FOUNDATIONS
Administrative law
Body of legal rules regulation performance of administrative action to ensure it
achieves administrative justice
- Admin action = public power exercised in the day-to-day running of the state.
Admin justice = when admin action is exercised in a way that is lawful, reasonable,
fair
- Judicial review is used to achieve admin justice
> Courts scrutinize admin action to see if it conforms with right to admin
action.
Admin law concerns 2 elements of admin action
1. Authorization of admin action (empowerment)
> Admin law empowers public admin to do good for the public.
2. Regulation of admin action (accountability)
> Admin law holds public admin accountable by placing limits on the
decision-making abilities and ensures just admin action.
> Admin action must comply with s33(1) and (2) of Constitution.
Sources regulating public power
S1 Constitution
- United Democratic movement
> Founds values in s1 inform the constitution’s interpretation, other laws and
sets the standard which all laws must comply with.
S32 of Constitution
- Everyone has the right of access to
> Any info held by the state that is required for the exercise or protection of
any rights.
PAIA
,- S32 Constitution and PAIA impose a duty on public admin to provide access to
information held by it and to be transparent in the exercise of power.
S33 Constitution
- S33(1) = right to admin action which is lawful, reasonable and procedurally fair.
- S33(2) = people’s whose rights have been adversely affected by admin action
has the right to written reasons.
PAJA
- S33 of Constitution and PAJA require public admin to be transparent and
accountable in exercise public power
> Gives effect to right of admin justice.
S195 Constitution
- Democratic values must be considered by public admin in the performance of its
functions.
Public power in terms of admin law
Public power is
- Power exercised in day-to-day running of the country.
- Power exercised by private bodies whose autonomy is restricted by state
involvement and control.
- Power that is unequal and exercised coercively.
Exercise of admin action and the rule of law
S1(c) Constitution
- The rule of law is a foundational value in the Constitution and informs the
interpretation of the right to admin action (s33 Constitution).
The exercise of public power is subject to the rule of law – everyone is subjected to
the law and is equal under it
- Decisions of public admin must be clear, accessible consistently applied and
must protect the right to admin action.
- Public admin should be open and transparent regarding decision-making.
, - People aggrieved by actions of public administration must have access to justice.
Admin law and separation of powers
Doctrine of separation of powers – legislature, judiciary and executive have their own
powers with functional independence that exist between them (s43 Constitution)
- There is no absolute separation of powers.
Legislature
Makes laws and exercises parliamentary oversight of executive conduct
- Legislature acts as a watch dog over the exercise of executive authority and
holds them accountable for conduct.
Executive branch
Formulate policy (executive power)
- Performed by the highest-ranking executive officials.
- Agenda/policy setting for the state.
- Executive implements laws and administers policies – this is public admin
Implementing and administering laws passed by legislature and orders decisions
issued by the judiciary (admin power)
- Lower ranking individuals implement laws and policies.
- Conduct must comply with admin law.
- Less discretion than executive power.
Role of judiciary
Interpret and apply law
- Ensure the exercise of power by the other branches are within constitutional
bounds.
- Exercise deference and judicial review.
Admin law and social justice
An aim of admin law is to achieve social justice
Administrative law
Body of legal rules regulation performance of administrative action to ensure it
achieves administrative justice
- Admin action = public power exercised in the day-to-day running of the state.
Admin justice = when admin action is exercised in a way that is lawful, reasonable,
fair
- Judicial review is used to achieve admin justice
> Courts scrutinize admin action to see if it conforms with right to admin
action.
Admin law concerns 2 elements of admin action
1. Authorization of admin action (empowerment)
> Admin law empowers public admin to do good for the public.
2. Regulation of admin action (accountability)
> Admin law holds public admin accountable by placing limits on the
decision-making abilities and ensures just admin action.
> Admin action must comply with s33(1) and (2) of Constitution.
Sources regulating public power
S1 Constitution
- United Democratic movement
> Founds values in s1 inform the constitution’s interpretation, other laws and
sets the standard which all laws must comply with.
S32 of Constitution
- Everyone has the right of access to
> Any info held by the state that is required for the exercise or protection of
any rights.
PAIA
,- S32 Constitution and PAIA impose a duty on public admin to provide access to
information held by it and to be transparent in the exercise of power.
S33 Constitution
- S33(1) = right to admin action which is lawful, reasonable and procedurally fair.
- S33(2) = people’s whose rights have been adversely affected by admin action
has the right to written reasons.
PAJA
- S33 of Constitution and PAJA require public admin to be transparent and
accountable in exercise public power
> Gives effect to right of admin justice.
S195 Constitution
- Democratic values must be considered by public admin in the performance of its
functions.
Public power in terms of admin law
Public power is
- Power exercised in day-to-day running of the country.
- Power exercised by private bodies whose autonomy is restricted by state
involvement and control.
- Power that is unequal and exercised coercively.
Exercise of admin action and the rule of law
S1(c) Constitution
- The rule of law is a foundational value in the Constitution and informs the
interpretation of the right to admin action (s33 Constitution).
The exercise of public power is subject to the rule of law – everyone is subjected to
the law and is equal under it
- Decisions of public admin must be clear, accessible consistently applied and
must protect the right to admin action.
- Public admin should be open and transparent regarding decision-making.
, - People aggrieved by actions of public administration must have access to justice.
Admin law and separation of powers
Doctrine of separation of powers – legislature, judiciary and executive have their own
powers with functional independence that exist between them (s43 Constitution)
- There is no absolute separation of powers.
Legislature
Makes laws and exercises parliamentary oversight of executive conduct
- Legislature acts as a watch dog over the exercise of executive authority and
holds them accountable for conduct.
Executive branch
Formulate policy (executive power)
- Performed by the highest-ranking executive officials.
- Agenda/policy setting for the state.
- Executive implements laws and administers policies – this is public admin
Implementing and administering laws passed by legislature and orders decisions
issued by the judiciary (admin power)
- Lower ranking individuals implement laws and policies.
- Conduct must comply with admin law.
- Less discretion than executive power.
Role of judiciary
Interpret and apply law
- Ensure the exercise of power by the other branches are within constitutional
bounds.
- Exercise deference and judicial review.
Admin law and social justice
An aim of admin law is to achieve social justice
