CONTENTS
Page
INTRODUCTION ix
Part 1: STATE AUTHORITY AND THE HOLDERS OF SUCH AUTHORITY 1
LEARNING UNIT 1: Describing administrative law 2
1.1 An overview of the general features of administrative law 2
1.1.1 State authority 2
1.1.2 Administrative action 3
1.1.3 Just administrative action 3
1.1.4 Control of administrative action 3
1.2 A list of general concepts and technical terms often encountered in
administrative law, and their explanation 5
1.3 What is administrative law? 8
1.4 A brief list of abbreviations encountered in administrative law sources 18
1.5 Conclusion 18
LEARNING UNIT 2: The administrative-law relationship 20
2.1 The characteristics of the administrative-law relationship 22
2.2 The distinction between a general and an individual administrativelaw
relationship 24
2.2.1 The general or objective relationship 24
2.2.2 The individual or subjective relationship 24
2.3 Conclusion 26
LEARNING UNIT 3: The legal subjects of the administrative-law
relationship 27
3.1 The identification of the authoritative party in the administrativelaw
relationship 27
3.2 The role of associations, clubs and other “private” organisations 32
3.3 The persons – natural or juristic – whose rights and interests are
affected by the exercise of authority 33
3.4 Is the subordinate person powerless in the authoritative relationship? 34
3.5 The object of or reason for the administrative-law relationship 35
3.6 Conclusion 35
,LEARNING UNIT 4: The sources of administrative law 36
4.1 What are the sources of law? 36
4.2 The sources of administrative law 37
4.2.1 Binding or authoritative sources 38
4.2.2 Persuasive sources 46
4.3 Where to find administrative-law sources 47
4.4 How to find the sources of administrative law in a particular situation 48
4.5 Conclusion 50
Part 1: STATE AUTHORITY AND THE HOLDERS OF SUCH AUTHORITY 1
LEARNING UNIT 1: Describing administrative law
1.1 An overview of the general features of administrative law 2:
These principles relate to four key features of administrative law:
(At the same time, these features serve as indicators of the area in which administrative
law operates.)
1.1.1 State authority:
This is the public power – state authority – exercised by an organ of state or natural
or juristic person over another person or body in a subordinate or subservient
position.
When confronted with a problem in administrative law, the first question you will
need to ask is whether any person or body has acted as an organ of state.
If the person exercising a certain authority is not a state authority, administrative law
does not apply.
1.1.2 Administrative action:
This is the conduct of functionaries and institutions – administrators – when
exercising a public power or performing a public function in terms of any legislation.
Usually, it is in the form of a “decision” of the administrator.
the decision must have an adverse effect on the person or group of persons.
Section 1 of PAJA defines “administrative action”
See learning unit 5
1.1.3 Just administrative action:
Section 33
of the Constitution imposes a duty on all administrators exercising public power to
act lawfully, and reasonably, to follow fair procedures, and to give written reasons
when the rights of any person in the subordinate position are adversely affected.
The question you need to answer, having established that administrative action was
taken by an organ of state or natural or juristic person,
Is whether such action complied with the requirements for just administrative action
as found in
the Constitution of the Republic of South Africa, 1996,
the Promotion of Administrative Justice Act, 3 of 2000 (PAJA),
and the common law.
,Just administrative action” is discussed in learning units 6 to 10
1.1.4 Control of administrative action
This is the means of correcting or rectifying administrative action that is not just
or fair.
In short, the question is the following:
What is an aggrieved person entitled to should his or her objection lodged against
the administrative action be successful?
See learning units 11 to 12 for a discussion of this aspect of administrative law.
1.2 A list of general concepts and technical terms often encountered in administrative
law, and their explanation:
Accountability – a means or principle to control the arbitrary exercise of administrative
discretion of persons exercising authoritative or public power. Accountability
thus prevents erratic and wayward choices.
Administration – that part of the government (national, provincial or local) which
is mainly concerned with the implementation of legislation. In general terms,
the administration focuses on the day-to-day running or management of the
country by various government bodies, such as government departments
and their administrators and other organs of state (defined in s 239 of the
Constitution). See also “public administration” below.
Administrator – in terms of the PAJA, it means an organ of state or any natural or
juristic person taking administrative action.
Arbitrary action – is action based on random choice or impulse and not on reason,
in other words, unrestrained action.
Basic values and principles – in section 195(1) of the Constitution, the basic values
and principles governing public administration are set out. These values and
principles include the promotion of an open and transparent public administration
by providing the public with timely, accessible and accurate information
and the promotion of a high standard of professional ethics.
Bill of Rights – is the term to describe Chapter 2 of the Constitution. This Bill of
Rights is a list of basic (fundamental) rights which must be respected, protected
and upheld by government and all organs of state (and in certain instances by
private individuals as well). The constitutions of most modern countries have
a bill of rights (sometimes called a charter).
Case law – is a term describing the decisions of the courts and which are reported
in the Law Reports.
Common law – is the law which is not written down in legislation.
Constitution – “Constitution” can be understood both broadly and narrowly. In
the broad sense it includes the entire body of rules (written and unwritten)
governing the exercise of state authority in a particular state, as well as the
relationship between the citizens of a state and the state authorities. A constitution
also embodies the will of the people, reflecting the popular and current
values. A constitution must, furthermore, enjoy the support of the majority
of the people in a state. In short, the constitution of a country sets out the
legal rules by which the country is governed or managed. It also sets out the
limits to these powers. In the narrow sense it refers to the written document
in which these rules are contained. The South African Constitution is the
Constitution of the Republic of South Africa, 1996, unless we refer specifically
to the interim Constitution Act 200 of 1993.
, Constitutionalism – government in accordance with the Constitution. The government
derives its powers from and is bound by the Constitution. It refers to a
state where the law is supreme, and the government and state authorities are
bound by the Constitution.
Constitutional state – refers to a state in which constitutionalism (see constitutionalism)
prevails, in other words, a country where the law is supreme.
Delegated (subordinate) legislation – the legislation which is enacted by the executive
branch of government. It is not original parliamentary or provincial
or local government legislation.
Duty – means something a person or administrator has to do because it is legally
necessary. In other words, the person or administrator must do something.
See too “function” as well as “power”.
Executive (authority) – executive (authority) refers first to the political functionaries
or officials of the country: the president, deputy president, ministers (the
cabinet) and provincial premiers and members of executive councils (MECs).
Secondly, the term may also refer to the executive functions performed by
these functionaries.
Fons et origo – the Latin term for the “source and origin”.
Function – means performing a task (e.g. the administrator’s function is to issue a
permit). The word “function” encapsulates both the power (as the ability to
do something) and the duty (as the obligation to do something).
Government – the term “government” is ambiguous. In a broad sense as a collective
noun, it denotes the legislative, executive and judicial authority of the
country. As a general term, “government” covers all the functions and organs
of the state. In the narrow sense it is used to specify the executive organs of
state (the administration). In general, today, “government” is understood as
relating mainly to the executive function and bearing on the formation and
implementation of policy and law. The government is also the temporary bearer
of state authority, in other words, the government in power at a particular
time. It acts as the “agent” of the state. See also “state”.
Inter se – the Latin term for “between themselves”.
Legal subject – a person or entity that can have rights, duties and capacities. A
legal subject is a member of the legal community to whom the law applies
and for whose benefit the law exists. Legal personality is the capacity of being
a legal subject.
Judicial precedent (stare decisis) – means that the decision of a higher court is
binding on lower courts until such time as the decision is overruled by a
higher court. The court is also bound by its own previous decisions unless
they are clearly wrong.
Judicial authority – refers to all the courts in the Republic (see s 165(1) of the
Constitution).
Judicial review – the power of the higher courts to control administrative action
through an inquiry into any excess of power, irregularity of procedure, and
Just administrative action – an umbrella term for action or conduct by any person
or body in authority which is lawful, reasonable and procedurally fair (s 33 of
the Constitution). It sets the standard for all administrative action.
Law – refers to all forms of law, that is, the Constitution, statute law (legislation),
common
law and customary law. Common law and customary law are forms of
law not contained in legislation, but which have been “handed down” from
generation to generation. Today, this form of law is found largely in the judgments
Page
INTRODUCTION ix
Part 1: STATE AUTHORITY AND THE HOLDERS OF SUCH AUTHORITY 1
LEARNING UNIT 1: Describing administrative law 2
1.1 An overview of the general features of administrative law 2
1.1.1 State authority 2
1.1.2 Administrative action 3
1.1.3 Just administrative action 3
1.1.4 Control of administrative action 3
1.2 A list of general concepts and technical terms often encountered in
administrative law, and their explanation 5
1.3 What is administrative law? 8
1.4 A brief list of abbreviations encountered in administrative law sources 18
1.5 Conclusion 18
LEARNING UNIT 2: The administrative-law relationship 20
2.1 The characteristics of the administrative-law relationship 22
2.2 The distinction between a general and an individual administrativelaw
relationship 24
2.2.1 The general or objective relationship 24
2.2.2 The individual or subjective relationship 24
2.3 Conclusion 26
LEARNING UNIT 3: The legal subjects of the administrative-law
relationship 27
3.1 The identification of the authoritative party in the administrativelaw
relationship 27
3.2 The role of associations, clubs and other “private” organisations 32
3.3 The persons – natural or juristic – whose rights and interests are
affected by the exercise of authority 33
3.4 Is the subordinate person powerless in the authoritative relationship? 34
3.5 The object of or reason for the administrative-law relationship 35
3.6 Conclusion 35
,LEARNING UNIT 4: The sources of administrative law 36
4.1 What are the sources of law? 36
4.2 The sources of administrative law 37
4.2.1 Binding or authoritative sources 38
4.2.2 Persuasive sources 46
4.3 Where to find administrative-law sources 47
4.4 How to find the sources of administrative law in a particular situation 48
4.5 Conclusion 50
Part 1: STATE AUTHORITY AND THE HOLDERS OF SUCH AUTHORITY 1
LEARNING UNIT 1: Describing administrative law
1.1 An overview of the general features of administrative law 2:
These principles relate to four key features of administrative law:
(At the same time, these features serve as indicators of the area in which administrative
law operates.)
1.1.1 State authority:
This is the public power – state authority – exercised by an organ of state or natural
or juristic person over another person or body in a subordinate or subservient
position.
When confronted with a problem in administrative law, the first question you will
need to ask is whether any person or body has acted as an organ of state.
If the person exercising a certain authority is not a state authority, administrative law
does not apply.
1.1.2 Administrative action:
This is the conduct of functionaries and institutions – administrators – when
exercising a public power or performing a public function in terms of any legislation.
Usually, it is in the form of a “decision” of the administrator.
the decision must have an adverse effect on the person or group of persons.
Section 1 of PAJA defines “administrative action”
See learning unit 5
1.1.3 Just administrative action:
Section 33
of the Constitution imposes a duty on all administrators exercising public power to
act lawfully, and reasonably, to follow fair procedures, and to give written reasons
when the rights of any person in the subordinate position are adversely affected.
The question you need to answer, having established that administrative action was
taken by an organ of state or natural or juristic person,
Is whether such action complied with the requirements for just administrative action
as found in
the Constitution of the Republic of South Africa, 1996,
the Promotion of Administrative Justice Act, 3 of 2000 (PAJA),
and the common law.
,Just administrative action” is discussed in learning units 6 to 10
1.1.4 Control of administrative action
This is the means of correcting or rectifying administrative action that is not just
or fair.
In short, the question is the following:
What is an aggrieved person entitled to should his or her objection lodged against
the administrative action be successful?
See learning units 11 to 12 for a discussion of this aspect of administrative law.
1.2 A list of general concepts and technical terms often encountered in administrative
law, and their explanation:
Accountability – a means or principle to control the arbitrary exercise of administrative
discretion of persons exercising authoritative or public power. Accountability
thus prevents erratic and wayward choices.
Administration – that part of the government (national, provincial or local) which
is mainly concerned with the implementation of legislation. In general terms,
the administration focuses on the day-to-day running or management of the
country by various government bodies, such as government departments
and their administrators and other organs of state (defined in s 239 of the
Constitution). See also “public administration” below.
Administrator – in terms of the PAJA, it means an organ of state or any natural or
juristic person taking administrative action.
Arbitrary action – is action based on random choice or impulse and not on reason,
in other words, unrestrained action.
Basic values and principles – in section 195(1) of the Constitution, the basic values
and principles governing public administration are set out. These values and
principles include the promotion of an open and transparent public administration
by providing the public with timely, accessible and accurate information
and the promotion of a high standard of professional ethics.
Bill of Rights – is the term to describe Chapter 2 of the Constitution. This Bill of
Rights is a list of basic (fundamental) rights which must be respected, protected
and upheld by government and all organs of state (and in certain instances by
private individuals as well). The constitutions of most modern countries have
a bill of rights (sometimes called a charter).
Case law – is a term describing the decisions of the courts and which are reported
in the Law Reports.
Common law – is the law which is not written down in legislation.
Constitution – “Constitution” can be understood both broadly and narrowly. In
the broad sense it includes the entire body of rules (written and unwritten)
governing the exercise of state authority in a particular state, as well as the
relationship between the citizens of a state and the state authorities. A constitution
also embodies the will of the people, reflecting the popular and current
values. A constitution must, furthermore, enjoy the support of the majority
of the people in a state. In short, the constitution of a country sets out the
legal rules by which the country is governed or managed. It also sets out the
limits to these powers. In the narrow sense it refers to the written document
in which these rules are contained. The South African Constitution is the
Constitution of the Republic of South Africa, 1996, unless we refer specifically
to the interim Constitution Act 200 of 1993.
, Constitutionalism – government in accordance with the Constitution. The government
derives its powers from and is bound by the Constitution. It refers to a
state where the law is supreme, and the government and state authorities are
bound by the Constitution.
Constitutional state – refers to a state in which constitutionalism (see constitutionalism)
prevails, in other words, a country where the law is supreme.
Delegated (subordinate) legislation – the legislation which is enacted by the executive
branch of government. It is not original parliamentary or provincial
or local government legislation.
Duty – means something a person or administrator has to do because it is legally
necessary. In other words, the person or administrator must do something.
See too “function” as well as “power”.
Executive (authority) – executive (authority) refers first to the political functionaries
or officials of the country: the president, deputy president, ministers (the
cabinet) and provincial premiers and members of executive councils (MECs).
Secondly, the term may also refer to the executive functions performed by
these functionaries.
Fons et origo – the Latin term for the “source and origin”.
Function – means performing a task (e.g. the administrator’s function is to issue a
permit). The word “function” encapsulates both the power (as the ability to
do something) and the duty (as the obligation to do something).
Government – the term “government” is ambiguous. In a broad sense as a collective
noun, it denotes the legislative, executive and judicial authority of the
country. As a general term, “government” covers all the functions and organs
of the state. In the narrow sense it is used to specify the executive organs of
state (the administration). In general, today, “government” is understood as
relating mainly to the executive function and bearing on the formation and
implementation of policy and law. The government is also the temporary bearer
of state authority, in other words, the government in power at a particular
time. It acts as the “agent” of the state. See also “state”.
Inter se – the Latin term for “between themselves”.
Legal subject – a person or entity that can have rights, duties and capacities. A
legal subject is a member of the legal community to whom the law applies
and for whose benefit the law exists. Legal personality is the capacity of being
a legal subject.
Judicial precedent (stare decisis) – means that the decision of a higher court is
binding on lower courts until such time as the decision is overruled by a
higher court. The court is also bound by its own previous decisions unless
they are clearly wrong.
Judicial authority – refers to all the courts in the Republic (see s 165(1) of the
Constitution).
Judicial review – the power of the higher courts to control administrative action
through an inquiry into any excess of power, irregularity of procedure, and
Just administrative action – an umbrella term for action or conduct by any person
or body in authority which is lawful, reasonable and procedurally fair (s 33 of
the Constitution). It sets the standard for all administrative action.
Law – refers to all forms of law, that is, the Constitution, statute law (legislation),
common
law and customary law. Common law and customary law are forms of
law not contained in legislation, but which have been “handed down” from
generation to generation. Today, this form of law is found largely in the judgments
