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EXAM PREP ADL201M – 2010DEFINITION OF AN ADMINISTRATIVE LAW RELATIONSHIP:
An administrative relationship exists between 2 or more people where:
○ At least one of the subjects is a person or body clothed in state authority,
○ Who is able to exercise authority over a person or body in a subordinate position,
○ Whose rights are affected by the action
○ An unequal relationship
2 kinds of admin-law relationships:
General admin-law relationship
○ Legal rules governing the relationship apply to all subjects in a particular group
○ Created by, changed and terminated by legislation
Individual admin-law relationship
○ Legal rules apply personally and specifically between parties
○ Created by individual admin-law decisions
DEFINITION OF ADMINISTRATIVE ACTION ITO PAJA:
Admin action means a decision taken or failure to take a decision by:
(a) an organ of state in exercising a power ito the Const, or a provincial const, or in
exercising a public power or performing a public function ito any legislation
Or
(b) a natural or juristic person which is not an organ of state when exercising a
public power or performing a public function ito an empowering provision, which
adversely affects the rights of any person and which has a direct external legal
effect.
PAJA also defines ‘decision’ as being of an admin nature under an empowering
statute taken by an organ of state as defined in Sec 239 of the Constitution
Examples of action excluded from the definition of AA in the PAJA:
Powers + functions of: National Provincial Local Executives
Legislative functions of: Parliament Provincial Legislatures Local Councils
Judicial functions of: Judicial Officers of the Court
, DEFINITION OF AN ORGAN OF STATE AS DEFINED BY THE CONSTITUTION
Sec 239 of the Constitution:
(a) Any dept of state or administration in the National, Provincial or Local sphere of
government
Or
(b) Any other functionary or institution that
○ exercises a power or performs a public function ito the Constitution or a
provincial constitution
or
○ exercises a public power or performs a public function ito any legislation
(c) A court or a judicial officer is excluded
CONCEPT OF DELEGATION
The rule delegatus delegare non potest = if the action entails the exercise of a
discretion, no delegation takes place unless authorized by the relevant legislation
○ ie – if a power is conferred on an administrator because of specific qualifications,
expertise or knowledge, this function may not be delegated to another functionary.
[ delegatus delegare non potest rule = rule against unauthorized delegation ]
Case Ref: Shidiack vs Union Government
Delegation is possible ito Sec 238 of the Constitution if:
it is consistent with the legislation ito which the power is exercised or the
function is performed
Or
the power is exercised for another organ of state on an agency or delegation
basis
A subordinate may be instructed to implement a decision
An administrator may not put itself in the position of having to accept directions or
orders from another body
The administrator may appoint a fact-finding body to assist it, providing the final
discretion is exercised by the proper authority
REQUIREMENTS FOR JUST ADMIN ACTION AS SET OUT IN SEC 33 OF THE CONST
LAWFULNESS
FAIR PROCEDURE
REASONABLENESS
WRITTEN REASONS WHERE RIGHTS HAVE BEEN ADVERSELY AFFECTED
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