ADL 2601 study guide

CONTENTS Page INTRODUCTION ix PART 1: STATE AUTHORITY AND THE HOLDERS OF SUCH AUTHORITY 1 LEARNING UNIT 1: Describing administrative law 2 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 Conclusion 18 LEARNING UNIT 2: The administrative-law relationship 20 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 Conclusion 26 LEARNING UNIT 3: The legal subjects of the administrative-law relationship 27 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 Conclusion 35 LEARNING UNIT 4: The sources of administrative law 36 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 Conclusion 50 PART 2: ADMINISTRATIVE ACTION 51 LEARNING UNIT 5: Administrative action 52 5.1 The definition of “administrative action” 52 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 Conclusion 74 PART 3: JUST ADMINISTRATIVE ACTION 75 LEARNING UNIT 6: Just administrative action – setting the scene 76 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 Conclusion 86 LEARNING UNIT 7: The right to lawful administrative action as requirement for valid administrative action 87 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 provisions 97 7.4 Delegation 98 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 administrator 109 7.5.5.1 Unauthorised or ulterior purpose 110 7.5.5.2 Exercising power using an unauthorised procedure 112 7.5.5.3 Exercising power using ulterior motives (acting in fraudem legis) 113 7.5.6 The administrator and the exercise of power in bad faith (mala fides) 115 7.6 Conclusion 116 LEARNING UNIT 8: The constitutional right to reasonable administrative action 117 8.1 Introductory remarks 117 8.2 The present position in terms of the 1996 Constitution and the provisions of PAJA 119 8.2.1 Section 33(1) of the 1996 Constitution 119 8.2.2 PAJA and the right to reasonable administrative action 119 8.2.3 The Constitutional Court’s interpretation of the right to reasonable administrative action 119 8.3 Justifiable administrative action in terms of section 24(d) of the interim Constitution 122 8.3.1 Section 24 122 8.3.2 The courts’ approach to justifiability in section 24(d) of the interim Constitution 123 8.3.3 Proportionality 125 8.4 The common law and reasonableness 126 8.4.1 Introductory remarks 126 8.4.2 Some earlier decisions on reasonableness 127 8.5 Conclusion 128 LEARNING UNIT 9: The right to procedurally fair administrative action 129 9.1 Introduction: the purpose of the right to procedurally fair administrative action 130 9.2 PAJA and the right to procedurally fair administrative action 131 9.2.1 Introduction 131 9.2.2 Section 3 of PAJA and the application of procedural fairness 131 9.2.3 Section 4 of PAJA and the application of procedural fairness (decisions affecting the public) 136 9.3 Legitimate expectation, its development at common law and its recognition in section 3(1) of PAJA 138 9.3.1 Introductory remarks 139 9.3.2 Legitimate expectation and its development at common law 140 9.3.3 Decisions dealing with legitimate expectation after 1994 141 9.3.4 Current application 142 9.4 The constitutional right to procedurally fair administrative action: Some general observations 143 9.4.1 Introductory remarks 143 9.4.2 The content of the right to procedurally fair administrative action 143 9.4.3 The courts’ interpretation of the constitutional right to procedural fairness before PAJA 144 9.5 The origin of the right to procedurally fair administrative action 146 9.6 The common-law rules of natural justice 146 9.6.1 The audi alteram partem rule (“to hear the other side”) 146 9.6.1.1 Introduction 146 9.6.1.2 The individual must be given an opportunity to be heard on the matter 147 9.6.1.3 The party must be informed of considerations which count against him or her 149 9.6.1.4 Reasons must be given by the administrator for any decisions taken 149 9.6.2 The nemo iudex in sua causa rule (“no one should be judge in his or her own case” – the rule against bias or prejudice) 150 9.7 At what stage of the decision-making process should procedural fairness be applied? 152 9.8 Conclusion 152 LEARNING UNIT 10: The right to be given written reasons 153 10.1 PAJA and the requirement of reasons 153 10.1.1 The request for reasons 153 10.1.2 The response by the administrator 154 10.1.3 Failure to provide adequate reasons in writing leads to an “adverse inference” 154 10.1.4 Departures from the requirement to furnish written reasons: Reasonable and justifiable refusal to furnish reasons 154 10.1.5 A fair but different procedure in terms of section 5(5) 154 10.1.6 Providing reasons without the need for a request in terms of section 5(1)155 10.2 When will reasons be adequate? 155 10.3 The right to reasons in terms of section 24(c) of the interim Constitution and section 33(2) of the 1996 Constitution 157 10.4 General remarks on the importance of reasons 158 10.5 Who has a right to reasons? 159 10.6 Conclusion 159 PART 4: CONTROL AND REMEDIES 161 LEARNING UNIT 11: Internal control of administrative action 162 11.1 The distinction between control and remedy 162 11.2 Control within the administration itself – internal control 163 11.2.1 Introductory remarks 163 11.2.2 The forms of internal control 164 11.2.2.1 Control by senior or superior administrators or specially constituted bodies or institutions 164 11.2.2.2 Parliamentary control 165 11.2.2.3 Public bodies and commissions 165 11.2.3 Advantages of internal control 167 11.3 PAJA and the use of internal control 167 11.3.1 Internal remedies must first be exhausted 167 11.3.2 Exceptions to the general rule 169 11.4 Conclusion 171 LEARNING UNIT 12: Judicial control of administrative action and remedies in proceedings for judicial review 172 12.1 Preconditions before turning to judicial control 173 12.1.1 Introduction 173 12.1.2 The applicant must have locus standi (standing) 174 12.1.2.1 What is locus standi? 174 12.1.2.2 Locus standi or legal standing in terms of section 38 of the 1996 Constitution 174 12.2 The various forms of judicial control 175 12.2.1 Statutory appeal 176 12.2.2 Judicial review 176 12.2.3 Interdict 177 12.2.4 Mandamus 178 12.2.5 Declaratory order 178 12.2.6 Defence in criminal proceedings 179 12.3 Judicial review: Grounds for review in terms of section 6 of PAJA 180 12.3.1 Introductory remarks 180 12.3.2 The decision-maker (administrator) (s 6(2)(a)(i)–(iii)) 180 12.3.3 The manner in which the decision was taken (s 6(2)(b)–(e)) 181 12.3.4 The administrative action itself (s 6(2)(f)–(i)) 182 12.4 Procedure for judicial review in terms of PAJA 183 12.4.1 Which court may review administrative action? 183 12.4.2 The procedure prescribed for the review of administrative action 184 12.5 The orders made by a court as prescribed by section 8 of PAJA 185 12.5.1 Introduction 185 12.5.2 Section 8 186 12.6 The “constitutionalisation” of administrative action and judicial review 188 12.7 The importance of judicial control and the courts’ traditional (common-law) function of controlling administrative action through review 189 12.8 Conclusion 190 ANNEXURE A: Promotion of Administrative Justice Act No. 3 of 2000 191 ANNEXURE B: Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and Tourism and Another 2005 (3) SA 156 (C) 2005 (3) SA 156 (C) 204 ANNEXURE C: The Refugees Act, 130 of 1998 221 ADL2601/1 (vii) .................................................continued.........................................................