ADL2601 TEXT BOOK

,© 2019 University of South Africa

All rights reserved

Printed and published by the
University of South Africa
Muckleneuk, Pretoria

ADL2601/1/2020–2024

70728666

InDesign




HSY_Style

, CONTENTS

 Page
INTRODUCTIONix

Part 1: STATE AUTHORITY AND THE HOLDERS OF SUCH AUTHORITY1
LEARNING UNIT 1: Describing administrative law2
1.1 An overview of the general features of administrative law 2
1.1.1 State authority 2
1.1.2 Administrative action 3
1.1.3 Just administrative action 3
1.1.4 Control of administrative action 3
1.2 A list of general concepts and technical terms often encountered in
administrative law, and their explanation 5
1.3 What is administrative law? 8
1.4 A brief list of abbreviations encountered in administrative law sources 18
1.5 Conclusion18
LEARNING UNIT 2: The administrative-law relationship20
2.1 The characteristics of the administrative-law relationship 22
2.2 The distinction between a general and an individual administrative-
law relationship 24
2.2.1 The general or objective relationship 24
2.2.2 The individual or subjective relationship 24
2.3 Conclusion26
LEARNING UNIT 3: The legal subjects of the administrative-law
relationship27
3.1 The identification of the authoritative party in the administrative-
law relationship 27
3.2 The role of associations, clubs and other “private” organisations 32
3.3 The persons – natural or juristic – whose rights and interests are
affected by the exercise of authority 33
3.4 Is the subordinate person powerless in the authoritative relationship? 34
3.5 The object of or reason for the administrative-law relationship 35
3.6 Conclusion35
LEARNING UNIT 4: The sources of administrative law36
4.1 What are the sources of law? 36
4.2 The sources of administrative law 37
4.2.1 Binding or authoritative sources 38
4.2.2 Persuasive sources 46
4.3 Where to find administrative-law sources 47
4.4 How to find the sources of administrative law in a particular situation 48
4.5 Conclusion50

Part 2: ADMINISTRATIVE ACTION51
LEARNING UNIT 5: Administrative action52
5.1 The definition of “administrative action” 52

ADL2601/1(iii)

, PAGE


5.1.1 Section 1 of PAJA 52
5.1.2 Action that does NOT qualify as administrative action 58
5.1.3 Judicial interpretation of administrative action 63
5.1.4 Constitutional instruction (background to section 1) 64
5.2 The need to establish whether administrative action is involved 66
5.3 The classes of administrative action 67
5.3.1 The three classes of administrative action and the distinctive
characteristics of each 67
5.3.2 Separation of powers and three classes of administrative action 69
5.4 The legal force of administrative action 71
5.4.1 When does administrative action take effect? 71
5.4.2 Termination of the legal force of administrative action 72
5.5 Conclusion74

Part 3: JUST ADMINISTRATIVE ACTION75
LEARNING UNIT 6: Just administrative action – setting the scene76
6.1 Introductory remarks 76
6.2 An explanation of the concept of just administrative action 80
6.2.1 Section 33 of the Constitution 80
6.2.2 The principles and values of section 195(1) of the Constitution and
their relation to just administrative action 81
6.3 Other overarching terms used to refer to just administrative action 82
6.4 Conclusion86
LEARNING UNIT 7: The right to lawful administrative action as
requirement for valid administrative action87
7.1 Introductory remarks 88
7.2 The concept of lawfulness 89
7.2.1 PAJA and lawful administrative action 89
7.2.2 The meaning of “lawful” in the context of a right to lawful
administrative action in section 33(1) 89
7.2.3 Lawfulness as reflected in other provisions of the Constitution 91
7.2.4 Lawfulness and the enabling or empowering statute 91
7.2.5 Other legislation 92
7.3 Provisions dealing with the administrator 95
7.3.1 Introduction 95
7.3.2 Who is the administrator? 96
7.3.3 Qualifications of the administrator: proper appointment and other
provisions97
7.4 Delegation98
7.4.1 The rule about delegation 98
7.4.2 When is delegation of powers permissible? 99
7.4.3 The various forms of delegation 100
7.5 The powers of the administrator 106
7.5.1 The powers of the administrator prescribed by law 106
7.5.2 The geographical area or place where the administrator must
exercise power 107
7.5.3 The time within which the administrator must exercise power 107
7.5.4 The object or subject matter of the power or authority 108
7.5.5 Prohibition of or restriction on the abuse of power by the administrator109
7.5.5.1 Unauthorised or ulterior purpose110
7.5.5.2 Exercising power using an unauthorised procedure112

(iv)