Kaya Borkowski
Administrative Law
Semester 2 Notes
Administrative Law
Term 3
Key
Purple = readings
Blue = section titles
blue highlight = week number
Red = cases
Case in bold mentioned in the text = prescribed case
Week 1
Topics
- introduction
Reading
- Sections 33, 195 and 239 of the Constitution;
- The PAJA
- Chapter 7 of: Lauren Kohn & Hugh Corder ‘Administrative Justice in South Africa: An overview of our
curious hybrid’, Chapter 7 in Corder & Mavedzenge (eds) Pursuing Good Governance: Administrative
Justice in Common Law Africa (2019) Siberink.
Available at : https://www.kas.de/en/web/rspssa/single-title/-/content/pursuing-good-
governance-administrative-justice-in-common-law-africa#
- Lauren Kohn ‘The burgeoning constitutional requirement of rationality & the separation of powers: Has
rationality review gone too far?’ (2013) 130 South African Law Journal 810. Available at:
https://www.laurenkohn.co.za/wp-
content/uploads/2015/12/The_burgeoning_constitutional_requiremen.pdf
Introduction
Prescribed sections of the Constitution
Distribution of this document is illegal
, Kaya Borkowski
Distribution of this document is illegal
, Kaya Borkowski
What is AL?
- Admin law (AL) has a large domain. Applies to: environmental law, policing, licences, tax, town planning
- Manages relationship between the state and citizen with an emphasis on protecting the citizen
- AL tied to the nation’s state
- How does Conlaw and Admin law differ?
- AL has a constitutional character. It is not the ‘underdog’ of constitutional law but it is a better
reflection of the local (what is happening around us). It is, therefore, more significant for the
everyday citizen
- It is concerned with the daily business of the government: ‘the conduct of the bureaucracy in
carrying out the daily functions of the state which necessarily involves the application of policy,
usually after its translation into law, with direct and immediate consequences for individuals or
groups of individuals.’ - Greys Marine
- AL has its emphasis on a particular branch of the state system: public administration when
exercising administrative action.
- AA does not usually cover high policy-making organs of the executive (President, Cabinet, Deputy
Pres), but covers all governmental departments whether national or provincial.
- Essence: principles regarding regulation of regulation
- AL describes powers of the administration (what you may and must do) and provides remedies for
maladministration
- How is maladministration challenged? Judicial review and appeal
- Difference in judicial review and appeal?
- Both procedures pursuant to reconsidering a decision but they differ in that review does not go
into the manner of how the decision achieved was a process while appeal deals with the merits
- Rustenberg Platinum Mines: ‘the line between the review and appeal is notoriously difficult to draw’
- It can be hard to tell the difference between the two, but it's important for SOP reasons: the courts
are not democratically accountable like our lawmakers and executives are, who are elected to
make decisions for the people.
- Saying that a decision was "wrong" is a much bigger threat to the SOP than saying that the
process used to make the decision was wrong, since the final decision still lies with the politician or
administrator.
- Judicial review needs to be balanced against the need for administrative efficiency
- Admin review goes hand in hand with s32 and the right to access information.
- Balance between empowering officials and controlling them
- Appeal = correctness of the outcome
- Review = process to how outcome was reached
- Why has administrative law expanded so over the past 70 or so years and what is the practical
knock-on effect of this for state service delivery?
- The orthodox view was that the state must interfere as little as possible, it was not positivistic. This
has changed because the state must take positive steps (act effectively).
Distribution of this document is illegal
, Kaya Borkowski
- the ultra vires doctrine: courts had the right to determine whether the intention of the legislature
was being achieved when powers conferred on administrators were upheld.
- The Courts had “inherent review jurisdiction” to ensure public bodies acted intra vires.
- The knock-on effect is that this requires regulation (AL). The state called for privatisation for
various functions as they cannot do it all themselves. BUT privatisation does not offer an easy
escape from the rules of AL. The function rather than the functionary is what is relevant (but the
functionary is important to some extent to)
- The nature of the function is the most NB
- Government cannot be released from its human rights and ROL obligations simply because it
delegates it functions to other entities (AAA Investments)
- According to Mureinik, the right to admin justice represented a bridge from the culture of authority
(based on secrecy) to a culture of justification (based on participation and accountability): gave
new relevance to AL’s function as the power of judicial review flows not from common law
principles (often applies with no overarching coherence or consistency), but from the Constitution
itself.
- Despite the expanse of administrative law, would you say its social function is as significant now
as it was under apartheid? Why/ why not?
- Under apartheid, the parliament was supreme. There was a culture of authority and rule by law not
rule of law. AL served as a ‘mini BOL’ under apartheid. Certain liberal judges (eg. Corbett) used AL
to achieve social justice. Courts had inherent review jurisdiction.
- Previously, AL was the safeguard for human rights but now it no longer needs to be due to
constitutional supremacy
- 1934 AB Sachs case: “parliament may make any encroachment it chooses upon the life, liberty,
property of any individual subject to its sway. It is the function of the courts of law to enforce its will”
- We shifted to a culture of justification. Now, AL’s social function is less significant (not less
important though, it just has its own place and does not need to act as a ‘mini BOR’).
- Consider provisions in the SA Constitution that are relevant to administrative law.
- Section 1(c) Constitution: “(c) Supremacy of the constitution and the rule of law.”
- ROL
- Section 1(d): “Universal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability, responsiveness and
openness.”
- Section 7(2): The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
- Section 32: Access to information
- Section 33: Just administrative action
- CHAPTER 10: Public Administration.
Distribution of this document is illegal
, Kaya Borkowski
- Section 239: definition of organ of state. “organ of state” means—
(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) any other functionary or institution—
(i) exercising a power or performing a function in terms of the Constitution
or a provincial constitution; or
(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;
“provincial legislation” includes—
(a) subordinate legislation made in terms of a provincial Act; and
(b) legislation that was in force when the Constitution took effect and that is
administered by a provincial government.
- Excludes the judiciary
- Why does the term ‘administrative action’ carry particular significance?
- Pre PAJA definition: AA excludes all high level functions. Did not have a technical meaning
- Now: must be a final decision that is communicated and impacts your rights
- In Motau, the CC confirmed that the PAJA’s definition of ‘administrative action’, when read with the
definition of ‘decision’, consists of seven elements:
- a decision of an administrative nature
- by an organ of state or another person
- exercising a public power or performing a public function
- in terms of any legislation or an empowering provision
- that adversely affects rights
- that has a direct, external legal effect
- does not fall within any of the listed exclusions.
- NB because if AA then PAJA applies
Distribution of this document is illegal
Administrative Law
Semester 2 Notes
Administrative Law
Term 3
Key
Purple = readings
Blue = section titles
blue highlight = week number
Red = cases
Case in bold mentioned in the text = prescribed case
Week 1
Topics
- introduction
Reading
- Sections 33, 195 and 239 of the Constitution;
- The PAJA
- Chapter 7 of: Lauren Kohn & Hugh Corder ‘Administrative Justice in South Africa: An overview of our
curious hybrid’, Chapter 7 in Corder & Mavedzenge (eds) Pursuing Good Governance: Administrative
Justice in Common Law Africa (2019) Siberink.
Available at : https://www.kas.de/en/web/rspssa/single-title/-/content/pursuing-good-
governance-administrative-justice-in-common-law-africa#
- Lauren Kohn ‘The burgeoning constitutional requirement of rationality & the separation of powers: Has
rationality review gone too far?’ (2013) 130 South African Law Journal 810. Available at:
https://www.laurenkohn.co.za/wp-
content/uploads/2015/12/The_burgeoning_constitutional_requiremen.pdf
Introduction
Prescribed sections of the Constitution
Distribution of this document is illegal
, Kaya Borkowski
Distribution of this document is illegal
, Kaya Borkowski
What is AL?
- Admin law (AL) has a large domain. Applies to: environmental law, policing, licences, tax, town planning
- Manages relationship between the state and citizen with an emphasis on protecting the citizen
- AL tied to the nation’s state
- How does Conlaw and Admin law differ?
- AL has a constitutional character. It is not the ‘underdog’ of constitutional law but it is a better
reflection of the local (what is happening around us). It is, therefore, more significant for the
everyday citizen
- It is concerned with the daily business of the government: ‘the conduct of the bureaucracy in
carrying out the daily functions of the state which necessarily involves the application of policy,
usually after its translation into law, with direct and immediate consequences for individuals or
groups of individuals.’ - Greys Marine
- AL has its emphasis on a particular branch of the state system: public administration when
exercising administrative action.
- AA does not usually cover high policy-making organs of the executive (President, Cabinet, Deputy
Pres), but covers all governmental departments whether national or provincial.
- Essence: principles regarding regulation of regulation
- AL describes powers of the administration (what you may and must do) and provides remedies for
maladministration
- How is maladministration challenged? Judicial review and appeal
- Difference in judicial review and appeal?
- Both procedures pursuant to reconsidering a decision but they differ in that review does not go
into the manner of how the decision achieved was a process while appeal deals with the merits
- Rustenberg Platinum Mines: ‘the line between the review and appeal is notoriously difficult to draw’
- It can be hard to tell the difference between the two, but it's important for SOP reasons: the courts
are not democratically accountable like our lawmakers and executives are, who are elected to
make decisions for the people.
- Saying that a decision was "wrong" is a much bigger threat to the SOP than saying that the
process used to make the decision was wrong, since the final decision still lies with the politician or
administrator.
- Judicial review needs to be balanced against the need for administrative efficiency
- Admin review goes hand in hand with s32 and the right to access information.
- Balance between empowering officials and controlling them
- Appeal = correctness of the outcome
- Review = process to how outcome was reached
- Why has administrative law expanded so over the past 70 or so years and what is the practical
knock-on effect of this for state service delivery?
- The orthodox view was that the state must interfere as little as possible, it was not positivistic. This
has changed because the state must take positive steps (act effectively).
Distribution of this document is illegal
, Kaya Borkowski
- the ultra vires doctrine: courts had the right to determine whether the intention of the legislature
was being achieved when powers conferred on administrators were upheld.
- The Courts had “inherent review jurisdiction” to ensure public bodies acted intra vires.
- The knock-on effect is that this requires regulation (AL). The state called for privatisation for
various functions as they cannot do it all themselves. BUT privatisation does not offer an easy
escape from the rules of AL. The function rather than the functionary is what is relevant (but the
functionary is important to some extent to)
- The nature of the function is the most NB
- Government cannot be released from its human rights and ROL obligations simply because it
delegates it functions to other entities (AAA Investments)
- According to Mureinik, the right to admin justice represented a bridge from the culture of authority
(based on secrecy) to a culture of justification (based on participation and accountability): gave
new relevance to AL’s function as the power of judicial review flows not from common law
principles (often applies with no overarching coherence or consistency), but from the Constitution
itself.
- Despite the expanse of administrative law, would you say its social function is as significant now
as it was under apartheid? Why/ why not?
- Under apartheid, the parliament was supreme. There was a culture of authority and rule by law not
rule of law. AL served as a ‘mini BOL’ under apartheid. Certain liberal judges (eg. Corbett) used AL
to achieve social justice. Courts had inherent review jurisdiction.
- Previously, AL was the safeguard for human rights but now it no longer needs to be due to
constitutional supremacy
- 1934 AB Sachs case: “parliament may make any encroachment it chooses upon the life, liberty,
property of any individual subject to its sway. It is the function of the courts of law to enforce its will”
- We shifted to a culture of justification. Now, AL’s social function is less significant (not less
important though, it just has its own place and does not need to act as a ‘mini BOR’).
- Consider provisions in the SA Constitution that are relevant to administrative law.
- Section 1(c) Constitution: “(c) Supremacy of the constitution and the rule of law.”
- ROL
- Section 1(d): “Universal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability, responsiveness and
openness.”
- Section 7(2): The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
- Section 32: Access to information
- Section 33: Just administrative action
- CHAPTER 10: Public Administration.
Distribution of this document is illegal
, Kaya Borkowski
- Section 239: definition of organ of state. “organ of state” means—
(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) any other functionary or institution—
(i) exercising a power or performing a function in terms of the Constitution
or a provincial constitution; or
(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;
“provincial legislation” includes—
(a) subordinate legislation made in terms of a provincial Act; and
(b) legislation that was in force when the Constitution took effect and that is
administered by a provincial government.
- Excludes the judiciary
- Why does the term ‘administrative action’ carry particular significance?
- Pre PAJA definition: AA excludes all high level functions. Did not have a technical meaning
- Now: must be a final decision that is communicated and impacts your rights
- In Motau, the CC confirmed that the PAJA’s definition of ‘administrative action’, when read with the
definition of ‘decision’, consists of seven elements:
- a decision of an administrative nature
- by an organ of state or another person
- exercising a public power or performing a public function
- in terms of any legislation or an empowering provision
- that adversely affects rights
- that has a direct, external legal effect
- does not fall within any of the listed exclusions.
- NB because if AA then PAJA applies
Distribution of this document is illegal
