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Adl2601 2016 notes
Administrative Law (University of South Africa)
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STUDY UNIT 1 DESCRIBING ADMINISTRATIVE LAW
GENERAL FEATURES OF ADMINISTRATIVE LAW
DEFINITION OF ADMINISTRATIVE LAW:
Administrative law = public law.
Regulates the activities of organs of state and natural or juristic persons that exercise public powers or perform public functions.
Regulating include:
1. prescribing the procedures to be followed when public powers are exercised or public functions performed; and
2. ensuring that such action is within the boundaries of the law.
3. Regulating also includes control over such action.
1.1.1 STATE AUTHORITY
This is the public power – state authority – 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 STATE authority could affect the rights or interests of the subordinate party.
1.1.2 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.
Usually it is in the form of a “decision” of the administrator.
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1.1.3 JUST ADMINISTRATIVE ACTION
This is the manner in which any administrative action must be performed by the organ of state or natural or juristic person in exercising state authority.
The Constitution imposes a duty on all administrators exercising public power to:
act lawfully, and
reasonably,
to follow fair procedures, and
to give written reasons
when the rights of any person in the subordinate position are adversely affected.
1.1.4 CONTROL OF ADMINISTRATIVE ACTION
This is the means of correcting or rectifying administrative action that is not just/fair – when administrative action is not in line with the prescriptions of the law.
SCENARIO ADMIN LAW YES REASON
OR NO
Irene lives in an informal settlement, but her name is on the waiting list for a The municipality, via its director of housing, is in a position of authority and is
house. She is informed by the municipality’s director of housing that a low- capable of exercising that authority. Irene is in a subordinate position. Authority
cost house is available for occupation. A week before she moves into her YES must be exercised in a certain way that is within the boundaries of the law. From the
new house she is informed by the director that the house has been facts it does not seem as if the director has acted and
allocated to someone else. exercised his power in such a manner.
The Department of Transport buys five cars from the car company, Luxury Although the Department of Transport, a government department is involved – Dan,
NO
Cars. The contract of sale is concluded by Dan, the administrator at the head an administrator in the Department is acting on behalf of the department – the
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of the department’s procurement section – the section dealing with the Department is not acting from a position of authority when it buys cars from a car
buying of goods. dealer. The contractual parties, the Department and the car dealer act within an
ordinary contractual (equal) relationship. Private law is therefore involved since
none of the parties may force the other into signing the deal and they therefore
contract on equal terms
The director-general of health has been given medical opinions to the effect She is under the authority of the director-general, the head of the department. The
that one of the senior officials in the department has a medical condition director-general exercises authority over the official and she is subject to the power
which makes her unfit for continued government service. However, the of the director-general. However, she is not without protection and is protected by
YES
director-general refuses to allow the official to go on early pension since he the law against the abuse of superior power.
is not satisfied that, given the nature of the official’s duties, a discharge on
medical grounds is called for.
Downloaded by Tinomuda Nhongo ()
Adl2601 2016 notes
Administrative Law (University of South Africa)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
STUDY UNIT 1 DESCRIBING ADMINISTRATIVE LAW
GENERAL FEATURES OF ADMINISTRATIVE LAW
DEFINITION OF ADMINISTRATIVE LAW:
Administrative law = public law.
Regulates the activities of organs of state and natural or juristic persons that exercise public powers or perform public functions.
Regulating include:
1. prescribing the procedures to be followed when public powers are exercised or public functions performed; and
2. ensuring that such action is within the boundaries of the law.
3. Regulating also includes control over such action.
1.1.1 STATE AUTHORITY
This is the public power – state authority – 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 STATE authority could affect the rights or interests of the subordinate party.
1.1.2 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.
Usually it is in the form of a “decision” of the administrator.
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
1.1.3 JUST ADMINISTRATIVE ACTION
This is the manner in which any administrative action must be performed by the organ of state or natural or juristic person in exercising state authority.
The Constitution imposes a duty on all administrators exercising public power to:
act lawfully, and
reasonably,
to follow fair procedures, and
to give written reasons
when the rights of any person in the subordinate position are adversely affected.
1.1.4 CONTROL OF ADMINISTRATIVE ACTION
This is the means of correcting or rectifying administrative action that is not just/fair – when administrative action is not in line with the prescriptions of the law.
SCENARIO ADMIN LAW YES REASON
OR NO
Irene lives in an informal settlement, but her name is on the waiting list for a The municipality, via its director of housing, is in a position of authority and is
house. She is informed by the municipality’s director of housing that a low- capable of exercising that authority. Irene is in a subordinate position. Authority
cost house is available for occupation. A week before she moves into her YES must be exercised in a certain way that is within the boundaries of the law. From the
new house she is informed by the director that the house has been facts it does not seem as if the director has acted and
allocated to someone else. exercised his power in such a manner.
The Department of Transport buys five cars from the car company, Luxury Although the Department of Transport, a government department is involved – Dan,
NO
Cars. The contract of sale is concluded by Dan, the administrator at the head an administrator in the Department is acting on behalf of the department – the
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
of the department’s procurement section – the section dealing with the Department is not acting from a position of authority when it buys cars from a car
buying of goods. dealer. The contractual parties, the Department and the car dealer act within an
ordinary contractual (equal) relationship. Private law is therefore involved since
none of the parties may force the other into signing the deal and they therefore
contract on equal terms
The director-general of health has been given medical opinions to the effect She is under the authority of the director-general, the head of the department. The
that one of the senior officials in the department has a medical condition director-general exercises authority over the official and she is subject to the power
which makes her unfit for continued government service. However, the of the director-general. However, she is not without protection and is protected by
YES
director-general refuses to allow the official to go on early pension since he the law against the abuse of superior power.
is not satisfied that, given the nature of the official’s duties, a discharge on
medical grounds is called for.
Downloaded by Tinomuda Nhongo ()
