Administrative Law Exam Notes BY Nigel T. Sithole-071 039 7526
Administrative Law Exam Notes BY Nigel T. Sithole-071 039 7526
Overview of Unit
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
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.
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
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.
Activity Answers
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.
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
Overview of Unit
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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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
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.
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.
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.
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.
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”
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)
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.
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.
Study Unit 10
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.
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.
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.
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.
Study Unit 11
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.
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.
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
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.
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.
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.
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
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.
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.