ADMINISTRATIVE LAW
Administrative law is concerned with the exercise of public power. The reach of
administrative law is vast and of everyday importance for us all. Examples of the exercise of
public power include decisions on the award of government tenders, whether a soccer player
may play in the National Soccer League, the rights of people to use their land for particular
purposes, or the issuing of licenses permitting the sale of alcohol at certain premises.
Administrative law consists of the legal rules that govern the exercise of power by government authorities.
These rules ensure that governmental power is exercised lawfully, fairly, and reasonably.
There are two categories of administrative law:
1. General rules – Broad principles that apply to all government actions.
2. Specific rules – Regulations unique to each government department, dictating how they must operate
(e.g., rules for the Department of Home Affairs).
Administrative justice is concerned with ensuring accountability, transparency, and good governance in
government decision-making. The primary question it addresses is: How does the government make decisions
lawfully?
TERM 1
Week 1
Required
§ Hugh Corder & Cora Hoexter ‘“Lawfare” in South Africa and its Effects on the
Judiciary’, 10 African Journal of Legal Studies 105 (2017).
§ Section 24 of the Interim Constitution and Section 33 of the Constitution of the
Republic of South Africa, 1996 (‘the Constitution’).
§ Sections 1, 2, 195-197 and 239 of the Constitution.
§ The Promotion of Administrative Justice Act, 2000 (‘PAJA’).
Introduction to Administrative Law
How your life is governed and regulated.
We obviously know we have 3 branches of government; judiciary, legislature and executive (chapter
9 institution being considered by some as a 4th branch) – we know they work together, to regulate
public life. Checks and balances and what not. They regulate our everyday lives (licenses/university
admissions/trade goods/restaurant operations etc.)
This course is about the exercise of regulating our lives through these public powers. It is all about
regulation – rule making.
Legislature – our rule makers – they make rules but will they be able to plan/identify the rules for
EVERY type of issue? Probably not. They can lay out general rules (a framework) but there may be
things that come up that aren’t covered, and then the executive members are given powers to
,implement these laws. General rule give others discretion to implement the rules. But how much
power can be given to the exec to implement the laws and how must they exercise these powers?
Example: X makes decision in the course (the general rule gives X the discretion on how to
implement the rules made by the LSC – so there is 1) rule making and 2) implementation of these
rules). But when the discretion is given to someone else (who wasn’t elected) to implement it can be
either narrow or broad.
We are concerned with this relationship – you have laws which are made by bodies with the power to
make it but they cannot implement the rules for every case so they must give that power to decision-
makers. So, how do we empower these people to make decisions but not give them such wide
discretion that it can operate adversely. So, administrative law asks how we regulate the exercise of
this discretion / public power?
Very basic example: toothpaste needs to go through a process to deem it safe – administrative bodies
were involved in making sure your toothpaste is safe and they had to comply with rules. This just
shows how regulation affects our everyday lives.
Judicial review is NB in this course – but don’t conflate administrative law with judicial review.
● What is administrative law?
It Regulates – want to empower the decision-makers to make rules but also want to constrain those
powers to ensure that necessary principles (fairness/procedural fairness/rationality) are complied with.
The exercise of PUBLIC power [or performance of public functions] (what is exercised by the state
– functionaries of the state. Note – not concerned with the exercise of PURELY PRIVATE
interactions. We will later consider what is deemed as public. Just know private actors can still
exercise public power). Example of private actors exercising public power: security companies/bodies
regulating sport like SA Football Association – when a player gets booted, is that private or public
power? However, a lot of these examples are up for debate and the court has tried to develop tests to
determine whether something is public or private. Know now that admin has a lot of grey areas.
The exercise of public power is essential. How do we make this exercise possible? Keep reminding
yourself how practically every aspect of our lives depend on this public power/regulatory functions.
- Phone networks
- Housing
- Eskom
- Food
- Transport
- Sports
- State procurement (when the state contracts for the provision for the goods or services – a big
place of corruption in SA. How should the tenders be allocated? Price? Expertise? BEE
requirements? If awarded, was it done procedurally fair and reasonable. These things are all
relevant with regards to state procurement.)
By public or private bodies
It:
★ Describes obligations and powers of those exercising public power (what they
can/must do);
★ Describes the ways in which those powers must be exercised (how they should do it);
★ Provides remedies where there has been maladministration.
,Concerned with the daily business of government (core aspect but is more than just this)
‘…the conduct of the bureaucracy…in carrying out the daily functions of the state
which necessarily involves the application of policy, usually after it translation into
law, with direct and immediate consequences for individuals or groups of
individuals.’ (Greys Marine Hout Bay v Minister of Public Works)
Above expanded – everyday decisions make up the bureaucracy – home affairs for example.
The picture above is a perfect quote of admin law. ICE talk… They are given the power to
regulate illegal immigration and do it in a certain way. Are we comfortable with them
exercising their decision-making power in the way they are? Mandate is to regulate illegal
immigration - is their exercise of powers in achieving this mandate acceptable? (No, their
powers are WAY TOO BROAD/they are not exercising their powers properly. It is an abuse
of power, especially because people are not able to defend themselves.) We need to
determine 1) what powers they have been given, 2) how they must use it, 3) what happens if
there is maladministration.
The Constitution – regulating exercise of public power
➔ Section 1(c) – rule of law – the ‘mainspring’ of administrative law (Wade and Forsyth);
➔ Section 1(d) – accountability, responsiveness, openness
➔ Section 2 – Constitution is supreme law; law or conduct inconsistent with it is invalid,
and obligations imposed by it must be fulfilled.
➔ Section 195 – values and principles guiding the public administration (including
impartiality, responsiveness, public participation, accountability, transparency)
➔ Section 196 and 197
➢ Within the public administration there is a public service
➢ Public Service Commission must promote s195 values and principles in the
public service.
➔ Section 217 - Procurement must be in accordance with a fair, equitable, transparent,
competitive and cost-effective system.
➔ Chapter 9 Institutions
➔ Bill of Rights (s 33)
Admin law regulates the exercise of public power → some of it is administrative action!
In addition to the values in s1 – s33 tells us that pp must be exercised lawfully, reasonable,
and procedurally fair. Just read these sections bro idk.
PP is the big concept and a subset will constitute administrative action. Not ALL will
constitute administrative action but ALL PP must be subject to constraint. Admin action is
one type of PP.
PAJA – tells us what administrative action is + a lot of it is dedicated to judicial review as
well. It is a mechanism to control the exercise of PP.
33. Just administrative action
1. Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.
, 2. Everyone whose rights have been adversely affected by administrative action has the right
to be given written reasons.
3. National legislation must be enacted to give effect to these rights, and must
a. provide for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
b. impose a duty on the state to give effect to the rights in subsections (1) and (2); and
c. promote an efficient administration.
PAJA
● Section 33(3) - National legislation must be enacted to give effect to these rights…
● Promotion of Administrative Justice Act, 2000 (‘the PAJA’)
PAJA Tells us:
● What constitutes ‘administrative action’
● Grounds on which administrative action can be reviewed
● Procedure for reviewing administrative action
● Remedies in judicial review proceedings
We want to empower officials to do their jobs but to what extent? Is it to facilitate what
officials can do vs controlling them? How much do we want courts to be involved?
Role of Judicial Review
➔ One mechanism to control and/or facilitate the exercise of public power.
➔ Ability of courts to detect and correct instances of maladministration
➔ Continuous tension between the two aims of admin law
to empower officials to do their jobs
v
to control / limit those powers in order to protect rights
Purpose of judicial review of administrative action: To assess whether the government is acting within legal
limits. Judicial review also determines whether it is appropriate for courts to intervene in government decisions.
Key issue – how far can courts go?
1) Example: head of education dep – empowered to expel students from schools when they
misbehave. HOD expels X from a school. That is one decision.
2) Another decision is the Pres appointing a minister of education because he doesn’t like the old
one.
Should these decisions be treated differently? Yes. they are both clearly exercises of public power, but
the court should not apply the same constraints to them / treat them the same.
Should courts be able to do anything with a minister appointed by the pres? President is exercising
political power - SOP! The court cannot overstep into the president's discretion. Can review and test
on procedural grounds. Rationality review…there are differing views on this. The constitution grants
broad power to the president. No clear guidelines so we shouldn’t overstep.
Administrative law is concerned with the exercise of public power. The reach of
administrative law is vast and of everyday importance for us all. Examples of the exercise of
public power include decisions on the award of government tenders, whether a soccer player
may play in the National Soccer League, the rights of people to use their land for particular
purposes, or the issuing of licenses permitting the sale of alcohol at certain premises.
Administrative law consists of the legal rules that govern the exercise of power by government authorities.
These rules ensure that governmental power is exercised lawfully, fairly, and reasonably.
There are two categories of administrative law:
1. General rules – Broad principles that apply to all government actions.
2. Specific rules – Regulations unique to each government department, dictating how they must operate
(e.g., rules for the Department of Home Affairs).
Administrative justice is concerned with ensuring accountability, transparency, and good governance in
government decision-making. The primary question it addresses is: How does the government make decisions
lawfully?
TERM 1
Week 1
Required
§ Hugh Corder & Cora Hoexter ‘“Lawfare” in South Africa and its Effects on the
Judiciary’, 10 African Journal of Legal Studies 105 (2017).
§ Section 24 of the Interim Constitution and Section 33 of the Constitution of the
Republic of South Africa, 1996 (‘the Constitution’).
§ Sections 1, 2, 195-197 and 239 of the Constitution.
§ The Promotion of Administrative Justice Act, 2000 (‘PAJA’).
Introduction to Administrative Law
How your life is governed and regulated.
We obviously know we have 3 branches of government; judiciary, legislature and executive (chapter
9 institution being considered by some as a 4th branch) – we know they work together, to regulate
public life. Checks and balances and what not. They regulate our everyday lives (licenses/university
admissions/trade goods/restaurant operations etc.)
This course is about the exercise of regulating our lives through these public powers. It is all about
regulation – rule making.
Legislature – our rule makers – they make rules but will they be able to plan/identify the rules for
EVERY type of issue? Probably not. They can lay out general rules (a framework) but there may be
things that come up that aren’t covered, and then the executive members are given powers to
,implement these laws. General rule give others discretion to implement the rules. But how much
power can be given to the exec to implement the laws and how must they exercise these powers?
Example: X makes decision in the course (the general rule gives X the discretion on how to
implement the rules made by the LSC – so there is 1) rule making and 2) implementation of these
rules). But when the discretion is given to someone else (who wasn’t elected) to implement it can be
either narrow or broad.
We are concerned with this relationship – you have laws which are made by bodies with the power to
make it but they cannot implement the rules for every case so they must give that power to decision-
makers. So, how do we empower these people to make decisions but not give them such wide
discretion that it can operate adversely. So, administrative law asks how we regulate the exercise of
this discretion / public power?
Very basic example: toothpaste needs to go through a process to deem it safe – administrative bodies
were involved in making sure your toothpaste is safe and they had to comply with rules. This just
shows how regulation affects our everyday lives.
Judicial review is NB in this course – but don’t conflate administrative law with judicial review.
● What is administrative law?
It Regulates – want to empower the decision-makers to make rules but also want to constrain those
powers to ensure that necessary principles (fairness/procedural fairness/rationality) are complied with.
The exercise of PUBLIC power [or performance of public functions] (what is exercised by the state
– functionaries of the state. Note – not concerned with the exercise of PURELY PRIVATE
interactions. We will later consider what is deemed as public. Just know private actors can still
exercise public power). Example of private actors exercising public power: security companies/bodies
regulating sport like SA Football Association – when a player gets booted, is that private or public
power? However, a lot of these examples are up for debate and the court has tried to develop tests to
determine whether something is public or private. Know now that admin has a lot of grey areas.
The exercise of public power is essential. How do we make this exercise possible? Keep reminding
yourself how practically every aspect of our lives depend on this public power/regulatory functions.
- Phone networks
- Housing
- Eskom
- Food
- Transport
- Sports
- State procurement (when the state contracts for the provision for the goods or services – a big
place of corruption in SA. How should the tenders be allocated? Price? Expertise? BEE
requirements? If awarded, was it done procedurally fair and reasonable. These things are all
relevant with regards to state procurement.)
By public or private bodies
It:
★ Describes obligations and powers of those exercising public power (what they
can/must do);
★ Describes the ways in which those powers must be exercised (how they should do it);
★ Provides remedies where there has been maladministration.
,Concerned with the daily business of government (core aspect but is more than just this)
‘…the conduct of the bureaucracy…in carrying out the daily functions of the state
which necessarily involves the application of policy, usually after it translation into
law, with direct and immediate consequences for individuals or groups of
individuals.’ (Greys Marine Hout Bay v Minister of Public Works)
Above expanded – everyday decisions make up the bureaucracy – home affairs for example.
The picture above is a perfect quote of admin law. ICE talk… They are given the power to
regulate illegal immigration and do it in a certain way. Are we comfortable with them
exercising their decision-making power in the way they are? Mandate is to regulate illegal
immigration - is their exercise of powers in achieving this mandate acceptable? (No, their
powers are WAY TOO BROAD/they are not exercising their powers properly. It is an abuse
of power, especially because people are not able to defend themselves.) We need to
determine 1) what powers they have been given, 2) how they must use it, 3) what happens if
there is maladministration.
The Constitution – regulating exercise of public power
➔ Section 1(c) – rule of law – the ‘mainspring’ of administrative law (Wade and Forsyth);
➔ Section 1(d) – accountability, responsiveness, openness
➔ Section 2 – Constitution is supreme law; law or conduct inconsistent with it is invalid,
and obligations imposed by it must be fulfilled.
➔ Section 195 – values and principles guiding the public administration (including
impartiality, responsiveness, public participation, accountability, transparency)
➔ Section 196 and 197
➢ Within the public administration there is a public service
➢ Public Service Commission must promote s195 values and principles in the
public service.
➔ Section 217 - Procurement must be in accordance with a fair, equitable, transparent,
competitive and cost-effective system.
➔ Chapter 9 Institutions
➔ Bill of Rights (s 33)
Admin law regulates the exercise of public power → some of it is administrative action!
In addition to the values in s1 – s33 tells us that pp must be exercised lawfully, reasonable,
and procedurally fair. Just read these sections bro idk.
PP is the big concept and a subset will constitute administrative action. Not ALL will
constitute administrative action but ALL PP must be subject to constraint. Admin action is
one type of PP.
PAJA – tells us what administrative action is + a lot of it is dedicated to judicial review as
well. It is a mechanism to control the exercise of PP.
33. Just administrative action
1. Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.
, 2. Everyone whose rights have been adversely affected by administrative action has the right
to be given written reasons.
3. National legislation must be enacted to give effect to these rights, and must
a. provide for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
b. impose a duty on the state to give effect to the rights in subsections (1) and (2); and
c. promote an efficient administration.
PAJA
● Section 33(3) - National legislation must be enacted to give effect to these rights…
● Promotion of Administrative Justice Act, 2000 (‘the PAJA’)
PAJA Tells us:
● What constitutes ‘administrative action’
● Grounds on which administrative action can be reviewed
● Procedure for reviewing administrative action
● Remedies in judicial review proceedings
We want to empower officials to do their jobs but to what extent? Is it to facilitate what
officials can do vs controlling them? How much do we want courts to be involved?
Role of Judicial Review
➔ One mechanism to control and/or facilitate the exercise of public power.
➔ Ability of courts to detect and correct instances of maladministration
➔ Continuous tension between the two aims of admin law
to empower officials to do their jobs
v
to control / limit those powers in order to protect rights
Purpose of judicial review of administrative action: To assess whether the government is acting within legal
limits. Judicial review also determines whether it is appropriate for courts to intervene in government decisions.
Key issue – how far can courts go?
1) Example: head of education dep – empowered to expel students from schools when they
misbehave. HOD expels X from a school. That is one decision.
2) Another decision is the Pres appointing a minister of education because he doesn’t like the old
one.
Should these decisions be treated differently? Yes. they are both clearly exercises of public power, but
the court should not apply the same constraints to them / treat them the same.
Should courts be able to do anything with a minister appointed by the pres? President is exercising
political power - SOP! The court cannot overstep into the president's discretion. Can review and test
on procedural grounds. Rationality review…there are differing views on this. The constitution grants
broad power to the president. No clear guidelines so we shouldn’t overstep.
