ADL2601 EXAM PACK 2023

Study Unit 1 Four key features of administrative law There are four key features of administrative law, these are the base of the module ADMINSTRATIVE LAW. 1)State Authority This is public 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 authority affects the rights of that subordinate. The question to ask in administrative law is whether any person or body has acted as an organ on state. Whether the actor does indeed have such authority as a public function. 2)Administrative Action This is the conduct of functionaries and institutions, administrators when exercising a public power or performing a public function in terms of any legislation. It usually is in the form of a decision. 3)Just Administrative Action This is the manner or conduct in which any administrative action must be performed by an organ of state, natural or juristic person in exercising state authority. The constitution requires all administrators to act lawfully, reasonably, to follow fair procedures and to give CONTACT: 9 2 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 2 written reasons when decisions are made that adversely affect the rights of any subordinate person. 4)Control of administrative action These are the means of correcting or rectifying administrative action that is not just/fair, when administrative action is not in line with the prescriptions of the law. It applies when prejudice of subordinate can be established. Does he have a case/grievance against the administrator What is administrative law? Administrative law forms part of public law. It regulates the activities of organs of state and natural/juristic persons that exercise public powers / perform public functions. By regulating the activities of organ of state and natural/juristic persons include prescribing the procedures to be followed when public powers are exercised or public functions are performed ensuring that such action is within boundaries of the law. It regulating also includes control over such action CONTACT: 9 3 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 3 Study Unit 2 The Administrative Law relationship THE CHARACTERISITICS OF THE ADMINISTRATIVE-LAW RELATIONSHIP Public Law Regulates the organization of the state and the relationship btwn the state & the relationship btwn the individual. Concerned with the exercise of state authority by the gvt and deals with relationships were one of the parties are always the state as bearer of state authority. Vertical Relationship The Public law relationship is vertical: someone in authority subordinate. Private Law Concerned with relationships btwn individuals who are on an equal footing. It is a relationship of equality. Horizontal Relationship Private law is horizontal: individual – individual Characteristic One legal subject must be in a position of authority. 2- it must be held by a person who has the right to exercise state authority. Must have the power to prescribe, restrict or allow certain behavior. CONTACT: 9 4 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 4 It can also exist between a person exercising authority and a lower ranking official in the same department. 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. 2 Kinds of Administrative-law relationships: The general or objective 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. Example: refugees must adhere to the Refugees Act 130 of 1998, therefore the relationship is between refugees and the Dept of Home Affairs CONTACT: 9 5 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 5 Study Unit 3 The legal subjects of the admin law relationship Identifying the authoritative party in the ALR? 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 The individual or subjective relationship 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 or amended provisions unless explicitly stipulated. MEMORISE DEFINITIO N CONTACT: 9 6 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 6 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: 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) CONTACT: 9 7 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 7 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 1. The Constitution of the RSA, 1996 2. Legislation 3. Case law/judicial precedent 4. Common law Persuasive sources 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 CONTACT: 9 8 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 8 5. Administrative practice (custom or usage) 6. International law as reports of the Human Rights Commission 4. Foreign law Binding/authoritative sources The Constitution of RSA The 1996 Constitution, with its entrenched Bill of Rights, is the supreme law of SA – the ultimate source of law and no other law may be in contradiction/conflict to it This is stated in Section 2 of the Constitution The implications of this supremacy are twofold: 1. It sets the standard for the exercise of power and thus the actions of every organ of the state or functionary or institution in SA 2. It promotes and guarantees a culture of human rights – it insists on justice for the individual by commanding that all the requisites for valid admin action lawfulness, reasonableness, and procedural fairness must be met. The Constitution therefore guarantees the right to just admin action to anyone ito section 33 CONTACT: 9 9 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 9 Legislation - The primary source of administrative power as it adds flesh to the bones of principles, norms and values - expressed in the Constitution. 1. Original legislation: - Passed by parliament in the national sphere of government, such as a. PAJA b. The Promotion of Access to Information Act 2 of 2000 (PAIA) - Also passed by the 9 provincial legislatures in the provincial sphere of government i.t.o. section 104 read with Schedules 4 & 5 of the Constitution, for example a. The various Schools Education Acts passed by the 9 provinces – e.g. Gauteng Schools Education Act 6 of 1995 - Also passed by elected local governments, the municipal councils, in the local sphere of government. A local government has the power to enact by-laws that do not conflict with the Constitution, any parliamentary statute or any applicable provincial statute i.t.o. section 156(2), for example a. Judgement in Fedsure Life Insurance Ltd v Greater Johannesburg Transitional Metro Council CONTACT: 9 10 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 10 2. Delegated legislation: - It must be enacted i.t.o. original legislation as it is subordinate and must be authorised by the original, enabling legislation - Such delegated legislation must not conflict with the provisions of the enabling Act - Regulation through delegated legislation mostly occurs when matters of a specialised or technical nature - Passed by functionaries who are empowered in the national governmental sphere, for example a. Proclamations of the President (in his executive capacity) such as to declare the date of commencement of a particular statute b. Regulations made by ministers (the members of the cabinet in the national executive) i.t.o. an enabling statute - Regulations are issued in the provincial sphere of government (example regulations issued i.t.o. the School Education Act 6 of 1995) - Regulations are issued in the local sphere of government (example regulations i.t.o. relevant by-laws for regulation of traffic in a particular municipal area) 3. Case Law - Past judgements are binding on other courts in subsequent cases and may be referred to assist in controlling the exercise CONTACT: 9 11 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 11 of public power and the performance of public functions by organs of state 4. Common Law - The law not written up in South African legislation - Though not as important to admin law as is the above sources, it still may have influence, example a. The principle of ultra vires and b. The development of the rules of natural justice – now included in PAJA 5. Administrative practice/custom or usage - Custom is made up of unwritten rules or practices, carried down through generations - PAJA includes “customary law” in the definition of “empowering provision” in section 1 - A custom must meet these criteria before it is recognized as such:  It must be reasonable  It must have exited over a long period  It must be generally recognised, accepted and observed by the community  The content of the custom must be certain and clear 6. International law CONTACT: 9 12 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 12 - Regulates the relationship between states and/or international organisations and comprises mainly treaty and international usage. - Rarely utilised as a source of law in admin law practice 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: CONTACT: 9 13 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 13 - 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 >> READ SECTION 1 (DEFINITIONS) OF 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: CONTACT: 9 14 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 14 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]; CONTACT: 9 15 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 15 Steps to finding what conduct qualifies as administrative action in PAJA: 1. Look at the definition of decision 2. Look at the meaning of empowering provision 3. Look at the meaning attached to failure 4. Look at the definition of an organ of the state 5. Look at the qualification required for administrative action 6. Look at the 9 exclusions from the definition in PAJA Subsequently the Promotion of Administrative Justice Act 3 of 2000 (PAJA) was promulgated on 3 Feb 2000 This Act gives effect to the rights contained in section 33 of the Constitution Therefore leading to: 1. decision, including a proposed decision, as well as the failure to take a decision 2. of an administrative nature 3. under an empowering provision 4. organ of state or natural or juristic person when exercising public power or performing a public function 5. that adversely affects the rights of any person 6. that has a direct, external legal effect 7. that is not specifically excluded by the list of nine broad categories of exclusions mentioned in subparagraphs (aa)to CONTACT: 9 16 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 16 (ii). (Note that the wording is in actual fact, ``but does not include'' ...) 1. Decision - Action will qualify as admin action when it takes the form of a decision (see PAJA for def of a decision) - A decision will also qualify as aa when it involves the refusal to take a decision (see def of failure) 2. Of and administrative nature - Both constitutional law and administrative law form part of public law but is distinguished as follows: Constitutional law - Deals with the actions of and interaction between the organs of state of the 3 branches of gov (legislature, executive and judiciary) - It regulates the powers of the highest organs of state and the powers of the judiciary - It controls the powers of Parliament in the national sphere, the provincial legislatures in the provincial sphere, and of municipal councils in the local sphere of gove rnment - Areas of focus:  The structure of the organs of state at the highest level (e.g. Parliament, the executive and the judiciary)  Matters such as the formulation of policy by government (usually set out in legislation) Administrative law - Concerned with only one branch of the state system: the executive CONTACT: 9 17 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 17 3. Under an empowering provision - Defined as a law, a rule of common law, customary law, or an agreement, instrument or other document. Therefore exercise of public power or performance of a public function must have an authoritative foundation of some kind, not only legislation - The decision must be taken i.t.o. an empowering provision 4. Organ of state or natural or juristic person when exercising public power or performing a public function - The action of orgarn of state (defined in sec 239 of the C) will qualify as admin action when they exercise power i.t.o. the Constitution or a provincial constitution, or when they exercise public powers or perform public functions i.t.o legislation - PAJA further allows for aa to be carried out other persons that is natural or juristic persons but only when these persons exercise public power or perform a public function i.t.o. an empowering provision 5. Adversely affects the rights of any person - Concerned with the conduct of the bureaucracy in carrying out the daily functions of the State - Areas of focus: The day-to-day business of implementing and administering / applying policy CONTACT: 9 18 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 18 - To qualify as aa the decision’s effect must be to “adversely affect the rights of any person” 6. That has a direct, external legal effect - A contentious issue that is regarded as an attempt to challenge admin decisions 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) 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. CONTACT: 9 19 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 19 Examples of organs of state that perform a purely judicial function: Air pollution appeal board; the films and publications appeal board. 3. 4. 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. Termination of the legal force of administrative action CONTACT: 9 20 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 20 Legal force of administrative action is terminated by repeal, amendment, lapse of time, withdrawal of one of the subjects to the relationship or by court order.  Legislative action - Where an individual has acquired rights as a result of the legislative action, the repeal or amendment does not affect these acquired rights. Repeal cannot also apply retrospectively.  Judicial administrative acts - The administrative tribunal, such as the refugee appeal board, is functus officio once it has made its ruling, and it cannot vary or revoke the decision. The decision can only be altered, rescinded or upheld by a higher judicial body usually the High Court.  Administrative acts - any invalid administrative acts (ie invalid decision) may be altered or withdrawn by the administrator. Valid onerous/burdensome administrative acts may be altered by the administrator. Onerous/burdensome administrative acts place a duty on the individual, or prohibit an individual from doing something or refuse to grant him or her something such as a licence. Valid beneficial administrative acts may be altered by the authority only where the power to do so has been conferred expressly or by necessary implication. Functus officio: the organ of state cannot amend, repeal or alter its decision – i.e. discharged his or her or its official CONTACT: 9 21 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 21 function and he or she or it cannot re-examine or change the decision afterwards. Study Unit 6