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:
1
, 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).
2
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:
1
, 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).
2
