Unit 1b: Sources of administrative law
Wednesday, 30 January 2019 11:25 PM
Prescribed Reading:
https://www.news24.com/SouthAfrica/News/zuma-legal-fees-dismiss-da-case-on-basis-of-undue-delay-lawyers-
argue-20181106
https://www.iol.co.za/news/politics/zuma-must-pay-back-millions-in-legal-fees-court-rules-18491696
http://www.saflii.org/za/cases/ZAGPPHC/2018/836.html (Zuma legal fees case)
Hoexter, pages 29–37 and 114–137
Quinot, pages 22–23 and 59–62
Cora Hoexter ‘The rule of law and the principle of legality in South African administrative law today’ in Marita
Carnelley & Shannon Hoctor (eds) Law, order and liberty: Essays in honour of Tony Mathews (2011)
EFF
Insert slides
In this part of the course we ask where do we find the laws regulating administrative power?
The sources of administrative law have two important functions:
• First, they tell administrators what powers they may exercise by authorising the holders of public power
to perform administrative acts in a certain manner (empowering sources); and
• Secondly, they constrain the exercise of power by administrators because they define the boundaries of
what administrators may and may not do (constraining/prescriptive sources). Empowering sources
include laws and policies that are implemented by administrators. These sources must be implemented
in a manner that is consistent with PAJA. Constraining sources are principally the rule of law and
requirements of legality that it demands, section 33 and PAJA. Legality has muddied the waters in
relation to the manner in which administrative power is constrained (regulated). It ought to regulate
public power that is not administrative action, and administrative action ought to be regulated by the
legislation designed specifically for that purpose. However, for various reasons, legality has emerged as a
means to regulate conduct that might be administrative action.
PAJA – the general prescriptive source of administrative law
PAJA, because it applies to and regulates all administrative action, can be described as the general source of
the administrative law – all administrative action has to comply with the rules of the administrative law as
described in PAJA. PAJA describes what administrative action includes, what it means for a
Empowering provisions – specific sources of the administrative law contained in
original or delegated legislation or policy
Specific administrators (i.e. persons or institutions with powers subject to administrative law) typically derive
their authority to perform specific conduct from specific ‘empowering provisions’ – usually contained in
original or delegated legislation, policy, or other legal instruments – that confer their powers on them and
prescribe the content of such powers and the manner in which the powers should be exercised. Such
empowering provisions, seeing that they prescribe specific rules with which the exercise of powers by specific
administrators have to comply, are also sources of administrative law rules, but they are rules that regulate
only the specific administrators to which the empowering provisions apply. Empowering provisions are
therefore referred to as specific sources of the administrative law.
Features of public power:
- Exercised by government
- Controlling relationship over citizens
- Unequal relationship of power
** must be able to identify public power and determine whether it is administrative power
Why is admin law NB?
- Holds public officials accountable (EFF case)
- PAJA + principle of legality → outcome was that Zuma was required to pay back the money used in
payment of his legal fees
- Review used to challenge public power - decision can be set aside
Judicial review in administrative law cases
- What is an administrative law case?
○ State being a party to the case (however not always indicative of it being an admin law case; state
not always party)
○ Provisions of PAJA might be applicable → however type of public power should first be determined
(administrative vs executive) where either PAJA or the principle of legality will apply
Where party involved is a private body - still have to enquire whether the power involved is
still public in nature, however in such a case areas of private law might apply instead (e.g.
contract law, aspects of mercantile law etc)
- An administrative law case is one where s 33 and PAJA might apply (i.e. court has to inquire into whether
or not the conduct at issue is admin action, and determine the correct justification of its power to review
the conduct).
○ "Today the main explanation for the ability of judges to intervene in admin law matters is to be
found in the rights to admin justice entrenched in s 33 of the Constitution" - Hoexter p 117
, found in the rights to admin justice entrenched in s 33 of the Constitution" - Hoexter p 117
○ Despite this "main explanation" there are a "proliferation (grow/multiply) of pathways" or many
"avenues" to judicial review
Sources of administrative law
115-117 Hoexter, 22-23 Quinot
On the one hand we have sources which constrain admin
power, and on the other we have sources which confer power
General source of control of admin power; s 33 more specific
**value of the rule of law
PAJA much more specific than All these sources are
(PAJA gives effect to s 33) meant to regulate public
the Constitution
power - must be seen as
all working together,
working on a continuum
(can be described as pre-democratic jurisprudence)
These principles have now been codified
Common law provides guidelines as to how PAJA operates
and what it means
Section 38J(1) of the Higher Education Act 101 of 1997
p. 43 textbook
The minister may issue a directive to the board of a national institute for higher education to take such action
specified by the Minster if the national institute for higher education -
(a) is involved in financial impropriety or is otherwise being mismanaged
- A power is conferred "may"
- Power is coercive/oppressive Implied that ongoing assessment should take
- Provision is permissive (directory) "may" is used place so that the Minister can assess the
- Power may be performed when the national situation
institute for higher education is involved in
financial impropriety or is otherwise being
mismanaged
- Is the power administrative in nature? Involves
running of the State - therefore Yes
- Does it involve the implementation of legislation -
yes, therefore the power is likely to be
administrative action
(emerging from
rule of law)
Wednesday, 30 January 2019 11:25 PM
Prescribed Reading:
https://www.news24.com/SouthAfrica/News/zuma-legal-fees-dismiss-da-case-on-basis-of-undue-delay-lawyers-
argue-20181106
https://www.iol.co.za/news/politics/zuma-must-pay-back-millions-in-legal-fees-court-rules-18491696
http://www.saflii.org/za/cases/ZAGPPHC/2018/836.html (Zuma legal fees case)
Hoexter, pages 29–37 and 114–137
Quinot, pages 22–23 and 59–62
Cora Hoexter ‘The rule of law and the principle of legality in South African administrative law today’ in Marita
Carnelley & Shannon Hoctor (eds) Law, order and liberty: Essays in honour of Tony Mathews (2011)
EFF
Insert slides
In this part of the course we ask where do we find the laws regulating administrative power?
The sources of administrative law have two important functions:
• First, they tell administrators what powers they may exercise by authorising the holders of public power
to perform administrative acts in a certain manner (empowering sources); and
• Secondly, they constrain the exercise of power by administrators because they define the boundaries of
what administrators may and may not do (constraining/prescriptive sources). Empowering sources
include laws and policies that are implemented by administrators. These sources must be implemented
in a manner that is consistent with PAJA. Constraining sources are principally the rule of law and
requirements of legality that it demands, section 33 and PAJA. Legality has muddied the waters in
relation to the manner in which administrative power is constrained (regulated). It ought to regulate
public power that is not administrative action, and administrative action ought to be regulated by the
legislation designed specifically for that purpose. However, for various reasons, legality has emerged as a
means to regulate conduct that might be administrative action.
PAJA – the general prescriptive source of administrative law
PAJA, because it applies to and regulates all administrative action, can be described as the general source of
the administrative law – all administrative action has to comply with the rules of the administrative law as
described in PAJA. PAJA describes what administrative action includes, what it means for a
Empowering provisions – specific sources of the administrative law contained in
original or delegated legislation or policy
Specific administrators (i.e. persons or institutions with powers subject to administrative law) typically derive
their authority to perform specific conduct from specific ‘empowering provisions’ – usually contained in
original or delegated legislation, policy, or other legal instruments – that confer their powers on them and
prescribe the content of such powers and the manner in which the powers should be exercised. Such
empowering provisions, seeing that they prescribe specific rules with which the exercise of powers by specific
administrators have to comply, are also sources of administrative law rules, but they are rules that regulate
only the specific administrators to which the empowering provisions apply. Empowering provisions are
therefore referred to as specific sources of the administrative law.
Features of public power:
- Exercised by government
- Controlling relationship over citizens
- Unequal relationship of power
** must be able to identify public power and determine whether it is administrative power
Why is admin law NB?
- Holds public officials accountable (EFF case)
- PAJA + principle of legality → outcome was that Zuma was required to pay back the money used in
payment of his legal fees
- Review used to challenge public power - decision can be set aside
Judicial review in administrative law cases
- What is an administrative law case?
○ State being a party to the case (however not always indicative of it being an admin law case; state
not always party)
○ Provisions of PAJA might be applicable → however type of public power should first be determined
(administrative vs executive) where either PAJA or the principle of legality will apply
Where party involved is a private body - still have to enquire whether the power involved is
still public in nature, however in such a case areas of private law might apply instead (e.g.
contract law, aspects of mercantile law etc)
- An administrative law case is one where s 33 and PAJA might apply (i.e. court has to inquire into whether
or not the conduct at issue is admin action, and determine the correct justification of its power to review
the conduct).
○ "Today the main explanation for the ability of judges to intervene in admin law matters is to be
found in the rights to admin justice entrenched in s 33 of the Constitution" - Hoexter p 117
, found in the rights to admin justice entrenched in s 33 of the Constitution" - Hoexter p 117
○ Despite this "main explanation" there are a "proliferation (grow/multiply) of pathways" or many
"avenues" to judicial review
Sources of administrative law
115-117 Hoexter, 22-23 Quinot
On the one hand we have sources which constrain admin
power, and on the other we have sources which confer power
General source of control of admin power; s 33 more specific
**value of the rule of law
PAJA much more specific than All these sources are
(PAJA gives effect to s 33) meant to regulate public
the Constitution
power - must be seen as
all working together,
working on a continuum
(can be described as pre-democratic jurisprudence)
These principles have now been codified
Common law provides guidelines as to how PAJA operates
and what it means
Section 38J(1) of the Higher Education Act 101 of 1997
p. 43 textbook
The minister may issue a directive to the board of a national institute for higher education to take such action
specified by the Minster if the national institute for higher education -
(a) is involved in financial impropriety or is otherwise being mismanaged
- A power is conferred "may"
- Power is coercive/oppressive Implied that ongoing assessment should take
- Provision is permissive (directory) "may" is used place so that the Minister can assess the
- Power may be performed when the national situation
institute for higher education is involved in
financial impropriety or is otherwise being
mismanaged
- Is the power administrative in nature? Involves
running of the State - therefore Yes
- Does it involve the implementation of legislation -
yes, therefore the power is likely to be
administrative action
(emerging from
rule of law)
