ADL2601 Administrative Law Notes A+

Study Unit 1 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. State authority is the power exercised by an organ of state or natural or juristic person over another person or body in a subordinate or subservient position. The exercise of such state authority could affect the rights or interests of the last-mentioned. Administrative action is the conduct of functionaries and institutions (administrators) when exercising a public power or performing a public function in terms of any legislation. This conduct takes a variety of forms, but usually it is in the form of a “decision”' of the administrator. Study Unit 2 – The Admin Law relationship Define an administrative-law relationship, including the concepts of general and individual administrative-law relationships. 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 and not affected by new legislative provisions. Study Unit 3 – The legal subjects of the admin law relationship Definition of an organ of state Section 239 of the Constitution: „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. Organ of state in terms of s 239(a) refers to the functionaries and institutions forming part of the public administration. 1. In the national sphere this refers to: a. Departments of state or government departments, i.e. Department of Agriculture b. May refer to an entire department and/or to its functionaries c. Ministers & Deputy Ministers d. President & Deputy President 2. In the provincial sphere this refers to: Downloaded by Thomas Mboya () lOMoARcPSD| 2 a. Provincial departments of state b. Premiers of provinces c. Members of the Executive Councils (MECs) 3. In the local government sphere this refers to: a. Municipalities b. Municipal councils Organ of State in terms of s 239(b) Any functionary or institution that is not part of the public administration, but which either exercises power or performs functions in terms of the Constitution or a provincial constitution, or exercises public power or performs public functions in terms of legislation. The role of associations, clubs and other “private” organisations and voluntary organisations are non-statutory bodies which have traditionally had the common law of administrative laws applied to them because the relationship between management and members is analogous to that of an administrative law relationship. Study Unit 4 The sources of administrative law Binding (authoritative) sources - CCCLAI 1. The Constitution (The Constitution of the Republic of South Africa 108 of 1996) 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. 2. Legislation - Legislation gives effect to constitutional provisions a. Original legislation i. Passed by Parliament in the national sphere of government; ii. The nine provincial legislatures in the provincial sphere of government; iii. Elected local governments (municipal councils) in the local sphere of government b. Subordinate legislation - Passed in terms of the original/enabling/empowering legislation: thus it must not conflict with the provisions in the enabling statute. i. Passed by: functionaries in the national sphere of government; Proclamations of the President issued in terms of the empowering statute Regulations made by ministers in terms of an enabling statute . ii. Provincial sphere of government: e.g. regulations issued in terms of sphere of competency of provincial government e.g. education iii. Local sphere of government: Regulations in terms of relevant by-laws 3. Case law (judicial precedent) - Past judgments are binding on other courts in subsequent cases (stare decisis). 4. Common law - Many common-law rules are now included in legislation 5. Administrative practice (custom or usage) 6. International law Persuasive sources (BPSF) 1. Writings in books and journals expressing academic opinions 2. Policy documents such as Green and White Papers 3. Reports by “state institutions supporting constitutional democracy” such as reports of the Human Rights Commission 4. Foreign law (comparative law). Downloaded by Thomas Mboya () lOMoARcPSD| 3 Study Unit 5 Administrative action is; a) A decision, including a proposed decision, as well as the failure to take a decision b) of an administrative nature c) under an empowering provision d) By an organ of state or natural or juristic person when exercising public power or performing a public function e) That adversely affects the rights of any person f) Or has a direct, external legal effect g) That is not specifically excluded by the list of nine broad categories of exclusions mentioned in subparagraphs (aa)to (ii). Or alternatively it can be described as: - Any decision of an organ of state of an administrative nature made in terms of the prescriptions of empowering laws - Any decision of private persons when they exercise public power or perform public functions in terms of empowering laws. Administrative action as described in PAJA Administrative action means a decision taken or failure to take a decision by a) An organ of state in exercising a power in terms of the Constitution or a provincial constitution, or in exercising a public power or performing a public function in terms of any legislation; or b) A natural or juristic person which is not an organ of state when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct external legal effect. The definition in PAJA includes a list of exceptions to this general definition. PAJA also defines “decision” as being of an administrative nature Action that does not qualify as administrative action The following does not qualify as administrative action: a) The executive powers or functions of the National Executive including; calling a national referendum in terms of an Act of Parliament; receiving and accrediting foreign diplomatic and consular representatives; appointing ambassadors; conferring honours; appointing commissions of inquiry b) The executive powers or functions of the Provincial Executive, c) The executive powers or functions of a municipal council; d) The legislative functions of Parliament, a provincial legislature or a municipal council; e) The judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, and the judicial functions of a traditional leader under customary law or any other law; f) A decision to institute or continue a prosecution; g) A decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law; h) Any decision taken, or failure to take a decision in terms of any provision of the promotion of Access to Information Act, 2000; or i) Any decision taken, or failure to take a decision in terms of section4(1) [of PAJA]; Three classes of administrative action; 1. Legislative administrative action: The making and issuing of delegated legislation when authorised to do so by enabling legislation. (FRRDA) Downloaded by Thomas Mboya () lOMoARcPSD| 4 a) Most easily recognised action - has a specific form and is published in an official document, such as the Government Gazette. b) General relationships are created/varied/ended by administrative legislative acts c) Specific requirements apply to the adoption, repeal or amendment of all legislative administrative acts d) The power to delegate a legislative power exists only when there is express statutory authority for this. e) Must be within the framework of the authority given by the enabling Act. 2. Judicial administrative action - action of an organ of state that is almost like that of the judicial authority in that legal rules are interpreted and applied to concrete situations. Examples of organs of state that perform a purely judicial function: Air pollution appeal board; the films and publications appeal board. 3. Administrative Acts – that is true admin acts relating to the day-to-day business of implementing and applying policy, legislation or an adjudicative decision. Discretionary acts offer the choice between alternatives but always needs to be made in accordance with the prescribed legal formalities which may be narrow or wide. When does administrative action take effect?  Legislative administrative action - Affects an individual as soon as the regulation or proclamation has been promulgated and the stated date of commencement arrives.  Judicial administrative action - Usually takes effect as soon as the particular judicial institution gives its decision or delivers its judgment.  Purely administrative action - will take effect upon the decision becoming known, either by publication (in the Government Gazette) or by individual notification.