TOPIC 1: INTRODUCTION
THE NATURE OF ADMINISTRATIVE LAW
A quest for balancing rights, interests and obligations, in the determination of which public
and legal policy play a central role.
It is the part of constitutional law which both empowers those exercising public authority or
performing public functions through the law, and which holds accountable to rules of law all
those who exercise public power or perform public functions.
Body of the law that governs the activities of administrative functions of the government.
The function being performed is key to the question.
Example: Government tenders, issuing drivers licenses, public services and subsidies.
Four core case to help understand what administrative law is:
o President of RSA v SARFU 2000
- Core authority for the shift from an institutional to a functional.
- The focus is not on the actor of the action, but the function of the action.
o AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007
- The party in the case was a private actor.
- The question that flowed from this case is that, in light of SARFU, does this
judgement hold for private actors.
- The court held that it does, which is why we can subject private actors to
administrative law (an example of this is the social grant dilemma because
the private company was contracted to pay out – the question is whether
we can apply administrative law to this relationship? Yes, the function is
administrative).
o Logbro Properties CC v Bedderson NO 2003
- This dealt with contractual action by the state.
- There was an organ of state, but the SARFU logic applies to both including
and excluding administrative action. Therefore, not all actions by public
entities are subject to administrative law (some fall outside the scope). This
is particularly relevant for contracts.
o Chirwa v Transnet Ltd 2008
- There are two judgements that both dealt with jurisdiction.
- The minority judgement was of great importance. The court analysed the
question of whether the dismissal of a public employee is public action or
not. This will be dealt with at a later stage.
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 is important because it
gave us important insight into the relationship between the courts (legal actor) and the
administrative actors.
o Under the doctrine of declarence, the courts should also not tread sparse into the
administrative because courts do not take on an administrative function (but rather
judicial).
o Ultimately, courts should stay on the judicial side of the relationship which has very
far reaching implications for administrative law.
o Courts play a limited role.
An important implication of SARFU is that all public power is subject to scrutiny under law
(but not necessarily under administrative law). Administrative justice is a subset of legality
that only applies to certain situations.
1
, However, State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd
2018: The Constitutional Court settled the debate of – you don’t have a choice between
administrative justice and legality, they exist in a vertical relationship and if you have an
administrative action then you have to work with administrative justice. The converse is also
true.
S 33 OF THE CONSTITUTION
S 33: Everyone has the right to just administrative justice.
Two perspectives have to be kept in mind:
o Proactive
- Before the action has been taken. Allows administrative law to formulate
the action to be taken.
- Meant to be more dominant in our legal system but we are struggling to
make this shift.
- In South Africa we have very specific developmental challenges.
In our Constitution you see that our state is given the primary
responsibility to achieve those prospective goals.
E.g. Chapter 10 of the Constitution
- The primary goal of state administration is to achieve the Constitution’s
goal.
The goal is a developmental one.
Administrative law must help facilitate this by giving the state the
tools to do their job.
As important as the reactive perspective.
Lecturer argues proactive perspective is more important
because we need to improve our administrative action in
South Africa.
E.g. Improve Department of Home Affairs in relation
to refugees.
o Reactive
- Administrative action already exists, treat action against the law.
- Dominant in our legal tradition.
- This is where the state’s power is restricted.
- This is done by creating mechanisms in law to challenge in law the actions of
state administration.
- We react to actions already taken.
- The aim of the reaction is to limit or to protect the person who is feeling the
administrative justice.
When dealing with administrative law we need to think which perspective we are dealing
with (reactive or proactive).
o E.g. If you represent a refugee you will try to get Home Affairs to take a decision on
the refugee’s citizen status, but at the same time you need to consider how what
you are currently doing is going to get Home Affairs to up their game because this is
your ultimate goal.
o What am I trying to achieve in the current scenario and what will be the best route
to do so?
2
,SOURCES
When talking about sources, you need to distinguish between:
o Source of administrative power and source of administrative law
- Both are laws, but they play different roles in administrative analysis.
o The sources of administrative power are those sources in law, mostly statute, that
grants an administrator the power to do something.
- Usually a state official.
E.g. Person, institution and department.
- E.g. Companies Act
- The state can only do that which the law allows it to do
The state does not have plenary power such as natural persons.
We can do anything unless the law tells us we cannot.
Thus, they need to point to the source of their power.
The basis of administrative law.
o The focus of this module is on the sources of administrative law.
- The rules that tell us how administrators should act.
- Administrative law determines how the provision or administrative power
can be understood.
o Administrative law involves a combination of the source of administrative power
with the source of administrative law.
- Thus, there is a double layer of law.
o E.g. A child in a public school has been suspended from school.
- You will take the School’s Act (source of administrative power) and take
administrative law and combine the two.
o Sources
- Constitution
Interim Constitution
S 24 introduced the fundamental right to administrative
justice.
Final Constitution 1996
S 33 Just administrative action
(1) Everyone has the right to administrative action
that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely
affected by administrative action has the right to be
given written reasons.
(3) National legislation must be enacted to give
effect to these rights, and must –
(a) provide for the review of administrative
action by a court or, where appropriate, an
independent and impartial tribunal;
(b) impose a duty on the state to give effect
to the rights in subjections (1) and (2); and
(c) promote an efficient administration.
3
, S 33 will standalone but will be further supplemented in
national legislation.
Parliament was given 3 years, which it did by 2000
when it enacted PAJA.
- PAJA – Promotion of Administrative Justice Act 3 of 2000
- Common law
Prior to 1994 administrative law was exclusively based on English
common law.
This is shared with other commonwealth countries.
Supplementary source.
This will be returned to the extent that we cannot find an applicable
rule in the Constitution or PAJA.
- Case law
o Relationships between sources:
- Constitution and common law
Commissioner of Customs and Excise v Container Logistics;
Commissioner of Customs and Excise v Rennies Group t/a
Renfreight (SCA)
Relationship between S 24 Interim Constitution and the
common law.
The court held that the common law and the Constitution
are two different sources, distinct sources of administrative
law. They exist in parallel, thus, the parties have a choice as
on which to rely.
This had the result that two different courts were
considered to be the highest courts in administrative law,
depending on the source being relied on.
Common law: Supreme Court of Appeal
Constitution: Constitutional Court
Pharmaceutical Manufacturers of South Africa; In re: Ex parte
application of the President of RSA 2000 (CC)
The Constitutional Court rejected the notion of two different
parallel sources of administrative law and held that there
was only one source namely the Constitution.
Administrative law today is based on the Constitution
(primary source).
The common law continues to exist to the extent that it
amplifies the Constitution. The common law was subsumed
by the Constitution and so it a subsidiary, secondary source.
4
THE NATURE OF ADMINISTRATIVE LAW
A quest for balancing rights, interests and obligations, in the determination of which public
and legal policy play a central role.
It is the part of constitutional law which both empowers those exercising public authority or
performing public functions through the law, and which holds accountable to rules of law all
those who exercise public power or perform public functions.
Body of the law that governs the activities of administrative functions of the government.
The function being performed is key to the question.
Example: Government tenders, issuing drivers licenses, public services and subsidies.
Four core case to help understand what administrative law is:
o President of RSA v SARFU 2000
- Core authority for the shift from an institutional to a functional.
- The focus is not on the actor of the action, but the function of the action.
o AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007
- The party in the case was a private actor.
- The question that flowed from this case is that, in light of SARFU, does this
judgement hold for private actors.
- The court held that it does, which is why we can subject private actors to
administrative law (an example of this is the social grant dilemma because
the private company was contracted to pay out – the question is whether
we can apply administrative law to this relationship? Yes, the function is
administrative).
o Logbro Properties CC v Bedderson NO 2003
- This dealt with contractual action by the state.
- There was an organ of state, but the SARFU logic applies to both including
and excluding administrative action. Therefore, not all actions by public
entities are subject to administrative law (some fall outside the scope). This
is particularly relevant for contracts.
o Chirwa v Transnet Ltd 2008
- There are two judgements that both dealt with jurisdiction.
- The minority judgement was of great importance. The court analysed the
question of whether the dismissal of a public employee is public action or
not. This will be dealt with at a later stage.
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 is important because it
gave us important insight into the relationship between the courts (legal actor) and the
administrative actors.
o Under the doctrine of declarence, the courts should also not tread sparse into the
administrative because courts do not take on an administrative function (but rather
judicial).
o Ultimately, courts should stay on the judicial side of the relationship which has very
far reaching implications for administrative law.
o Courts play a limited role.
An important implication of SARFU is that all public power is subject to scrutiny under law
(but not necessarily under administrative law). Administrative justice is a subset of legality
that only applies to certain situations.
1
, However, State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd
2018: The Constitutional Court settled the debate of – you don’t have a choice between
administrative justice and legality, they exist in a vertical relationship and if you have an
administrative action then you have to work with administrative justice. The converse is also
true.
S 33 OF THE CONSTITUTION
S 33: Everyone has the right to just administrative justice.
Two perspectives have to be kept in mind:
o Proactive
- Before the action has been taken. Allows administrative law to formulate
the action to be taken.
- Meant to be more dominant in our legal system but we are struggling to
make this shift.
- In South Africa we have very specific developmental challenges.
In our Constitution you see that our state is given the primary
responsibility to achieve those prospective goals.
E.g. Chapter 10 of the Constitution
- The primary goal of state administration is to achieve the Constitution’s
goal.
The goal is a developmental one.
Administrative law must help facilitate this by giving the state the
tools to do their job.
As important as the reactive perspective.
Lecturer argues proactive perspective is more important
because we need to improve our administrative action in
South Africa.
E.g. Improve Department of Home Affairs in relation
to refugees.
o Reactive
- Administrative action already exists, treat action against the law.
- Dominant in our legal tradition.
- This is where the state’s power is restricted.
- This is done by creating mechanisms in law to challenge in law the actions of
state administration.
- We react to actions already taken.
- The aim of the reaction is to limit or to protect the person who is feeling the
administrative justice.
When dealing with administrative law we need to think which perspective we are dealing
with (reactive or proactive).
o E.g. If you represent a refugee you will try to get Home Affairs to take a decision on
the refugee’s citizen status, but at the same time you need to consider how what
you are currently doing is going to get Home Affairs to up their game because this is
your ultimate goal.
o What am I trying to achieve in the current scenario and what will be the best route
to do so?
2
,SOURCES
When talking about sources, you need to distinguish between:
o Source of administrative power and source of administrative law
- Both are laws, but they play different roles in administrative analysis.
o The sources of administrative power are those sources in law, mostly statute, that
grants an administrator the power to do something.
- Usually a state official.
E.g. Person, institution and department.
- E.g. Companies Act
- The state can only do that which the law allows it to do
The state does not have plenary power such as natural persons.
We can do anything unless the law tells us we cannot.
Thus, they need to point to the source of their power.
The basis of administrative law.
o The focus of this module is on the sources of administrative law.
- The rules that tell us how administrators should act.
- Administrative law determines how the provision or administrative power
can be understood.
o Administrative law involves a combination of the source of administrative power
with the source of administrative law.
- Thus, there is a double layer of law.
o E.g. A child in a public school has been suspended from school.
- You will take the School’s Act (source of administrative power) and take
administrative law and combine the two.
o Sources
- Constitution
Interim Constitution
S 24 introduced the fundamental right to administrative
justice.
Final Constitution 1996
S 33 Just administrative action
(1) Everyone has the right to administrative action
that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely
affected by administrative action has the right to be
given written reasons.
(3) National legislation must be enacted to give
effect to these rights, and must –
(a) provide for the review of administrative
action by a court or, where appropriate, an
independent and impartial tribunal;
(b) impose a duty on the state to give effect
to the rights in subjections (1) and (2); and
(c) promote an efficient administration.
3
, S 33 will standalone but will be further supplemented in
national legislation.
Parliament was given 3 years, which it did by 2000
when it enacted PAJA.
- PAJA – Promotion of Administrative Justice Act 3 of 2000
- Common law
Prior to 1994 administrative law was exclusively based on English
common law.
This is shared with other commonwealth countries.
Supplementary source.
This will be returned to the extent that we cannot find an applicable
rule in the Constitution or PAJA.
- Case law
o Relationships between sources:
- Constitution and common law
Commissioner of Customs and Excise v Container Logistics;
Commissioner of Customs and Excise v Rennies Group t/a
Renfreight (SCA)
Relationship between S 24 Interim Constitution and the
common law.
The court held that the common law and the Constitution
are two different sources, distinct sources of administrative
law. They exist in parallel, thus, the parties have a choice as
on which to rely.
This had the result that two different courts were
considered to be the highest courts in administrative law,
depending on the source being relied on.
Common law: Supreme Court of Appeal
Constitution: Constitutional Court
Pharmaceutical Manufacturers of South Africa; In re: Ex parte
application of the President of RSA 2000 (CC)
The Constitutional Court rejected the notion of two different
parallel sources of administrative law and held that there
was only one source namely the Constitution.
Administrative law today is based on the Constitution
(primary source).
The common law continues to exist to the extent that it
amplifies the Constitution. The common law was subsumed
by the Constitution and so it a subsidiary, secondary source.
4
