LU2
Legal relationship = 2 or more subjects enter
Governed by law
Public-law relationship:
Legal Subject Bearer of State authority
Exercises State authority over
Legal Subject Private person (legal position subject to the State’s discretion)
Public-law regulates: The organisation of the state.
The relationships between the State and the individual.
The exercise of State authority by the government.
Public-law = vertical relationship
Someone in authority
A subordinate / lower ranking individual
Private-law is concerned with relationships between individuals on an equal footing.
Parent & Child = Private law
Private-law = Horizontal relationship
Individual Individual
Characteristics of the Administrative-law relationship:
(1) At least one of the legal subjects must be a person or body exercising power.
(2) Position of power must be held by a person or body clothed with State authority, who is able
to exercise that authority.
The authoritative person or body must have the power to prescribe, restrain, or allow the other person
to act in a specific way. Leaving the other subject in a subordinate position.
The distinction between a general & an individual administrative-law relationship:
1 The general or Objective relationship:
Applies to a specific group of people (not the general public) through general Legal Rules (e.g.
Legislation and regulations). These rules apply impersonally with the group and cannot be created
or changed by individual decisions.
2 The Individual or Subjective relationship:
An individual (or subjective) administrative-law relationship applies specifically to identifiable
individuals and is based on individual administrative decisions. These relationships vary by case
and are not generally altered by new legislation unless explicitly stated. There is a legal
presumption that such relationships aren't affected retroactively.
,LU3:
The legal subjects of the administrative-law relationship
The identification of the authoritative party in the administrative-law relationship:
section 239 of the Constitution provides a broad legal definition of an "organ of state”
✅ Section 239 Definition of “Organ of State”
An organ of state means:
(a) Any department of state or administration in the national, provincial, or local sphere of government.
(b) Any other functionary or institution that:
(i) exercises a power or performs a function in terms of the Constitution or a provincial constitution, or
(ii) exercises a public power or performs a public function in terms of any legislation.
➡️ Excludes: Courts and judicial officers
🏛️ Understanding Section 239(a): Government Departments
National sphere: Includes departments like Health, Education, Home Affairs, and their
ministers, deputy ministers, and officials (public servants). The President and Deputy
President are also organs of state when performing governmental duties.
Provincial sphere: Includes Premiers, MECs, and provincial departments.
Local sphere: Includes municipalities and municipal councils that exercise executive authority.
⚠️ Not all functions performed by these actors are administrative—some are executive or
constitutional.
🏢 Understanding Section 239(b): Other Functionaries or Institutions
•This part broadens the definition to include non-governmental bodies or persons if they:
Exercise powers or functions under the Constitution (or provincial constitution), or
Exercise public power or perform public functions under legislation.
✅ Key Insight: Even private institutions can be considered organs of state if they perform public
functions, such as service delivery or regulation under legislative authority.
To determine if a party is an organ of state, ask:
Is the functionary exercising a public power or performing a public function?
Is it being done in terms of legislation (or a constitution)?
As explained in SARFU (2000) and by Hoexter, the decisive factor is not who is acting, but what
function is being performed:
“What matters is not the functionary but the function.”
The role of associations, clubs and other “private” organisations:
1. Nature of These Bodies:
Examples include sports clubs (e.g. Mamelodi Sundowns), church associations, unions, and
jockey clubs (e.g. South African National Horseracing Authority).
They are voluntary, private, and non-statutory—not created by law and not organs of state.
However, they often exercise authority over members, creating relationships similar to public
law (authoritative vs. subordinate).
________________________________________
2. Why Administrative Law May Still Apply:
Even though they are private, common-law administrative principles can apply.
This is because of the power imbalance between members and the organisation's leadership.
Courts enforce fair procedures (e.g. natural justice) based on the contractual constitution or
rules of the association.
________________________________________
3. Does the Constitution or PAJA Apply?
• It's unclear whether modern constitutional administrative law or PAJA applies in all cases.
• The public interest element is critical in deciding this.
What is the purpose of the Promotion of Administrative Justice Act (PAJA)?
, (1) PAJA ensures that administrative actions by public bodies are lawful, reasonable, and
procedurally fair.
(2) It gives effect to the right to administrative justice under Section 33 of the Constitution of
South Africa.
(3) The Act provides for the following:
Right to be informed about decisions affecting rights and interests.
Right to reasons for administrative actions.
Right to fair procedures in administrative decision-making.
Judicial review of administrative actions that are unjust or improper
What are the key principles outlined in PAJA regarding administrative actions?
Procedural Fairness: Requires the public body to inform individuals affected by a decision and allow
them a chance to respond.
Lawfulness: Administrative actions must comply with the law.
Reasonableness: The decision taken must be reasonable in relation to the facts and the law.
Transparency: Public bodies must provide clear and understandable reasons for their actions.
________________________________________
How does PAJA address judicial review of administrative actions?
PAJA allows individuals to challenge administrative decisions through judicial review in court.
Grounds for review under PAJA include:
Unlawfulness (e.g., exceeding powers or violating rights).
Unreasonableness (e.g., irrational decisions).
Procedural unfairness (e.g., failure to follow due process)
The persons – natural or juristic – whose rights and interests are affected by the exercise
of authority
The administrative-law relationship is branded by authority and the exercise of public power,
where one party (the subordinate) must comply with the directives of a superior official or institute.
This relationship can involve both natural persons and juristic persons.
The subordinate party is not always outside the public sector; it can also be a lower-ranking
government official under the authority of a superior. In such cases, the superior official
exercises public power, and the subordinate is compelled to follow the instructions, making it a
public-law, administrative-law relationship.
The subordinate must obey the superior authority and may even be restricted in their actions
(e.g., Thami Educator case).
Is the subordinate person powerless in the authoritative relationship?
A person in a subordinate position is not powerless in an administrative-law relationship. They retain
their rights, privileges, and interests.
Those in authority, such as organs of state or individuals exercising public power, are required to act
lawfully and in the public's best interest.
Subordinates are protected by the law, including the Constitution, which promotes a culture of human
rights. Public authorities must comply with Section 33 of the Constitution and PAJA, ensuring their
actions meet legal requirements. If these conditions are not met, the subordinate can seek internal
remedies to hold the official accountable.
The object of or reason for the administrative-law relationship:
, The object of an administrative-law relationship refers to the reason why the legal subjects entered
into the relationship, essentially the issue that creates the legal bond between them.
In administrative law, this object is tied to administrative action, as it represents the subject matter of
that action.
The empowering legislation typically defines the specific object of the administrative action (e.g., the
tender submission to Telkom for telecommunication services).
Legal relationship = 2 or more subjects enter
Governed by law
Public-law relationship:
Legal Subject Bearer of State authority
Exercises State authority over
Legal Subject Private person (legal position subject to the State’s discretion)
Public-law regulates: The organisation of the state.
The relationships between the State and the individual.
The exercise of State authority by the government.
Public-law = vertical relationship
Someone in authority
A subordinate / lower ranking individual
Private-law is concerned with relationships between individuals on an equal footing.
Parent & Child = Private law
Private-law = Horizontal relationship
Individual Individual
Characteristics of the Administrative-law relationship:
(1) At least one of the legal subjects must be a person or body exercising power.
(2) Position of power must be held by a person or body clothed with State authority, who is able
to exercise that authority.
The authoritative person or body must have the power to prescribe, restrain, or allow the other person
to act in a specific way. Leaving the other subject in a subordinate position.
The distinction between a general & an individual administrative-law relationship:
1 The general or Objective relationship:
Applies to a specific group of people (not the general public) through general Legal Rules (e.g.
Legislation and regulations). These rules apply impersonally with the group and cannot be created
or changed by individual decisions.
2 The Individual or Subjective relationship:
An individual (or subjective) administrative-law relationship applies specifically to identifiable
individuals and is based on individual administrative decisions. These relationships vary by case
and are not generally altered by new legislation unless explicitly stated. There is a legal
presumption that such relationships aren't affected retroactively.
,LU3:
The legal subjects of the administrative-law relationship
The identification of the authoritative party in the administrative-law relationship:
section 239 of the Constitution provides a broad legal definition of an "organ of state”
✅ Section 239 Definition of “Organ of State”
An organ of state means:
(a) Any department of state or administration in the national, provincial, or local sphere of government.
(b) Any other functionary or institution that:
(i) exercises a power or performs a function in terms of the Constitution or a provincial constitution, or
(ii) exercises a public power or performs a public function in terms of any legislation.
➡️ Excludes: Courts and judicial officers
🏛️ Understanding Section 239(a): Government Departments
National sphere: Includes departments like Health, Education, Home Affairs, and their
ministers, deputy ministers, and officials (public servants). The President and Deputy
President are also organs of state when performing governmental duties.
Provincial sphere: Includes Premiers, MECs, and provincial departments.
Local sphere: Includes municipalities and municipal councils that exercise executive authority.
⚠️ Not all functions performed by these actors are administrative—some are executive or
constitutional.
🏢 Understanding Section 239(b): Other Functionaries or Institutions
•This part broadens the definition to include non-governmental bodies or persons if they:
Exercise powers or functions under the Constitution (or provincial constitution), or
Exercise public power or perform public functions under legislation.
✅ Key Insight: Even private institutions can be considered organs of state if they perform public
functions, such as service delivery or regulation under legislative authority.
To determine if a party is an organ of state, ask:
Is the functionary exercising a public power or performing a public function?
Is it being done in terms of legislation (or a constitution)?
As explained in SARFU (2000) and by Hoexter, the decisive factor is not who is acting, but what
function is being performed:
“What matters is not the functionary but the function.”
The role of associations, clubs and other “private” organisations:
1. Nature of These Bodies:
Examples include sports clubs (e.g. Mamelodi Sundowns), church associations, unions, and
jockey clubs (e.g. South African National Horseracing Authority).
They are voluntary, private, and non-statutory—not created by law and not organs of state.
However, they often exercise authority over members, creating relationships similar to public
law (authoritative vs. subordinate).
________________________________________
2. Why Administrative Law May Still Apply:
Even though they are private, common-law administrative principles can apply.
This is because of the power imbalance between members and the organisation's leadership.
Courts enforce fair procedures (e.g. natural justice) based on the contractual constitution or
rules of the association.
________________________________________
3. Does the Constitution or PAJA Apply?
• It's unclear whether modern constitutional administrative law or PAJA applies in all cases.
• The public interest element is critical in deciding this.
What is the purpose of the Promotion of Administrative Justice Act (PAJA)?
, (1) PAJA ensures that administrative actions by public bodies are lawful, reasonable, and
procedurally fair.
(2) It gives effect to the right to administrative justice under Section 33 of the Constitution of
South Africa.
(3) The Act provides for the following:
Right to be informed about decisions affecting rights and interests.
Right to reasons for administrative actions.
Right to fair procedures in administrative decision-making.
Judicial review of administrative actions that are unjust or improper
What are the key principles outlined in PAJA regarding administrative actions?
Procedural Fairness: Requires the public body to inform individuals affected by a decision and allow
them a chance to respond.
Lawfulness: Administrative actions must comply with the law.
Reasonableness: The decision taken must be reasonable in relation to the facts and the law.
Transparency: Public bodies must provide clear and understandable reasons for their actions.
________________________________________
How does PAJA address judicial review of administrative actions?
PAJA allows individuals to challenge administrative decisions through judicial review in court.
Grounds for review under PAJA include:
Unlawfulness (e.g., exceeding powers or violating rights).
Unreasonableness (e.g., irrational decisions).
Procedural unfairness (e.g., failure to follow due process)
The persons – natural or juristic – whose rights and interests are affected by the exercise
of authority
The administrative-law relationship is branded by authority and the exercise of public power,
where one party (the subordinate) must comply with the directives of a superior official or institute.
This relationship can involve both natural persons and juristic persons.
The subordinate party is not always outside the public sector; it can also be a lower-ranking
government official under the authority of a superior. In such cases, the superior official
exercises public power, and the subordinate is compelled to follow the instructions, making it a
public-law, administrative-law relationship.
The subordinate must obey the superior authority and may even be restricted in their actions
(e.g., Thami Educator case).
Is the subordinate person powerless in the authoritative relationship?
A person in a subordinate position is not powerless in an administrative-law relationship. They retain
their rights, privileges, and interests.
Those in authority, such as organs of state or individuals exercising public power, are required to act
lawfully and in the public's best interest.
Subordinates are protected by the law, including the Constitution, which promotes a culture of human
rights. Public authorities must comply with Section 33 of the Constitution and PAJA, ensuring their
actions meet legal requirements. If these conditions are not met, the subordinate can seek internal
remedies to hold the official accountable.
The object of or reason for the administrative-law relationship:
, The object of an administrative-law relationship refers to the reason why the legal subjects entered
into the relationship, essentially the issue that creates the legal bond between them.
In administrative law, this object is tied to administrative action, as it represents the subject matter of
that action.
The empowering legislation typically defines the specific object of the administrative action (e.g., the
tender submission to Telkom for telecommunication services).
