1
ADL2601
MAY/JUNE 2017
ANSWERS
, 2
QUESTION 1
1.1 An administrative-law relationship is a relationship between two or more legal subjects in which one
is a person or body who is clothed with state authority and is able to exercise the authority over the
other. The exercise of power may affect the rights and/or interests of the person(s) in a subordinate
position. It is therefore 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. In an individual administrative-law relationship the
rules apply personally and specifically between the parties. The relationship is created by individual
administrative decisions
In the set of facts, the individual administrative-law relationship is applicable since an individual
relationship exists between Ms Naidoo and the Department of Home Affairs.
1.2 Section 1 of PAJA defines "administrative action” as any decision taken, or any failure to take a
decision, by –
(a) an organ of state, when-
(i) exercising a power 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; or
(b) a natural or juristic person, other than 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.
There are exceptions to the definition. These exceptions are, however, not applicable to the given set of
facts. The decision to reject Ms Naidoo’s application for asylum amounts to administrative action
because it complies with the definition in that it involves a decision by an organ of state (the
Department of Home Affairs, authorized refugee status determination officer in the Department of
Home Affairs) exercising a public power or performing a public function in terms of any legislation which
has adversely affected the rights of a person (Ms Naidoo’s) and which appears to have had a direct
external legal effect.
1.3 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.
ADL2601
MAY/JUNE 2017
ANSWERS
, 2
QUESTION 1
1.1 An administrative-law relationship is a relationship between two or more legal subjects in which one
is a person or body who is clothed with state authority and is able to exercise the authority over the
other. The exercise of power may affect the rights and/or interests of the person(s) in a subordinate
position. It is therefore 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. In an individual administrative-law relationship the
rules apply personally and specifically between the parties. The relationship is created by individual
administrative decisions
In the set of facts, the individual administrative-law relationship is applicable since an individual
relationship exists between Ms Naidoo and the Department of Home Affairs.
1.2 Section 1 of PAJA defines "administrative action” as any decision taken, or any failure to take a
decision, by –
(a) an organ of state, when-
(i) exercising a power 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; or
(b) a natural or juristic person, other than 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.
There are exceptions to the definition. These exceptions are, however, not applicable to the given set of
facts. The decision to reject Ms Naidoo’s application for asylum amounts to administrative action
because it complies with the definition in that it involves a decision by an organ of state (the
Department of Home Affairs, authorized refugee status determination officer in the Department of
Home Affairs) exercising a public power or performing a public function in terms of any legislation which
has adversely affected the rights of a person (Ms Naidoo’s) and which appears to have had a direct
external legal effect.
1.3 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.
