determination. Question is, is the decision important enough to
outweigh the right of the individual?
The Courts approach to Note Standard Bank of Bophuthatswana v Reynolds(1995)(B) and Kotze
justifiability in section 24(d) of v Minister of Health(1996)(T) and Roman v Williams(1997)(C) A
Interim Constitution justifiable decision must be capable of objective substantiation. It must
meet the requirements of suitability, necessity and proportionality in
order to qualify as justifiable in relation to the reasons given.
Suitability, necessity and Suitability: requires the administrator in her/his discretion to choose
proportionality the means that are best appropriate for achieving the desired end. An
end set out in the statutory provision. Necessity: administrator must
take steps only that are necessary if any prejudice to an individual is
removed. Proportionality: Weighing up the advantages and
disadvantages to the public and affected party. The method must not
be out of proportion with the advantages. It requires the achievement
of a balance.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Goes to show that the Union Government v
courts will not question Union steel
discretion on company(1928(SA)
unreasonableness, “There is no authority
unless gross and none is cited that
unreasonableness can allows the intervention
be proved. of the courts on the
exercise of discretion
on the grounds of
unreasonableness
Davis and It requires This concept of
Marcus(1997:161) on administrative action to justifiability which is
section 24 (d) be justifiable in relation translated as
to reasons given, this reasonableness in the
introduces the New Constitution
requirement that admin introduced a new
decisions must be concept of rationalism
rational, coherent and in discretionary decision
capable of being making.
reasonably sustained
having due regard to
the reasons for the
decision. In short, there
has to be a reasonable
link between the
decision and the
reasons given for it.
Section 24(d) of I.C Every person shall have This gives rise to the
the right to (d) principle of
administrative action reasonableness in the
which is justifiable in new constitution. The
relation to the reasons birth of Just admin
given for it where any action.
of his or her rights are
affected or threatened.
The new modern Standard Bank of
approach over the old Bophuthatswana v
narrow approach. Reynolds(1995)(B) The
Mainly because it old narrow approach of
enforces the Bill of judicial review only
rights which apply in when there is gross
every single element of unreasonableness is no
law. The stringent long valid according to
application only on the new modern
gross unreasonableness approach, particularly
in now over. when we apply the
chapter 2 fundamental
rights that bind all
legislation, and
executive organs of
state. It is necessary for
the courts to adopt the
less stringent test of
unreasonableness
rather than the more
restrictive one of gross
unreasonableness.
This is prime example of Kotze v Minister of
the courts reviewing Health(1996)(T) DG’s
the discretionary refusal to grant early
procedure and not the retirement of an
correctness of the employee who had
actual decision. The continuous ill health
reasons, that he felt the because he did not
employee could still believe it would affect
perform his duties was his work, court found
incorrect and not the that decision was that
decision to keep him the reasons advanced
on. DG failed to apply for the action were not
her mind properly. supported by facts of
law.
In order to prove Roman v
justifiability in relation Williams(1997)(C)
to reasons given, the 3 Prisoner put under
requirements are correctional supervision
suitability, necessity and sought review of
and proportionality. decisions, court found
that “ Justifiability
should be objectively
tested.

Activity Answers

8.4 THE PRESENT POSITION IN TERMS OF THE 1996 CONSTITUTION AND THE PROVISIONS OF PAJA.

CONCEPT KEYPOINTS
Section 33 (1) and PAJA S 33(1) is far much simpler than its predecessor s 24(d) of IC since
Provisions subsection 1 simply requires that everyone has the right to
administrative action that is reasonable. When we consider the new
constitution makes no reference to the narrow approach
(subjective/objective) , the Standard Bank of Bophuthatswana v
Reynolds and the Roman v Williams judgments in which the modern
approach of application of all the chapter 2 fundamental rights in all
legislation and executive organs of state and a less stringent
application of reasonableness review rather than the old gross
reasonableness method, the new constitution has introduced a new
review of reasonableness of administrative decision making.
Reasonableness is no longer a symptomatic method but an
independent requirement of valid admin action.
PAJA and the right to PAJA gives effect to this right by giving an individual the capacity under
reasonable administrative s 6(1). We then review it under the reasonable person test, the
action Wednesbury test. Remember, difference between subjective state of
mind and objective consequence of decision.
The Constitutional Court’s Note: Bato Star Fishing v Minister of Environmental Affairs(2004)(CC)
Interpretation of the right to according to O’Regan J the factors relevant in determining whether a
reasonable administrative decision is reasonable include the nature of the decision, identity &
action expertise of decision-maker, range of relevant factors to the decision,
the reason given, the nature of the competing interests involved, the
impact of the decision on the lives of the affected.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Section 6 (1) giving right The exercise of power This is PAJA giving effect
to institute proceedings or the performance of to the right of
in a court to review the function authorized reasonable admin
admin action by the empowering action. The new
provision, in pursuance approach different from
of which the pre-1994 methods and
administrative action a further expression
was purportedly taken, from 24(d) of IC.
is so unreasonable that
no reasonable person
could have so exercised
the power or
performed the function.
Only the really bad Associated Provincial
instances are reviewed Picture Houses Ltd v
using the Wednesbury Wednesbury
test. Corporation(1948)(KB)
In the case that a
decision is found to be
so unreasonable that a
reasonable person
could not have come to
it, then the courts have
to intervene, but to
prove that case requires
something
overwhelming.
One has to look at a Bato Star Fishing v
decision that is Minister of
reviewable and apply Environmental
the test and find if the Affairs(2004)(CC)
decision is one a Decision dealt with the
reasonable allocation of Fishing
administrator would quotas by the Chief
have reached. Director. Bato
challenged the
allocation in terms of
the Marine Living
Resources Act. O’Regan
J found that the
Wednesbury test had to
be applied on sec 33 of
C and not really on the
language of PAJA s
6(2)(h) not literally.
Study Unit 9

THE RIGHT TO PROCEDURALLY FAIR ADMINISTRATIVE ACTION

9.1 INTRODUCTION: THE PURPOSE OF THE RIGHT TO PROCEDURAL FAIR ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Definition The right to procedural fairness is characterized as the right of
participation. This right entitles persons to participate in the decision-
making process in relation to administrative decisions that affect them.
Remember this right is about the procedure only and not the
substance of the decision taken. This requirement of acting fairly is
encapsulated in the common-law rule of “hear the other side” (audi
alteram partem) .This is duty on the administrator is recognized, not
only in section 33 (1) on just admin action, but in s 195 (1) on the basic
values and principles governing public administration.
Procedural fairness also improves the quality of decision making. The “I
don’t agree, but I can go along with it” factor.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Section 195 (1) (1)the provision of services The statutory
requires that public impartially, fairly, equitably provision for the right
admin must be and without to procedural fairness,
governed by bias.(2)responsiveness to the also note section 33.
democratic values and people’s needs and the
principles including; encouragement of public
participation.(3)accountability
of public administration
and.(4)fostering transparency
by providing the public with
timely, accessible and
accurate information.
Klaaren and The better informed the Other reasons why
Penfold(2008:63-81) decision making the less the procedural fairness is
potential for resentment and just good governance.
anger on the part of the
individual against whom the
particular decision has gone.
9.2 THE ORIGIN OF THE RIGHT TO PROCEDURALLY FAIR ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Origin-definition It is found in the common-law rules of natural justice. The “rules of
natural justice” is the collective terms of a number of common law
provisions and principles applicable to administrative enquiries and
hearings. They include allowing an individual the opportunity to be
heard, to counter allegations and for the administrator not to be
impartial and biased. They are meant to insure that the individual is
treated in a fair manner and that the administrator really applies his
mind to the matter. Age old principle “justice must be done, and must
seen to be done”

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Baxter(1984:538) He calls these the The purpose and
principles of good outcome of actually
administration that practicing procedural
serve 3 purposes:1- fairness and their
facilitate accurate and impact on the
informed decision- community and help
making.2-they ensure create a better
that decisions are made relationship, one that is
in the public interest.3- quantifiable between
preserve important the administrator and
procedural values. the people.

9.3 THE CONTENT OF THE COMMON-LAW RULES OF NATURAL JUSTICE

CONCEPT KEYPOINTS
The audi alteram partem rule “to hear the other side” before a decision is taken, as interpreted and
developed by the courts(as all common law is): individual given an
opportunity to be heard, individual must be informed of
considerations formed against him (the charges or the issue that is in
his interest), reasons must be given by the administrator for decision
taken. This right is not limited to formal administrative enquiries, but
applies in any situation where rights, privileges, liberties and even
legitimate expectation are at issue.
Sub-rules of audi alteram a)Proper notice of intended action- the individual must be given
partem rule proper notice of the forthcoming administrative action, whether this is
required by statute or not. It must include all necessary information to
help individual prepare. b)Reasonable and timely notice-the person
must be given reasonable notice to enable him/her to collect the
necessary information to prepare each case, this all depends on the
case, so the administrator has discretion, but remember, it has to be
reasonable.-Note Turner v Jockey Club(1974)(A)& Nisec Bpk v Western
Cape Provincial Tender Board(1997)(C).(c)Personal appearance-It is not
essential for the person to appear personally before the administrative
body unless, of course, a statute makes personal attendance
compulsory, but he should have the option or at least written
submissions.(d)Legal Representation-The right to legal representation
does not form part of the audi alteram partem rule, and can be
claimed only where it has been conferred in statute. There is no
general right to legal representation, however, note
Wiechers(1985:211).(e)Evidence and cross-examination-the right to
lead evidence and to cross-examine witnesses does not form an
inherent part of the rules of natural justice.(f)Public hearing/inquiry-
there is no absolute right to a public hearing, arguments flair btwn
public hearings helping the dissemination of discretionary power v
confidentiality for the sake of state security. So every case has to be
independently considered, consideration to the constitutional demand
of transparency, openness and fairness will usually work better for
public hearings.
The party must be informed of Any consideration or fact that may count against a person affected by
considerations which count a decision must be communicated to him/her to enable him/her to
against her defend the issue. Note Loxton v Kenhardt Liqour Licensing Board(1942)
and Down v Malan(1960)(A)
Reasons must be given by the This rule requires that the administrator give reasons for any decision
administrator for any decision taken. However it has not been consistently applied, not usually
taken included in enabling act and courts usually gave the discretionary right
to the administrator in question. However if it is enabled in statute, it
should be applied; failure to do that creates suspicion and
dissatisfaction from individual involved. Baxter says “the good
administrator provides reasons for decision even if there is no duty to
do so”.Note WC Greyling & Erasmus v Johannesburg Local
Transportation Board(1982)(A)

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Judicial precedence. Turner v Jockey
Discovery to a certain Club(1974)(A) The
acceptable extent hearing was set aside
expected. when the jockey had
suddenly been
confronted with
allegations that he had
not had a chance to
prepare for.(ambush)
The limitation and Nisec Bpk v Western
functional structure of Cape Provincial Tender
the right to reasonable Board(1997)(C) The
and timely notice. court found that the
right to a hearing does
not include a right to
complete discovery of
documents, it does
require that the
individual be furnished
with sufficient
information placing
them in a position to
sufficiently defend
themselves.
Wiechers(1985:211) In a purely factual The subjective opinion
hearing, the individual of Wiechers on the
does not need legal circumstances were
representation, but in a legal representation
highly technical should be afforded to
manner, he should be the individual. Each
entitled to one. The case should be
question is, was he approached
given adequate independently with the
opportunity to present intention being giving
his case. the individual the right
to fully defend himself.
Judicial precedence. Loxton v Kenhardt
Liqour Licensing
Board(1942) The
essential facts must be
given to the person to
enable him to reply.
The exception to the Down v Malan(1960)(A)
rule or the limit to the If the interested party
right, the common could reasonably have
sense to the stringent foreseen the facts
application. prejudicial to him would
be taken into
consideration, he
should act accordingly,
if he did not , the failure
would be attributed to
him.
Another exception to WC Greyling & Erasmus
the rule, discretionary v Johannesburg Local
decision making is key Transportation
here. In this case, it Board(1982)(A) the
simply was not on that court found that the
after such an application had made
overwhelming impressive submission
application, the in their application and
respondent simply the respondent had
would not be bothered refused to give reasons
to give reasons. This for the refusal of the
was grossly irregular. permit, court found
Creates suspicion and that even if they did not
dissatisfaction and does have the duty to
not aid any of the provide reasons, this
195(1) principles. did not justify them
ignoring the evidence
brought forward.

Activity Answers

9.3.2 THE NEMO IUDEX IN SUA CAUSA RULE (NO ONE SHOULD BE A JUDGE IN THEIR OWN CASE)
the rule against bias or prejudice

CONCEPT KEYPOINTS
Definition This is another rule of natural justice that says the decision-maker
must be, and must be reasonably perceived to be, impartial or
unbiased , this is known as the rule against bias. It requires that all
administrative institutions, functionaries exercise their powers in an
impartial and unbiased manner. The foundation of the nemo-principle
is rooted in the two “common-sense rules of good administration”, 1st
that for a decision to be sound it must not be tainted with bias, 2nd is
that the public faith is the admin process will be more if “justice is
done and seen to be done.” The common examples of bias are:
The presence of Note Rose v Johannesburg Local Road Transportation Board(1947)(W)
pecuniary/financial interest Financial Interests would obviously remove objectivity and impartiality.
The presence of personal Note Liebenberg v Brakpan Liquor Licensing Board(1944) and BTR
Interest Industries SA V Metal and Allied workers Union(1992)(A) Therefore one
is not required to show that there is in fact actual no bias or partiality
in the process, the criterion is that no reasonable person would have
had a perception or suspicion/apprehension of bias. In other words the
individual just has to prove a reasonable appearance of bias or
partiality rather than the existence of actual bias.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
A clear contravention of Rose v Johannesburg
this rule. Anyone could Local Road
smell the bias a mile Transportation
away. Judicial Board(1947)(W) The
precedence, not that its chairman responsible
needed really. for board that refused
permits was a director
to one of the three taxi
companies, he refused
to step down, the court
found that a reasonable
person would realize
the conflict of interest
and the bias of the
chairman.
Legal precedence on Liebenberg v Brakpan
personal interest in the Liquor Licensing
common law rule nemo Board(1944) The mayor
iudex in sua causa present at the awarding
of a liquor license were
his brother was an
applicant. The court
found that “ Every
person who undertakes
to administer justice, is
disqualified if he has a
bias which interferes
with his impartially, or
the suspicion of it.”
The test to determine BTR Industries SA V
bias. Metal and Allied
workers Union(1992)(A)
Court found that “in our
law the existence of a
reasonable suspicion of
bias satisfies a test that
an apprehension of the
real likelihood that the
decision maker will be
biased is not a
prerequisite for the
disqualification of bias”
9.4 THE CONSTITUTIONAL RIGHT TO PROCEDURALLY FAIR ADMINISTRATIVE ACTION.

CONCEPT KEYPOINTS
Overview Both the 1993 IC and the 1996 constitution’s guarantee the right to
procedural fair admin action. Therefore these rules of natural justice
are not only common law but also constitutionally empowered. Note
section 24 (b) of Interim C and section 33(1) of 1996 constitution.
The content of the right to It is not the codification of pre-constitutional law, or is it simply
procedurally fair confined to the principle of natural justice. The constitutional right to
administrative action procedural fairness is more comprehensive than the rules of natural
justice and may encompass aspects of fair procedure not yet covered
by common law. We have to look into these common law rules of
natural justice as developed and applied by the courts to give “flesh
and meaning” to the constitutional right.
The court’s interpretation of Note Kotze v Minister of Health(1996)(T).Denying a person a hearing
the constitutional right to who is entitled to the benefit of a fair hearing (a fair procedure) is a
procedural fairness before fatal irregularity, irrespective of the strength of the case against the
PAJA. person. Fraser v Children’s Court, Pretoria North(1996)(T) The
constitution always applies the procedural fairness of a decision
against the Bill of rights, whatever the legislative provision.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Section 24(b) of IC “Every person has the The empowering
right to procedurally provision for procedural
fair administrative fairness in the IC and in
action where any rights turn propelled it for the
or legitimate 1996 C.
expectations is affected
or threatened.”
Section 33(1) of C “Everyone has the right Current empowering
to administrative action provision for procedural
that is lawful, fairness.
reasonable and
procedurally fair”
Judicial Precedence. Kotze v Minister of
You cannot make a Health(1996)(T). The
decision on external court found that the
information that is not DG’s consideration of
part of the issue at information that did not
hand, if you are to form part of the
consider certain application amounted
information, make it to a denial of
part of the application procedurally fair admin
and allow the individual action. The applicant
to address it, lest you should have been given
conduct unfair a change to deal with
procedure. any other information
that did not form part
of his application but
was taken into account
when considering the
decision.
No matter how strong Fraser v Children’s
the case, no matter Court, Pretoria
how justifiable and North(1996)(T) The
correct the decision, it commissioner did not
can’t be said to be fair allow the father to
one key party is not make submission(to be
allowed to be heard. heard) before allowing
adoption, on review the
Judge found that this
was very irregular.

9.5 PAJA AND THE RIGHT TO PROCEDURALLY FAIR ADMINISTRATIVE ACTION

CONCEPT KEYPOINTS
Definition and overview When will admin action be procedurally fair, PAJA sets out
requirements for it. We need to distinguish between the provisions of
s 3 and 4 of PAJA. Section 3 deals with “procedurally fair administrative
action affecting a person. This sec applies to the individual admin law
relationship. Section 4 however takes care of admin action affecting
the public, the general admin action relationship and provides for
situations where the rights of the public are affected by admin action.
Note Walele v City of Cape Town(2008)(CC) giving effect to legitimate
expectations.
Legitimate expectation, its It is very much recognized in our case law and common law. Note
development at common law Jenkins v Government of RSA(1996)(TK) . Legitimate expectation comes
ad its recognition in s 3(1) of into the picture when a decision is taken and it will only be fair
PAJA towards the affected person that he is given the opportunity to be
heard, the problem comes when he has no existing right on which it
depends.
Legitimate expectation and its This doctrine was developed by British courts in a process of imposing
development at common law upon administrative decision-makers a general duty to act fairly. This
application the means that the rights of natural justice are extended to
cover a person who does not have any existing rights, but does have a
potential right or a legitimate expectation. The 1st ever SA case on this
was Everett v Minister of Interior (1981)(C) . This expectation ca be in
the form of either an express promise given by the authoritative body
or from a regular standing practice which is expected to continue
unchanged. Remember, legitimate expectation gives you a right to a
ruling and not the success of your application.
Decisions dealing with Note Claude Neon v City Council of Germiston (1995)(W) and Jenkins v
legitimate expectation after Government of RSA(1996)(TK) The courts stated that the doctrine of
1994 legitimate expectation has become part of our law. This means that
the doctrine will continue to exist and apply to situations in which the
application of procedural fairness is in issue.
Section 3 of PAJA and the Section 3 (2)(a)- decisions like Masetlha v President of the RSA shows
application of procedural that the very essence of the requirement to act fairly allows discretion
fairness and gives room for flexibility and practicability. S 3(2)(b)- The
peremptory/mandatory or minimum/core requirements for procedural
fairness. The right to procedural fairness administrative action must be
given a generous interpretation; the purpose of this generous
interpretation is to include any situations not covered by the Act.
Section 3 (3): The discretionary requirements for procedural fairness,
“In order to give effect to the right to procedurally fair administrative
action an administrator may, in his/her or its discretion, also give a
person referred to in subsection 1 an opportunity to, (a) obtain
assistance and, in serious or complex cases, legal representation,(b)
present and dispute information and arguments and(c) appear in
person.”
Section 3 (4): Departures from the requirements of fair procedure set
out in section 3(2). S 3 (4)(a) it reads “If it is reasonable and justifiable
in the circumstances an administrator may depart from any
requirements referred in subsection 2” This represents a limitation of
the right to fair procedure. Section 3 (4)(b) sets out the factors to be
considered to determine whether a decision is reasonable and
justifiable., they include (i) the objects of the empowering provision (ii)
the nature and purpose of the need to take administrative action (iii)
the likely effect of the administrative action (iv) the urgency of taking
the administrative action or urgency of the matter (v) the need to
promote an efficient administration and good governance.
Section 3 (5): it permits an administrator to follow a different
procedure, it is a discretionary power, subject to certain requirements,
these requirements are that the different procedure must be fair, and
that there must fair, and there is an empowering provision that
authorizes the administrator to follow a different procedure. It is up to
statutory interpretation to determine whether an empowering
provision to a particular procedure is fair or not.
Section 4 of PAJA and the It reads “ In cases where an administrative action materially and
application of procedural adversely affects the rights of the public, an administrator, in order to
fairness(decision affecting the give effect to the rights to procedural fair administrative action must
public) decide whether – (a) to hold a public enquiry in terms of subsection 2
(b) to follow a notice and comment procedure In terms of subsection 3
(c) to follow the procedure in both subsection (2) or (3) (d) where the
administrator is empowered by an empowering provision to follow a
procedure which is fair but different to follow procedure or (e) to
follow another appropriate procedure which gives effect to subsection
3.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Section 3 (1)of PAJA “Administrative action Gives effect to the right
which is materially and of admin action that is
adversely affects the set out in s 33(1) of the
rights of legitimate constitution in an
expectations of any individual admin law
person must be relationship
procedurally fair”
Section 4 (1) of PAJA “In cases where an Gives effect to the right
administrative action of admin action set out
materially and in s 33(1) of the
adversely affects the constitution in a public
rights of the public, an admin law relationship.
administrator, in order
to give effect to the
right of procedurally fair
administrative action
must”
The judge gives a more Walele v City of Cape
clear interpretation of Town(2008)(CC) The
the two, as the 1st one judge notes the
which included contradiction in regards
legitimate expectation to the provision of
in the constitution. legitimate expectation
which is found in the
definition of admin
action in section 1 of
the constitution but is
not present in s 3(1) of
PAJA which gives effect
to this right.
Proving the judicial Jenkins v Government of
precedence that existed RSA(1996)(TK) The
with the doctrine of court found that the
legitimate expectation. I doctrine of legitimate
think it’s because of its expectation had
mention in s 1, even become a part of our
though there is no common law, even
mention of it in the though no reference is
empowering provisions. made to it in s 33 of the
constitution.
This sets the Everett v Minister of
precedence. The 1st Interior(1981)(C) The
decision were court found that a
legitimate expectation person who has
was enforced. acquired a temporary
residence permit
cannot expect to
remain in the country
for longer than the
duration on the permit,
however, he has a
legitimate expectation
to be in the country for
that stipulated period
till the expiry date.
Judicial precedence. Claude Neon v City
When an expectation is Council of
created by repeated Germiston(1995)(W) A
practice that has tender procedure, the
somewhat become a court found that the
custom or unwritten applicant had a
policy, the authority has legitimate expectation
to meet it. to be notified when the
tender documents were
ready, failure to furnish
them with these by the
council resulted in
unfair administrative
action.
Section 3(2)(a) “A fair administrative This reflects the reality
procedure depends on that the content of
the circumstances of procedural fairness
each case”. varies in depending on
the contexts in which it
is applied.
Discretion is still there Earthlife Africa v D.G:
but it has to be Environmental Affairs
reasonable. and Tourism (2005)(C)
Case deals with the
intended construction
of a pebble bed
modular
reactor(PBMR),the
applicants challenge of
the decision to
authorize the
construction “What is
required to give effect
to the right of a fair
hearing is that the
interested party must
be placed in a position
to present and counter
evidence, they should
know the gist of the
case.’
Activity Answers

Study Unit 10

THE RIGHT TO BE GIVEN WRITTEN REASONS

10.1 GENERAL REMARKS ON THE IMPORTANCE OF REASONS

CONCEPT KEYPOINTS
In legislation it is first seen in Section 24 (c) of the Interim constitution,
then section 33(2) of the 1996 constitution and is given effect by
section 5 of PAJA. Written reasons are important to show how the
administrative body functioned when it took the decision and in
particular how the body performed the action, whether it acted
lawfully, unlawfully, rationally, arbitrarily, reasonably, unreasonably.
Refusing written reasons can be devastating to an individual’s case. It
is also important say in the event that an affect party wants to appeal
or review the decision, written reasons would go a long way to
facilitate that process.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Minority judgment but Bel Porto School
justifies written reasons Governing Body v
Premier Western
Cape(2002)(CC) The
court found that “ The
duty to give reasons
when the rights or
interests are affected
has been stated to
constitute an
indispensible part of
judicial review. The
individual can never be
able to tell whether the
decision is reviewable
unless reasons are
given. Giving reasons is
also promotion of good
governance.”

10.2 THE RIGHT REASONS IN TERMS OF SECTION 24(c) OF THE INTERIM CONSTIITUTION AND
SECTION 33(2) OF THE 1996 CONSTITUTION

CONCEPT KEYPOINTS
Requiring the administrator to give reasons for his decision is a
safeguard against any arbitrary or unreasonable decision-making. The
furnishing of reasons also promotes fairness and proper administrative
behavior, since unsound reasons or absence of reasons may form the
subject of review, it also ensures administrative transparency. Also
promotes the basic values and principles of good public administration
set out in s 195.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Section 24 (c) of IC “Every person has the Initial statutory
right to be furnished provision to a formerly
with reasons in writing common law rule
for administrative
action which affects any
of his/her rights or
interests(Unless they
have been made public”
Section 33(2) of C “Everyone whose rights Current statutory
have been adversely provision that also
affected by allows for the
administrative action enactment of section 5
has the right to be given of PAJA.
written reasons for the
decision.
10.3 WHO HAS A RIGHT TO REASONS?

CONCEPT KEYPOINTS
Definition In plain language the question is, what is the scope of the right to
written reasons? Turing to the constitution, 33 (2) says that it is only a
person whose right has been adversely affected by administrative
action has a right to written reasons. Some academics say that s 33(1)
reasons will be adversely affected if reasons are not given, look at the
constitutions tone of openness and accountability. Giving due
consideration to these s 33 (1) rights as a whole will make it essential
to give reasons.

10.4 PAJA AND THE REQUIREMENTS OF REASONS

CONCEPT KEYPOINTS
Section 5 provides for the furnishing of reasons as required by s 33 (2)
of the constitution. It gives this constitutional right, statutory form.
The request for reasons S 5(1) requires the provision of written reasons at the request of any
person adversely affected. It gives the administrator 90 days after
which the person became aware of the action.
The response of the S 5(2) The administrator is obliged to give that person adequate
administrator reasons within 90 days of receiving request. He must provide reasons.
Failure to provide adequate S 5(3) provides for a rebuttable presumption that if you are not
reasons in writing leads to an furnished with reasons the administrator made the decision without
“adverse inference” any. It can also be used by administrator not to provide reasons on the
grounds of “reasonable and justifiable circumstances” as subject to
subsection 4, as a departure from requirement to provide reasons.
Departure from the S 5(4) requires that this departure must be in “reasonable and
requirement to furnish written justifiable circumstances”. Since this is a limitation provisions, certain
reason: Reasonable and requirements, set out in s 5(4)(b) must be met, the same way as s 36 of
justifiable refusal to furnish constitution with the limitation clause.
reasons
A fair but different procedure S 5(5) Usually applied in the situation were an act, being the
in terms of section 5(5) empowering provision provides for a different procedure, provided its
fair, this is now prone to statutory interpretation by the courts.
Providing reasons without the In order to promote an efficient administration, an administrator may,
need for a request in terms of through the minister publish reasons through the government gazette.
section 5(1) This will be an automatic furnish in line with s 5(6)(a).
10.5 WHEN WILL REASONS BE ADEQUATE?

CONCEPT KEYPOINTS
Definition What will constitute adequate reasons will depend on the
circumstances of each and every case, that is, the context n which the
decision was taken.
The reasons should be adequate enough to apply the principle “even if
I don’t agree, am not happy with you and can properly come to a
different conclusion, I understand how you arrived at your decision
and can go with it”
“I am now in a position to decide whether that decision has involved
an unwarranted finding of fact or an error of law which is worth
challenging”
Length should depend upon considerations, the more complex the
matter was, the more drastic the decision was the more detailed the
written reasons should be. The degree of seriousness of decision taken
should determine particularity of reasons given.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Judicial precedence on Nomala v Permanent
giving adequate Secretary, Department
reasons, especially for of Welfare(2001)(E) a
the case of contesting termination of a
the decision. disability grant. She
was informed that her
reapplication was not
successful through a
standard form reasons
letter the court found
that “is adequate as a
mode of providing
reasons since it
discloses nothing, the
reasons and its form of
presentation do not
educate the beneficiary
about what to address
in her application or
appeal.”
Reasons should be Minister of
informative about the Environmental Affairs v
decision taken. Phambili
Fisheries(2003)(SCA
quoting the Bato
decision “ It is apparent
that reasons are not
really reasons unless
they are properly
informative. They must
explain why action was
taken or not taken”

Study Unit 11

CONTROL AND REMEDIES

INTERNAL CONTROL OF ADMINISTRATIVE ACTION

11.1 THE DISTINCTION BETWEEN CONTROL AND REMEDY

CONCEPT KEYPOINTS
Control It would be the regulation and supervision of administrative action,
comes into the picture when admin action is defective. Control ensures
that the admin action is valid. It can be in various forms, namely
internal control and Judicial control
Remedy The means of gaining legal amends of a wrong, “in a legal sense” An
order of court if admin action is found to have been invalid or
unlawful.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Baxter(1984:677) “What is important,
however, is that clear
distinction should be
drawn between the two
separate functions
which the court
performs, namely
reviewing the legality of
the action in question
and granting an
appropriate order if the
action is found to be
unlawful.
11.2 CONTROL WITHIN THE ADMINISTRATION ITSELF-INTERNAL CONTROL

CONCEPT KEYPOINTS
As much as judicial control is a more common form of control, Internal
control is just as important and happens to come first. In procedural
fairness one of the provisions as found in s 3 (2)(iv) of PAJA is to
provide a person with adequate notice of the possibility of internal
appeal, this is where internal control is exercised.
Forms of Internal control Control by supervisor or specially constituted bodies or institutions,
parliamentary control, control by public bodies and commissions such
as public protector and auditor-general.
Control by senior/supervisor What are their powers: they have the power to reconsider or
or specially constituted bodies reexamine the decision, to confirm it, or set it aside. Or vary the
or institutions decision (substitute by another). They may consider the validity,
desirability or efficacy of the admin action in question. They may also
consider policy (something the courts cannot do). They may review the
manner used to reach the decision. The decision is not binding, the
appeal process can go up from senior administrator to the other right
to the top.
Parliamentary control It is an important form of internal control since general administrative
policy and matters may be questioned in parliament. Every minister is
accountable the parliament on how their department is run. It takes
place in the following manners: tabling of reports by ministers (budget
reports for their departments) or parliamentary enquiries (question
time in parliament).
Public bodies and commissions The constitution has created a number of extrajudicial bodies that can
create awareness and knowledge in the public of their rights and the
enforceability. These are called in the constitution “state institutions
supporting constitutional democracy” (Chapter 9 institutions). They
are: The public prosecutor, the south African human rights
commission, the commission for the promotion and protection of the
rights of cultural, religious and linguistic communities, the commission
of gender equality, the auditor general, the electoral commission, the
independent authority to regulate broadcasting. These are regulated
by section 181. They are two very important ones
The Public Protector The office has been created to curb administrative excesses, in other
countries known as the “ombud”. He/she investigates citizens
complaints against the public administration and its officials.
Provisioned in section 182(1).Note subc 3 states that they may not
investigate court decisions. Subc 5, report must be open to public
except in the consideration of national security and circumstances set
out in national legislation.
The Auditor-General Relates to auditing and reporting on the accounts, financial statements
and financial management of all national and provincial state
departments and administrations and all municipalities. And any
institution funded by the National Revenue Fund. Set out in 188.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Section 92(2) of C “Members of the Provision for
Cabinet are collectively parliamentary control
and individually as a form of internal
accountable to control of
parliament for the administrative action.
exercise their powers
and the performance of
their functions.”
Section 181 (1)The bodies are These are the principles
independent and that both provide and
subject only to the govern the activities of
constitution and the law the chapter 9
(2)they are institutions.
impartial(3)they must
exercise their functions
without fear, favour or
prejudice.
Section 182(1) “to investigate any Empowering provision
conduct in respect of to the office of the
state affairs or in the public protector and
public administration in outlines function.
any sphere of gvt that
could be improper, or
could result in any
impropriety(b) to report
o that conduct(c) to
take proper remedial
action.

11.3 PAJA AND THE USE OF INTERNAL CONTROL

CONCEPT KEYPOINTS
One of the PAJA preconditions set before an affected person may take
administrative action on judicial review is that he or she has exhausted
internal remedies as required by section 7(2) of PAJA
Internal remedies must be In an internal appeal that is simple and straightforward, the higher
exhausted body only controls the excess of power or irregularity, but also
considers the merit of the case (whether the decision is right) and the
efficacy of the action (whether the decision is practicable or sensible).
The rational of the internal process is that it is much cheaper for all
parties involved and it saves the court from being unnecessarily
overloaded. Reasons to skip internal remedy, a mistake in law, a
malafide decision, prejudgment of case by administrator.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Section 7(2) of PAJA(a) “Subject to paragraph
(c), no court or tribunal
shall review an
administrative action in
terms of this Act unless
any internal remedy
provided for in another
law has 1st been
exhausted”
(b) “Subject to paragraph
(c) a court or tribunal
must if it is not satisfied
that any internal
remedy referred to in
paragraph(a) has been
exhausted, direct that
the person concerned
must 1st exhaust such
remedy b4 instituting
proceeding in a court or
tribunal for judicial
review i.t.o this Act”
(c) “A court or tribunal
may, in exceptional
circumstances and on
application by the
person concerned,
exempt such person
from obligation to
exhaust any remedy if
the court or tribunal
deems it in the interests
of justice.”
Study Unit 12

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION AND REMEDIES IN PROCEEDINGS FOR JUDICIAL


REVIEW

12.1 THE IMPORTANCE OF JUDICIAL CONTROL AND THE COURTS’ TRADITIONAL (COMMON LAW)
FUNCTION OF CONTROLLING ADMINISTRATIVE ACTION THROUGH REVIEW

CONCEPT KEYPOINTS
Judicial control allows for the validity of legislation and/or admin
action to be challenged in a court. The judiciary must make sure that
the executive and the legislature comply with the constitution. The
courts should remain independent and not be messed with s 165(3) of
C. Even before 1994, the courts had an inbuilt power of administrative
review.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Gives the common law Johannesburg
right of the courts to Consolidated
review admin action Investment Company v
even before it was Johannesburg Tow
legislatively provided Council (1903)(TS)
before. “Whenever a public
body has a duty
imposed on it by statute
and disregards
important provisions of
the statute, or is guilty
of gross irregularity or
clear illegality or clear
illegality in the
performance of the
duty, this court may be
asked to review the
proceedings
complained of and set
aside or correct them.
This is not a special
machinery created by
legislature, it is a right
inherent in the court”.
12.2 THE ‘CONSTITUTIONALISATION’ OF ADMINISTRATIVE ACTION AND JUDICIAL REVIEW

CONCEPT KEYPOINTS
The common law rules of admin action have now been
entrenched in the constitution, section 33, these are the
fundamental rights of common law in admin action.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Currie and De “The constitutional This goes to show
Waal(2005:644-645) right to just admin that the principle of
action entrenches just admin action in
fundamental section 33 of the
principles of constitution was
administrative law somewhat simply a
that were developed developed
by the courts in the codification of the
exercise of their fundamental rights to
common-law review admin action in
powers” common law.
This removes the Pharmaceutical
responsibility or the Manufacturers Ass of
competence of SA v:In re Parte
reviewing admin President of the
action by the courts RSA(2000)(CC) The
from the high court’s court found that “the
to the constitutional control of public
court, by the basis power by the courts
that, this has always through judicial
been a constitutional review has always
matter, only before been a constitutional
the adoption of the matter, prior to the
constitution, it was adoption of the IC and
done by the courts on C this control was
the common law exercised by the
principles of admin courts through the
action, now that the application of
constitution is that, common law
providing in statute constitutional
for this review, it is principles”
no longer necessary
for the lower courts
to feel that void.
12.3 THE GROUNDS FOR JUDICIAL REVIEW IN TERMS OF SECTION 6 OF PAJA

CONCEPT KEYPOINTS
It makes provision for the judicial review of administrative
action of section 33(3)(a) of constitution. There are grounds in
which anyone can found their admin action review provided
for in section 6(2) of PAJA
The decision maker 6 (2)(a) The authority of the decision maker, geographical limits,
qualifications, time limits, exceeding objective or purpose of
empowering provision, unauthorized delegation, Nemo iudex
in sau causa.
The manner In which decision Non-compliance with formal requirements, a mandatory and
was taken 6 (2) (b)-(e) material procedure or condition prescribed by an empowering
provision was not complied with, was the decision justifiable,
reasonable, rational, and procedurally fair, and was action
taken at all? Decision taken for unauthorized reasons, or
ulterior purpose, taking into account irrelevant considerations
or not considering relevant ones.
The administrative action itself This looks at the action itself: contravening the law or its
6 (2) (f)-(i) authorization by empowering provision, is it rationally
connected to (aa) the purpose for which it was taken, (bb) the
purpose of the empowering provision (cc) then information
before the administrator (dd) the reasons given for it by the
administrator (g) the failure to take a decision (h)
unreasonable action (i) action otherwise unconstitutional or
unlawful.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Section 6 of PAJA “Any person may PAJA provision to
institute proceedings admin action review
in a court or tribunal as set out in section
for the review of an 33(3)(a).
administrative action”
12.4 THE VARIOUS FORMS OF JUDICIAL CONTROL

CONCEPT KEYPOINTS
They are other forms of judicial review outside of judicial
review. These include statutory appeal, judicial review,
interdict, mandamus, declaratory order, defence in criminal
proceedings
Statutory appeal An appeal may be lodged only against a final decision or final
order, not against a provisional or interlocutory order. The
provision governing the power of the courts to examine admin
action on appeal, the requirements for appeal, the time within
which the appeal must be noted and so on, laid down in the
empowering statute. it will also determine the extent of the
appeal. Either against the facts, or the question of the law.
Judicial Review While the courts(ordinary courts) do not have ordinary appeal
jurisdiction, they do have inherent review jurisdiction in terms
of common law. Judicial review is applied in the context of
legality, review of admin action in terms of the constitution,
review of admin action in terms of the provisions of section 6
of PAJA, review of the proceedings in/decisions of lower courts
in terms of the supreme courts act. Review in terms of
provisions of specific statutes. The grounds being infringement
of the bill of rights and requirements of valid action set out in s
6. NOTE: A review does not go into the merits of the case, it
reviews the manner in which the decision was taken, and
irregularities but the merits.
Interdict If an applicant fears and can prove that an action or impending
action by the administrator will affect his/her rights or
prejudice him/her, he may apply for an interdict restraining
the administrator from carrying out its action. The application
must be supported with, proof of a clear legal interest, proof
that there are no other satisfactory alternative remedies
available, urgency of matter.
Mandamus This is a remedy compelling the administrator to perform some
or other statutory duty. It does not stipulate an action, it just
compels to act.
Declaratory Order It is used where there is a clear legal dispute or legal
uncertainty regarding administrative action. It can be used to
determine whether actual or pending admin action is lawful. It
gives the court a definite answer on a matter.
Defence in Criminal At common law, the validity of an administrative action may
proceedings be challenged by raising its invalidity as a defence in criminal
law.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Wiechers(1985:265) “It is a decree This is simply a
whereby the definition of an
administrative organ Interdict on an
is ordered to desist administrative organ.
from an act or course
of conduct which is
causing direct
prejudice to the
applicant and
constitutes an
encroachment of
rights”
Simple case law for Mahambela v
the provision of Member of the
mandamus Executive Council for
Welfare, Eastern
Cape P Gvt(2003)(SE)
The applicant waited
nine months to be
granted a disability
grant, the courts
decided that this time
was unreasonable, a
mandamus order was
given

Activity Answers

12.5 PRECONDITIONS BEFORE TURNING TO JUDICIAL CONTROL

CONCEPT KEYPOINTS
There are various procedural requirements that must be met
before one is to challenge admin action. e.g the review
application must be brought to court timely, appeal may be
brought only after final decisions of the admin body.
The applicant must have locus Locus standi is legal standing, the capacity of a person to bring
standi a matter to court. The interest in the outcome, English
common law went with personal interest in the case, while
roman law went for actio popularis, meaning a public interest
as an individual to prevent public injustice. It’s also proven by
the type of admin relationship in that case, individual or public.
Locus standi i.t.o of s 38 of C The constitution has broadened the scope of locus standi of
individuals and groups to seek relief in matters involving
fundamental rights matters. Section 38 (a-e) (a) anyone acting
in their own interest (b) anyone acting on behalf of another
person who cannot act in their own name (c) anyone acting as
a member of, or in the interest of, a group or class of persons
(d) an association acting in the interests of its members.

LEGISLATION DESCRIPTION APPLICATION CASE LAW


Locus standi on admin Bamford v Minister of
relationship type Community of
applications. Community
Dev(1981)(C) An
individual’s interest
was recognized in a
general admin
relationship.
Section 38 of C “Anyone listed in this
section has the right
to approach a
competent court
alleging that a right in
the Bill of rights has
been infringed or
threatened and the
courts may grant
appropriate relief,
including a
declaration of rights”

12.6 PROCEDURE FOR JUDICIAL REVIEW UNDER PAJA

CONCEPT KEYPOINTS
Which court may review The high court does have inherent common law powers of
admin action? review. Other courts include the Con Court, by statutory
empowerment, section 167(6)(a), this subsec gives access to
the con court when the court gives permission, the high court
or similar courts, the magistrate courts specifically designed to
review admin action.
Procedure prescribed for the Review should be instituted within 180 days.
review of admin action
12.7 THE ORDERS MADE BY A COURT AS PRESCRIBED BY SECTION 8 OF PAJA

CONCEPT KEYPOINTS
In terms of section 8 (1) of PAJA, the courts or tribunal, in
proceedings for judicial review in terms of section 6(1) may
grant any order that is just and equitable. High Courts and Mag
courts have a right to this order as prescribed in 8(1). The Mag
court cannot examine the constitutionality of proclamations,
regulations and rules, their jurisdiction is limited to an
examination to the validity of admin action by any organ of
state, other than the president. The High Court, Supreme court
can declare unconstitutionality of admin action.

BY Nigel T. Sithole- 071 039 7526

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