Summary Exam motes

QUESTION 2
TOPICS 12, 13 AND 15
TOPIC 12 – LAWFULNESS
 Lawfulness stands at the core of the general constitutional law principle of legality
and applies to all public actions.
 Section 33(1) of the Constitution provides that everyone has the right to administrative
action that is lawful.
 Lawfulness simply means that the administrative action and the authorization for that
action must be aligned.
 Involves comparing administrative action to authorization in relevant empowering
provision
 PAJA deals with unlawfulness as grounds of review
 At most basic, PAJA section 6(2)(i): administrative action can be reviewed if "the action
is unlawful"


PRIMARY REQUIREMENT - AUTHORIZATION
 For every action that an administrator takes, there must be a valid authorization in an
empowering provision.
 In the absence of such authorization, the administrative action will be unlawful.
 Constitutional Court Recognition: (Fedsure life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others ) confirms with the basic
notion of authorization.
 The PAJA provides that an administrative action can be reviewed if the action itself was
not authorized
 The issue typically is not that that there is no authorization, but rather that some aspect
of authorization does not align with the action
 A useful way to approach this exercise is to ask the questions: what was authorized, who
was authorized and how did the authorization prescribe the action to be taken? The
what, who and how questions can serve as a structure in terms of which one can
determine the lawfulness of any action, whether already taken or only contemplated.


KEY REQUIREMENTS OF LAWFULNESS
 There must be a valid authorization in an empowering provision
 Without authorization, administrative action will be unlawful
 Issue: alignment between aspects of authorization and action
 Essential to analyze empowering provision and compare with action

,Key Questions for Analysis
 What was authorized?
 Who was authorized?
 How did the authorization prescribe the action to be taken?
 Structure to determine lawfulness of any action
MISTAKES
 The final aspect of lawfulness is to consider mistake
 An administrator’s action may be unlawful if he/she makes a mistake either in law or fact
pertaining to his/her authorization.
 This mistake is purely in relation to the authorization
 The most established form of mistake that may lead to unlawfulness is in relation to the
empowering provision, commonly referred to as error of law
 In section 6(2)(d) of the PAJA, which stated that an administrative action will be unlawful
if it was influenced by an error of law.
 Administrative law requires that the administrator must take the administrative action
upon a correct interpretation of the applicable law, particularly the empowering provision.
 If the action is taken based on an incorrect interpretation of law, it may be unlawful.
 The ground for review should not be interpreted narrowly as only referring to the errors
in relation to empowering provision. Any error in law that materially impacts the decision
could result in the decision being set aside as unlawful.
 The Council for Medical Schemes v Genesis Medical Scheme: Established that an
administrator’s reliance on an incorrect judicial pronouncement may constitute a
reviewable error of law
Pepcor Retirement Fund Case
 Supreme Court of Appeal broke with common law position
 Material mistake of fact deemed ground of review going to lawfulness
 Principle: Decisions should be made on material facts that should have been available
Mistake of Fact
 Section 6(2)(e)(iii): Administrator must consider all relevant factors, ignore irrelevant
ones
 Mistaken facts constitute irrelevant considerations
 Correct facts constitute relevant considerations
Materiality Requirement
 Mistake must be material to impact lawfulness of administrative action

, TOPIC 13: PROCEDURAL FAIRNESS
 Constitutional requirements: Section 33 of the Constitution demands that all
administrative decisions are subject to procedural fairness standards
 Therefore, where the exercise of public power amounts to administrative action, section
33 provides that such power must be procedurally fair
 Regulated by PAJA (Promotion of Administrative Justice Act) Section 3 and 4
 Section 3:
- Applies when an administrative action affects any person
- The action must have a material and adverse effect
- It must also impact on rights or legitimate expectations
- Ensures procedural fairness in individual administrative decisions
 Section 4:
- Triggered when an administrative action materially and adversely affects rights
- Unlike Section 3, Section 4 applies when the impact is on the public, not just an
individual
- The public includes any group or class of people
- Administrative action affects a group or class if its impact is equal and impersonal.
 Requirements of section 4 provides that an administrator taking a decision that
will have a material and adverse general impact on the public may: hold a public
inquiry, follow a notice and comment procedure, follow a different but fair procedure
prescribed by an empowering provision or follow any other procedure that gives effect
section 3.


CONSEQUENCES OF FAILURE TO FOLLOW A FAIR PROCEDURE
 Non-compliance with standards in sections 3 and 4 of PAJA makes action reviewable
 Action may be set aside as invalid under section 8 of PAJA
 Section 6(2): courts can review action that was procedurally unfair
 Courts can review action with bias or reasonably suspected bias
Procedural Requirements [PAJA Section 3(2)(b)]
 Adequate notice of proposed administrative action
 Reasonable opportunity to make representations
 Clear statement of administrative action taken
 Adequate notice of any review or internal appeal
 Adequate notice of right to request reasons