Administrative Law 2021
Semester 1
Assignment 01
Set of facts
The Minister of Transport decides to close all taxi routes and the portion of
the taxi ranks operated by the Mangaung Taxi Association (MTA). The
Minister plans to introduce a new bus service system, which has
commonly become known as the Batho Pele (BP). The purpose of the BP is
to improve public transport in the North West Province. MTA is aggrieved
by the decision of the Minister and points out that the BP can be
implemented on other routes where no form of transport is available and
furthermore that the consequence would be that its 900 members would
be without jobs. MTA has persistently tried to make these representations
to the Minister. The Minister has refused to receive their representations
and has made no attempt to give reasons for the decision to close all taxi
routes and the portion of the taxi ranks operated by MTA.
MTA contacts you. Advise MTA on the following and give well-
substantiated reasons for all your answers.
Question 1
a) Briefly explain what an administrative-law relationship is. Do you
think MTA is a subject of an administrative-law relationship?
b) Identify the organs of state in the set of facts and substantiate your
answer with reference to the definition of “organ of state” as
provided in the Constitution.
c) Does the decision to close all taxi routes and the portion of the taxi
ranks operated by MTA constitute procedurally fair administrative
action in terms of PAJA?
d) Explain the concept of proportionality with reference to the
reasonableness of the decision to close all taxi routes and the
portion of the taxi ranks operated by MTA.
Answers
Question one:
a) An administrative – law relationship exists between two parties in an
unequal relationship. One of the subjects is a person or body clothed
in state authority that is able to exercise that authority over a
person or body in a subordinate position whose rights are affected
by the action.
Yes, MTA is a subject of an administrative – law relationship (an individual
administrative – law relationship where rules apply personally and
specifically between the parties and relationship is created by individual
administrative decisions).
b) In terms of section 239 of the Constitution the following is an organ
of state:
The Minister of Transport (any other functionary or institution that (i)
, Exercises a power or performs a function in terms of the Constitution or a
provincial constitution)
c) No the decision to close all taxi routes does not constitute fair
administrative action in terms of PAJA. Fair administrative practice
depends on the circumstances of each case. (Section 3(2)(a) of
PAJA).
Mandatory requirements: (these seem like a codification of rules of
natural justice) (Section 3(2)(b)of PAJA)
Adequate notice of the nature and purpose of proposed action
Reasonable opportunity to make representations
Clear statement of administrative action
Adequate notice of right of review or internal appeal
Adequate notice if right to request reasons.
Section 3(5) of PAJA states that the administrator may also follow a
different but fair procedure if the empowering provision authorises it.
MTA had not received procedurally fair treatment in terms of PAJA
because inter alia, MTA was not given an opportunity to make
representations; and was not given reasons for the administrative action.
d) The proportionality principle means that the harm to the individual
should not be disproportionate to the benefit to the community. The
principle of proportionality has three elements:
1. Suitability: this requires the administrator taking the decision to use the
most appropriate means available for achieving the purpose-a rational
connection between the means and the end.
2. Necessity: means that the administrator must take only such steps as
are necessary if any prejudice to an individual is involved. In other words,
the administrator must choose the action that causes least harm to those
who will be affected by the measure.
3. Weighing up the advantages and disadvantages: (also known as
"narrow proportionality"): this self-explanatory principle states that the
means must not be out of proportion to the end in balancing the result
against the potential for loss.
The decision to close all taxi routes and a portion of the MTA's taxi ranks
fails to meet the three proportionality criteria. There does not appear to
be a reasonable connection between the decision (to close all taxi routes
and the portion of the taxi ranks operated by MTA) and the improvement
of public transportation in the North West Province. Closing all taxi routes
and a portion of the MTA-run taxi ranks do not seem to be necessary steps
toward improving public transportation in the North West Province. The
disadvantages outweigh the advantages.
Semester 1
Assignment 01
Set of facts
The Minister of Transport decides to close all taxi routes and the portion of
the taxi ranks operated by the Mangaung Taxi Association (MTA). The
Minister plans to introduce a new bus service system, which has
commonly become known as the Batho Pele (BP). The purpose of the BP is
to improve public transport in the North West Province. MTA is aggrieved
by the decision of the Minister and points out that the BP can be
implemented on other routes where no form of transport is available and
furthermore that the consequence would be that its 900 members would
be without jobs. MTA has persistently tried to make these representations
to the Minister. The Minister has refused to receive their representations
and has made no attempt to give reasons for the decision to close all taxi
routes and the portion of the taxi ranks operated by MTA.
MTA contacts you. Advise MTA on the following and give well-
substantiated reasons for all your answers.
Question 1
a) Briefly explain what an administrative-law relationship is. Do you
think MTA is a subject of an administrative-law relationship?
b) Identify the organs of state in the set of facts and substantiate your
answer with reference to the definition of “organ of state” as
provided in the Constitution.
c) Does the decision to close all taxi routes and the portion of the taxi
ranks operated by MTA constitute procedurally fair administrative
action in terms of PAJA?
d) Explain the concept of proportionality with reference to the
reasonableness of the decision to close all taxi routes and the
portion of the taxi ranks operated by MTA.
Answers
Question one:
a) An administrative – law relationship exists between two parties in an
unequal relationship. One of the subjects is a person or body clothed
in state authority that is able to exercise that authority over a
person or body in a subordinate position whose rights are affected
by the action.
Yes, MTA is a subject of an administrative – law relationship (an individual
administrative – law relationship where rules apply personally and
specifically between the parties and relationship is created by individual
administrative decisions).
b) In terms of section 239 of the Constitution the following is an organ
of state:
The Minister of Transport (any other functionary or institution that (i)
, Exercises a power or performs a function in terms of the Constitution or a
provincial constitution)
c) No the decision to close all taxi routes does not constitute fair
administrative action in terms of PAJA. Fair administrative practice
depends on the circumstances of each case. (Section 3(2)(a) of
PAJA).
Mandatory requirements: (these seem like a codification of rules of
natural justice) (Section 3(2)(b)of PAJA)
Adequate notice of the nature and purpose of proposed action
Reasonable opportunity to make representations
Clear statement of administrative action
Adequate notice of right of review or internal appeal
Adequate notice if right to request reasons.
Section 3(5) of PAJA states that the administrator may also follow a
different but fair procedure if the empowering provision authorises it.
MTA had not received procedurally fair treatment in terms of PAJA
because inter alia, MTA was not given an opportunity to make
representations; and was not given reasons for the administrative action.
d) The proportionality principle means that the harm to the individual
should not be disproportionate to the benefit to the community. The
principle of proportionality has three elements:
1. Suitability: this requires the administrator taking the decision to use the
most appropriate means available for achieving the purpose-a rational
connection between the means and the end.
2. Necessity: means that the administrator must take only such steps as
are necessary if any prejudice to an individual is involved. In other words,
the administrator must choose the action that causes least harm to those
who will be affected by the measure.
3. Weighing up the advantages and disadvantages: (also known as
"narrow proportionality"): this self-explanatory principle states that the
means must not be out of proportion to the end in balancing the result
against the potential for loss.
The decision to close all taxi routes and a portion of the MTA's taxi ranks
fails to meet the three proportionality criteria. There does not appear to
be a reasonable connection between the decision (to close all taxi routes
and the portion of the taxi ranks operated by MTA) and the improvement
of public transportation in the North West Province. Closing all taxi routes
and a portion of the MTA-run taxi ranks do not seem to be necessary steps
toward improving public transportation in the North West Province. The
disadvantages outweigh the advantages.
