1 DESCRIBING ADMINISTRATIVE LAW .................................................................................... 2
2 THE SOURCES OF ADMINISTRATIVE LAW .......................................................................... 2
3 THE ADMINISTRATIVE LAW RELATIONSHIP ..................................................................... 4
4 THE LEGAL SUBJECTS OF THE ADMINISTRATIVE-LAW RELATIONSHIP ................. 5
5 ADMINISTRATIVE ACTION ....................................................................................................... 6
6 REQUIREMENTS FOR VALID ADMINISTRATIVE ACTION: JUST ADMINISTRATIVE
ACTION ...................................................................................................................................................... 10
7 THE RIGHT TO LAWFUL ADMINISTRATIVE ACTION AS REQUIREMENT FOR
VALIDITY .................................................................................................................................................. 12
8 THE RIGHT TO PROCEDURALLY FAIR ADMINISTRATIVE ACTION .......................... 17
9 THE CONSTITUTIONAL RIGHT TO REASONABLE ADMINISTRATIVE ACTION ..... 23
10 THE RIGHT TO BE GIVEN WRITTEN REASONS ................................................................. 25
11 CONTROL OF ADMINISTRATIVE ACTION .......................................................................... 27
,1 Describing administrative law
2006 Oct exam: What is administrative law?
Administrative law is the sum total of legal rules that grant people, or bodies in authority, the
power to take action; prescribe the procedures to be followed when taking such action; and
ensure that such action is within the boundaries of the law. It also provides for control over such
action.
2 The sources of administrative law
2.1 Sources
The sources of administrative law are the following:
Binding (authoritative) sources
CCCLAI
1. The Constitution (The Constitution of the Republic of South Africa 108 of 1996)
2. Legislation
3. Case law (judicial precedent)
4. Common law
5. Administrative practice (custom or usage)
6. International law
Persuasive sources
BPSF
7. Writings in books and journals expressing academic opinions
8. Policy documents such as Green and White Papers
9. Reports by “state institutions supporting constitutional democracy” such as reports of the
Human Rights Commission
10. Foreign law (comparative law).
2.2 Binding (authoritative) sources
2.2.1 The Constitution
The Constitution is supreme and no other law may be in conflict with it: thus it is the most
important and authoritative source of law in SA.
The Constitution sets the standard for all administrative conduct and the actions of every
administrative functionary or institution in South Africa.
The Constitution guarantees justice for the individual by demanding that all the requirements
for valid administrative action (lawfulness, reasonableness and procedural fairness) must be met.
2.2.2 Legislation
Legislation gives effect to constitutional provisions.
Most of our law is drafted in the form of legislation.
2.2.2.1 Original legislation
Original legislation is passed by:
1. Parliament in the national sphere of government:
a. The Promotion of Administrative Justice Act 3 of 2000 (PAJA)
b. The Promotion of Access to Information Act 2 of 2000
2. The nine provincial legislatures in the provincial sphere of government:
a. Gauteng Schools Education Act 6 of 1995
3. Elected local governments (municipal councils) in the local sphere of government
, a. By-laws
2.2.2.2 Subordinate legislation
Passed in terms of the original/enabling/empowering legislation: thus it must not conflict with
the provisions in the enabling statute.
Subordinate legislation is passed by:
1. Functionaries in the national sphere of government:
a. Proclamations of the President issued in terms of the empowering statute
b. Regulations made by ministers in terms of an enabling statute
2. Provincial sphere of government:
a. Regulations issued in terms of the School Education Act 6 of 1995
3. Local sphere of government:
a. Regulations in terms of relevant by-laws
2.2.3 Case law (judicial precedent)
Past judgments are binding on other courts in subsequent cases (stare decisis).
2.2.4 Common law
Not an important source of South African administrative law.
Many common-law rules are now included in legislation.
Examples of common-law rules of English law origin:
1. the principle of ultra vires
2. the development of the rules of natural justice
2.2.5 Administrative practice (custom or usage)
Custom as a source of administrative law is the exception rather than the rule.
2.2.6 International law
Not an important source of South African administrative law.
Dealt with in sections 39, 231-233.
2.3 Persuasive sources
2.3.1 Writings in books and journals expressing academic opinions
Courts often refer to academic opinions expressed in law journals and books.
2.3.2 Policy documents such as Green and White Papers
Green Paper: consultative document.
White Paper: the blueprint of the government's policy on various matters (i.e. GEAR)
Both express current government policy.
2.3.3 Reports by “state institutions supporting constitutional
democracy”
Institutions that report on administrative conduct and make recommendations to the legislature
on how to cure any excess in the exercise of authoritative power.
2.3.4 Foreign Law
Courts may consider foreign law.
, 2.4 Where to find administrative law sources
Legislation:
1. Government Gazette
2. Butterworths
3. Internet
Case law:
1. South African Law Reports
2. Butterworths Constitutional Law Reports (BCLR)
3. decisions of the Constitutional Court (CC) and Supreme Court of Appeal (SCA):
http://www.law.wits.ac.za
Articles dealing with Administrative law topics:
1. South African Public Law (SAPR/PL),
2. South African Journal on Human Rights (SAJHR)
Policy documents and the reports of government institutions:
1. http://www.polity.org.za
3 The administrative law relationship
3.1 The characteristics of the administrative-law relationship
1. At least one of the legal subjects must be a person or body who exercises power.
2. More important, the position of power must be held by a person or body clothed with
government (state) authority, and who is able to exercise that authority.
An administrative law relationship can exist between the person who exercises authority and:
1. a private individual in the subordinate position
2. a lower-ranking official in the same department.
Asked in 2006 & 2007 exam: Define an administrative-law relationship, including
the concepts of general and individual administrative-law relationships.
A: An administrative relationship exists between two or more people where at least one of the
subjects is a person or body clothed in state authority who is able to exercise that authority over
a person or body in a subordinate position whose rights are affected by the action. It is an
unequal relationship.
In a general administrative-law relationship the legal rules governing the relationship between
the parties apply to all the subjects in a particular group. It is created by, changed and
terminated by legislation.
An individual administrative-law relationship the rules apply personally and specifically between
the parties. The relationship is created by individual administrative decisions.
3.2 The distinction between a general and an individual
administrative-law relationship
3.2.1 The general (objective) relationship
The legal rules governing the relationship between the parties apply to all the subjects within a
particular group.
The general relationship is created, changed or ended by legislation
3.2.2 The individual (or subjective) relationship
Legal rules governing the relationship between the parties apply personally and specifically
between the parties.
The individual relationship is created by individual administrative decisions.
2 THE SOURCES OF ADMINISTRATIVE LAW .......................................................................... 2
3 THE ADMINISTRATIVE LAW RELATIONSHIP ..................................................................... 4
4 THE LEGAL SUBJECTS OF THE ADMINISTRATIVE-LAW RELATIONSHIP ................. 5
5 ADMINISTRATIVE ACTION ....................................................................................................... 6
6 REQUIREMENTS FOR VALID ADMINISTRATIVE ACTION: JUST ADMINISTRATIVE
ACTION ...................................................................................................................................................... 10
7 THE RIGHT TO LAWFUL ADMINISTRATIVE ACTION AS REQUIREMENT FOR
VALIDITY .................................................................................................................................................. 12
8 THE RIGHT TO PROCEDURALLY FAIR ADMINISTRATIVE ACTION .......................... 17
9 THE CONSTITUTIONAL RIGHT TO REASONABLE ADMINISTRATIVE ACTION ..... 23
10 THE RIGHT TO BE GIVEN WRITTEN REASONS ................................................................. 25
11 CONTROL OF ADMINISTRATIVE ACTION .......................................................................... 27
,1 Describing administrative law
2006 Oct exam: What is administrative law?
Administrative law is the sum total of legal rules that grant people, or bodies in authority, the
power to take action; prescribe the procedures to be followed when taking such action; and
ensure that such action is within the boundaries of the law. It also provides for control over such
action.
2 The sources of administrative law
2.1 Sources
The sources of administrative law are the following:
Binding (authoritative) sources
CCCLAI
1. The Constitution (The Constitution of the Republic of South Africa 108 of 1996)
2. Legislation
3. Case law (judicial precedent)
4. Common law
5. Administrative practice (custom or usage)
6. International law
Persuasive sources
BPSF
7. Writings in books and journals expressing academic opinions
8. Policy documents such as Green and White Papers
9. Reports by “state institutions supporting constitutional democracy” such as reports of the
Human Rights Commission
10. Foreign law (comparative law).
2.2 Binding (authoritative) sources
2.2.1 The Constitution
The Constitution is supreme and no other law may be in conflict with it: thus it is the most
important and authoritative source of law in SA.
The Constitution sets the standard for all administrative conduct and the actions of every
administrative functionary or institution in South Africa.
The Constitution guarantees justice for the individual by demanding that all the requirements
for valid administrative action (lawfulness, reasonableness and procedural fairness) must be met.
2.2.2 Legislation
Legislation gives effect to constitutional provisions.
Most of our law is drafted in the form of legislation.
2.2.2.1 Original legislation
Original legislation is passed by:
1. Parliament in the national sphere of government:
a. The Promotion of Administrative Justice Act 3 of 2000 (PAJA)
b. The Promotion of Access to Information Act 2 of 2000
2. The nine provincial legislatures in the provincial sphere of government:
a. Gauteng Schools Education Act 6 of 1995
3. Elected local governments (municipal councils) in the local sphere of government
, a. By-laws
2.2.2.2 Subordinate legislation
Passed in terms of the original/enabling/empowering legislation: thus it must not conflict with
the provisions in the enabling statute.
Subordinate legislation is passed by:
1. Functionaries in the national sphere of government:
a. Proclamations of the President issued in terms of the empowering statute
b. Regulations made by ministers in terms of an enabling statute
2. Provincial sphere of government:
a. Regulations issued in terms of the School Education Act 6 of 1995
3. Local sphere of government:
a. Regulations in terms of relevant by-laws
2.2.3 Case law (judicial precedent)
Past judgments are binding on other courts in subsequent cases (stare decisis).
2.2.4 Common law
Not an important source of South African administrative law.
Many common-law rules are now included in legislation.
Examples of common-law rules of English law origin:
1. the principle of ultra vires
2. the development of the rules of natural justice
2.2.5 Administrative practice (custom or usage)
Custom as a source of administrative law is the exception rather than the rule.
2.2.6 International law
Not an important source of South African administrative law.
Dealt with in sections 39, 231-233.
2.3 Persuasive sources
2.3.1 Writings in books and journals expressing academic opinions
Courts often refer to academic opinions expressed in law journals and books.
2.3.2 Policy documents such as Green and White Papers
Green Paper: consultative document.
White Paper: the blueprint of the government's policy on various matters (i.e. GEAR)
Both express current government policy.
2.3.3 Reports by “state institutions supporting constitutional
democracy”
Institutions that report on administrative conduct and make recommendations to the legislature
on how to cure any excess in the exercise of authoritative power.
2.3.4 Foreign Law
Courts may consider foreign law.
, 2.4 Where to find administrative law sources
Legislation:
1. Government Gazette
2. Butterworths
3. Internet
Case law:
1. South African Law Reports
2. Butterworths Constitutional Law Reports (BCLR)
3. decisions of the Constitutional Court (CC) and Supreme Court of Appeal (SCA):
http://www.law.wits.ac.za
Articles dealing with Administrative law topics:
1. South African Public Law (SAPR/PL),
2. South African Journal on Human Rights (SAJHR)
Policy documents and the reports of government institutions:
1. http://www.polity.org.za
3 The administrative law relationship
3.1 The characteristics of the administrative-law relationship
1. At least one of the legal subjects must be a person or body who exercises power.
2. More important, the position of power must be held by a person or body clothed with
government (state) authority, and who is able to exercise that authority.
An administrative law relationship can exist between the person who exercises authority and:
1. a private individual in the subordinate position
2. a lower-ranking official in the same department.
Asked in 2006 & 2007 exam: Define an administrative-law relationship, including
the concepts of general and individual administrative-law relationships.
A: An administrative relationship exists between two or more people where at least one of the
subjects is a person or body clothed in state authority who is able to exercise that authority over
a person or body in a subordinate position whose rights are affected by the action. It is an
unequal relationship.
In a general administrative-law relationship the legal rules governing the relationship between
the parties apply to all the subjects in a particular group. It is created by, changed and
terminated by legislation.
An individual administrative-law relationship the rules apply personally and specifically between
the parties. The relationship is created by individual administrative decisions.
3.2 The distinction between a general and an individual
administrative-law relationship
3.2.1 The general (objective) relationship
The legal rules governing the relationship between the parties apply to all the subjects within a
particular group.
The general relationship is created, changed or ended by legislation
3.2.2 The individual (or subjective) relationship
Legal rules governing the relationship between the parties apply personally and specifically
between the parties.
The individual relationship is created by individual administrative decisions.
