Distribution of the document is illegal
Administrative Law
Semester 1
Key
Purple = readings
Blue = section titles
blue highlight = week number
Red = cases
Case in bold mentioned in the text = prescribed case
Week 1
Topics
- The twin faces of administrative law – enabling and constraining the exercise of public power.
- The rule of law, judicial review, separation of powers.
- Judicialization of politics (and politicisation of the judiciary?)
- The development of administrative law and state power from the pre-constitutional common-law era to
a constitutionally grounded rights-based regime.
- Overview of the right to administrative justice/just administrative action under the interim and final
Constitutions.
- Overview of the Promotion of Administrative Justice Act, 2000 (‘PAJA’).
Reading
- Textbook 7-15 (8 pages)
- Pg 17-27 (10 pages)
Introduction
- Rules of law that govern the exercise of power by government
- Dual function: creates power and constraints in the sense that all rules of power must be lawful,
reasonable and procedurally fair
The focus of administrative law
- admin law overlaps to a considerable extent with constitutional law
- Admin law differs from constitutional law in its emphasis on one particular branch of the state system,
the public administration, and on a particular activity of the state: administrative action.
- administrative action:
- ‘the conduct of the bureaucracy . . . in carrying out the daily functions of the state which
necessarily involves the application of policy, usually after its translation into law, with direct and
immediate consequences for individuals or groups of individuals’
Kaya Borkowski
, Distribution of the document is illegal
- public administration: the organs and functionaries of the executive branch of the state that are
concerned with the day-to-day business of implementing law and administering policy
- Public administration covers local government administrations, the security forces and the many
parastatal organisations to be found in the modern state.
- These bodies include public enterprises, regulatory boards and other entities wholly or partly controlled
by government (eg. Eskom)
- administrative action is not performed only by members of the public administration
- Actions performed by entirely private entities are also capable of qualifying as administrative action,
provided those actions have a public character
- administrative law has an intimate relationship with the interpretation of legislation and legislative
drafting
- this branch of law is now principally governed by statute (the PAJA)
- legislation is by far the most prolific (abundant) source of administrative power
Aspects of administrative law
- administrative law can usefully be divided into general and particular categories
- Particular administrative law deals with the rules and principles that have developed in specialised
areas of administration eg. liquor licensing
- General administrative law expounds the rules and principles common to all or most kinds of
administrative action. We focus on general admin law
- General admin law has many functions.
- It describes the administration's powers and how they are used and regulated.
- It defines the administration's duties and allowed activities.
- Lastly, it offers several remedies for maladministration.
- Other than judicial review, remedies could include an appeal on the merits to an administrative tribunal,
a request to the Public Protector to undertake an investigation
- ‘administrative law’ is a much broader concept than ‘judicial review’
- Judicial review is essentially concerned with the judicial detection and correction of maladministration.
- Administrative law is concerned with non-judicial as well as judicial safeguards against poor
decision-making
- Administrative law empowers managers rather than merely just identifying faulty administration, unlike
judicial review, which diagnoses maladministration
The domain of administrative law
- It permeates virtually every facet of the legal system
- A fundamental debate in administrative law is how far the administrative process ought to be regulated
by law.
Kaya Borkowski
, Distribution of the document is illegal
- The principal reason for the vast spread of administrative law is that there has been tremendous growth
in the power, influence and activities of the state over the last hundred years and more
- public power is exercised not merely to achieve internal order and defence against external threats, but
also to engage in measures designed to achieve distributive justice.
- In SA -unlike in some other countries- privatisation does not offer an easy escape from the rules of
administrative law.
- government cannot be released from its obligations simply because it employs the strategy of
delegating its functions to another entity
- PAJA applies not only to organs of state but also to all natural or juristic persons exercising public
powers and performing public functions.
Global administrative law
- concerned with the global application of principles associated with domestic systems of administrative
law
- It responds to a worldwide shift in regulatory practices
- Entities (like the World Trade Organisation) are generally not under the control of domestic legal
systems.
- This has created an ‘accountability deficit’
- GAL responds to this in two main ways: by extending principles of national or domestic administrative
law to the global level, and by developing new mechanisms of administrative law
The impact of the Constitution on administrative law
The pre-democratic era and review at common law
- Before the Interim Constitution, judicial review was the primary control on the use of administrative
power
- the influence of English constitutional doctrines and grounds of review was enormous and is still
apparent today
- The doctrine of parliamentary sovereignty, also inherited from English law, was a fundamental
constraint on the powers of the courts in the pre-democratic era
- Parliament often ousted the courts’ jurisdiction, thus seeking to prevent them from exercising their
powers of review
Constitutional era and NB Constitutional provisions
- shift from parliamentary sovereignty to constitutional supremacy
- The Constitution promotes rational decision-making as opposed to the arbitrary exercise of public
power (as was the case in Apartheid times)
- the Constitution encourages the virtue of accountability and what Mureinik calls a ‘culture of
justification’
- The Constitution contains several provisions that are NB to administrative law.
Kaya Borkowski
, Distribution of the document is illegal
- s34: confers a right to have disputes settled by a court or other independent forum or tribunal
- s32: confers a right of access to information held by government (and other persons)
- s38: allows wide standing to enforce constitutional rights and empowers the courts to grant
‘appropriate relief’.
- Most NB is section 33
- Section 33 is not to be understood as a mere codification of the common-law principles of review.
- s 33 is nothing less than an entrenchment of rights to administrative justice.
- The rights entrenched apply to all law and bind all organs of state, require a two-thirds majority for their
amendment, and may be limited only in terms of s 36 of the Constitution
- The review power of the courts is no longer grounded in the common law and subservient to the whim
of the legislature. Instead, the Constitution itself is supreme
- Values of particular significance to administrative law include accountability, responsiveness and
openness (s1 Constitution)
- the rule of law and a particular aspect of it, the principle of legality are NB
- Although founding values are not rights, they can be ‘matched’ to Bill of Rights rights or bundles of
rights.
- the rule of law is matched = by s 33 and by s 9 (enshrining rights to equality) and by s 35
- Section 24 = serves the value of accountability
- openness is upheld matched by = s 32 (right of access to information)
- Administrative virtues that are promoted in s 195 include impartiality, responsiveness, public
participation, accountability and transparency.
- The importance of administrative efficiency is reflected in s 33(3)(c) = the legislation giving effect to the
right to just administrative action must ‘promote an efficient administration’.
- Chapter 9 = establishes various ‘state institutions supporting constitutional democracy’ – particularly
the Public Protector and the Auditor-General (who are important safeguards in the admin system)
- Advances democratic virtues like public participation
Administrative justice as an individual right
- administrative justice should be viewed not through the lens of individual rights but rather as a means to
control public power in the public interest
Kaya Borkowski
Administrative Law
Semester 1
Key
Purple = readings
Blue = section titles
blue highlight = week number
Red = cases
Case in bold mentioned in the text = prescribed case
Week 1
Topics
- The twin faces of administrative law – enabling and constraining the exercise of public power.
- The rule of law, judicial review, separation of powers.
- Judicialization of politics (and politicisation of the judiciary?)
- The development of administrative law and state power from the pre-constitutional common-law era to
a constitutionally grounded rights-based regime.
- Overview of the right to administrative justice/just administrative action under the interim and final
Constitutions.
- Overview of the Promotion of Administrative Justice Act, 2000 (‘PAJA’).
Reading
- Textbook 7-15 (8 pages)
- Pg 17-27 (10 pages)
Introduction
- Rules of law that govern the exercise of power by government
- Dual function: creates power and constraints in the sense that all rules of power must be lawful,
reasonable and procedurally fair
The focus of administrative law
- admin law overlaps to a considerable extent with constitutional law
- Admin law differs from constitutional law in its emphasis on one particular branch of the state system,
the public administration, and on a particular activity of the state: administrative action.
- administrative action:
- ‘the conduct of the bureaucracy . . . in carrying out the daily functions of the state which
necessarily involves the application of policy, usually after its translation into law, with direct and
immediate consequences for individuals or groups of individuals’
Kaya Borkowski
, Distribution of the document is illegal
- public administration: the organs and functionaries of the executive branch of the state that are
concerned with the day-to-day business of implementing law and administering policy
- Public administration covers local government administrations, the security forces and the many
parastatal organisations to be found in the modern state.
- These bodies include public enterprises, regulatory boards and other entities wholly or partly controlled
by government (eg. Eskom)
- administrative action is not performed only by members of the public administration
- Actions performed by entirely private entities are also capable of qualifying as administrative action,
provided those actions have a public character
- administrative law has an intimate relationship with the interpretation of legislation and legislative
drafting
- this branch of law is now principally governed by statute (the PAJA)
- legislation is by far the most prolific (abundant) source of administrative power
Aspects of administrative law
- administrative law can usefully be divided into general and particular categories
- Particular administrative law deals with the rules and principles that have developed in specialised
areas of administration eg. liquor licensing
- General administrative law expounds the rules and principles common to all or most kinds of
administrative action. We focus on general admin law
- General admin law has many functions.
- It describes the administration's powers and how they are used and regulated.
- It defines the administration's duties and allowed activities.
- Lastly, it offers several remedies for maladministration.
- Other than judicial review, remedies could include an appeal on the merits to an administrative tribunal,
a request to the Public Protector to undertake an investigation
- ‘administrative law’ is a much broader concept than ‘judicial review’
- Judicial review is essentially concerned with the judicial detection and correction of maladministration.
- Administrative law is concerned with non-judicial as well as judicial safeguards against poor
decision-making
- Administrative law empowers managers rather than merely just identifying faulty administration, unlike
judicial review, which diagnoses maladministration
The domain of administrative law
- It permeates virtually every facet of the legal system
- A fundamental debate in administrative law is how far the administrative process ought to be regulated
by law.
Kaya Borkowski
, Distribution of the document is illegal
- The principal reason for the vast spread of administrative law is that there has been tremendous growth
in the power, influence and activities of the state over the last hundred years and more
- public power is exercised not merely to achieve internal order and defence against external threats, but
also to engage in measures designed to achieve distributive justice.
- In SA -unlike in some other countries- privatisation does not offer an easy escape from the rules of
administrative law.
- government cannot be released from its obligations simply because it employs the strategy of
delegating its functions to another entity
- PAJA applies not only to organs of state but also to all natural or juristic persons exercising public
powers and performing public functions.
Global administrative law
- concerned with the global application of principles associated with domestic systems of administrative
law
- It responds to a worldwide shift in regulatory practices
- Entities (like the World Trade Organisation) are generally not under the control of domestic legal
systems.
- This has created an ‘accountability deficit’
- GAL responds to this in two main ways: by extending principles of national or domestic administrative
law to the global level, and by developing new mechanisms of administrative law
The impact of the Constitution on administrative law
The pre-democratic era and review at common law
- Before the Interim Constitution, judicial review was the primary control on the use of administrative
power
- the influence of English constitutional doctrines and grounds of review was enormous and is still
apparent today
- The doctrine of parliamentary sovereignty, also inherited from English law, was a fundamental
constraint on the powers of the courts in the pre-democratic era
- Parliament often ousted the courts’ jurisdiction, thus seeking to prevent them from exercising their
powers of review
Constitutional era and NB Constitutional provisions
- shift from parliamentary sovereignty to constitutional supremacy
- The Constitution promotes rational decision-making as opposed to the arbitrary exercise of public
power (as was the case in Apartheid times)
- the Constitution encourages the virtue of accountability and what Mureinik calls a ‘culture of
justification’
- The Constitution contains several provisions that are NB to administrative law.
Kaya Borkowski
, Distribution of the document is illegal
- s34: confers a right to have disputes settled by a court or other independent forum or tribunal
- s32: confers a right of access to information held by government (and other persons)
- s38: allows wide standing to enforce constitutional rights and empowers the courts to grant
‘appropriate relief’.
- Most NB is section 33
- Section 33 is not to be understood as a mere codification of the common-law principles of review.
- s 33 is nothing less than an entrenchment of rights to administrative justice.
- The rights entrenched apply to all law and bind all organs of state, require a two-thirds majority for their
amendment, and may be limited only in terms of s 36 of the Constitution
- The review power of the courts is no longer grounded in the common law and subservient to the whim
of the legislature. Instead, the Constitution itself is supreme
- Values of particular significance to administrative law include accountability, responsiveness and
openness (s1 Constitution)
- the rule of law and a particular aspect of it, the principle of legality are NB
- Although founding values are not rights, they can be ‘matched’ to Bill of Rights rights or bundles of
rights.
- the rule of law is matched = by s 33 and by s 9 (enshrining rights to equality) and by s 35
- Section 24 = serves the value of accountability
- openness is upheld matched by = s 32 (right of access to information)
- Administrative virtues that are promoted in s 195 include impartiality, responsiveness, public
participation, accountability and transparency.
- The importance of administrative efficiency is reflected in s 33(3)(c) = the legislation giving effect to the
right to just administrative action must ‘promote an efficient administration’.
- Chapter 9 = establishes various ‘state institutions supporting constitutional democracy’ – particularly
the Public Protector and the Auditor-General (who are important safeguards in the admin system)
- Advances democratic virtues like public participation
Administrative justice as an individual right
- administrative justice should be viewed not through the lens of individual rights but rather as a means to
control public power in the public interest
Kaya Borkowski
