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AdministrativeLaw
(NOTE:
Questions
are
in
BOLD)
Mr.
Con
Swindle
is
a
student
at
the
Peoples’
University.
At
the
start
of
the
year-‐
end
examination
in
Administrative
Law
the
invigilator
draws
the
students’
attention
to
the
dire
consequences
of
cheating
in
the
examination.
During
the
examination
the
invigilator
catches
Mr.
Con
Swindle
copying
answer
from
notes
smuggled
into
the
venue.
The
invigilator
reports
the
student
to
the
relevant
lecturer
who
summarily
expels
Mr.
Con
Swindle
from
the
university.
She
informs
him
that
she
has
no
interest
in
students
who
waste
her
time.
The
Higher
Education
Act
makes
provisions
for
the
steps
that
should
be
taken
in
such
a
case,
inter
alia
the
Principle
is
authorized
to
expel
the
student
after
a
disciplinary
hearing.
The
Principle,
in
terms
of
the
legislation,
delegates
the
disciplinary
proceedings
to
be
conducted
by
a
designated
committee
consisting
of
the
Dean
of
Students
Affairs,
the
legal
advisor
and
the
Registrar.
A
student
can
only
be
expelled
if
the
committee
has
conducted
a
disciplinary
hearing
and
recommended
expulsion
to
the
Principle.
Answer
the
following
questions.
Give
reasons
for
all
your
answers
-‐
a
bare
“yes”
or
“no”
or
reference
to
case
or
provision
is
NOT
enough.
Question
1
1a)
Define
an
administrative-‐law
relationship,
including
the
concepts
of
general
and
individual
administrative-‐law
relationships.
Explain
whether
Mr.
Con
Swindle
is
subject
of
general
or
individual-‐administrative
relationship
in
his
dealings
with
the
university
authorities.
-‐ An
administrative-‐law
relationship
is
where
one
of
the
legal
subjects
is
an
authoritative
person
or
body
who
exercises
power.
-‐
He
must
have
the
power
to
prescribe,
restrain
or
allow
other
individuals
or
jurists
person
to
act
in
a
certain
way.
-‐ The
position
of
power
must
be
held
by
a
person
or
body
clothed
with
state
authority,
and
who
is
able
to
exercise
that
authority
, -‐ The
exercise
of
such
power
may
affect
the
rights
and
interests
of
the
person
in
the
relationship
leaving
such
person
in
a
subservient
or
subordinate
position.
-‐ In
general
administrative-‐law
relationship
the
legal
rules
governing
the
relationship
between
the
purities
apply
to
all
the
subjects
within
a
particular
group.
-‐ These
rules
thus
apply
impersonally,
that
is
generally
and
objectively
and
non-‐specifically
and
not
to
a
particular
identifiable
legal
subject
-‐ In
an
individual
administrative-‐law
relationship
legal
rules
apply
personally
and
specifically
between
parties.
-‐ The
legal
rules
apply
to
specifically
identifiable
legal
subjects.
-‐ Individual
relationships
we
created
by
individual
administrative
decisions
-‐ Mr.
Con
Swindle
according
to
the
scenario
is
subject
to
both
general
and
individual
administrative-‐law
relationships:
• The
lecturer
summarily
expelling
Mr.
Con
Swindle
from
the
university
is
an
individual
administrative-‐law
relationship
• The
procedural
steps
set
up
by
The
Higher
Education
Act
is
general
or
objective
relationship
1b)
Define
administrative
action
in
terms
of
section
1
of
the
Promotion
of
Administrative
Justice
Act
3
of
2000
(PAJA).
***
Administrative
Action
means
any
decision
taken
or
any
failure
to
take
a
decision
by:
-‐ An
organ
of
State
when:
• Exercising
a
power
in
terms
of
the
Constitution
of
a
provincial
Constitution
or
• Exercising
a
public
power
or
performing
a
public
function
in
terms
of
any
legislation
or
-‐ A
natural
or
juristic
person,
other
than
an
organ
of
state,
when
exercising
a
public
power
or
performing
a
public
function
in
terms
of
an
empowering
provision,
-‐ When
adversity
affects
the
rights
of
any
person
and
which
has
a
direct,
external
legal
effect
but
does
not
include
-‐ The
executive
person
or
functions
of
the
Natural
Executive
-‐ The
executive
powers
of
functions
of
the
Provincial
executive
, -‐ The
executive
powers
or
functions
of
the
municipal
council
-‐ The
legislative
function
of
Parliament,
a
Provincial
legislature
or
a
municipal
council
-‐ The
decision
to
instate
or
continue
a
prosecution
-‐ Any
decision
taken
or
failure
to
take
a
decision
in
terms
of
Section
4
(1)
[of
PAJA]
-‐ Any
decision
taken
or
failure
to
take
a
decision
in
terms
of
any
provision
if
the
promotion
of
Access
to
Information
Act
2000
1c)
Indicate
in
each
case
whether
the
following
is
administrative
action.
Substantiate
your
answer.
i) The
decision
of
Mr.
Swindle
to
appeal
to
the
Principle
against
the
summary
expulsion.
(2)
-‐ No,
appealing
is
one
of
the
remedies
available
to
him
and
Mr.
Swindle
is
not
an
organ
of
state
since
administrative
action
can
only
be
exercised
by
an
organ
of
state
ii) The
local
prosecutor’s
decision
to
change
and
prosecute
Mr.
Swindle.
(1)
-‐ This
does
not
amount
to
administrative
action
-‐
the
decision
to
institute
or
continue
a
prosecution
according
to
PAJA
does
not
contribute
to
administrative
action.
iii) The
Principal’s
decision
to
institute
disciplinary
proceedings.
(2)
-‐ This
amounts
to
administrative
action
since
the
Principal
is
acting
in
accordance
to
the
Higher
Education
Act,
-‐ The
principal
is
exercising
a
public
power
in
accordance
to
legislation
(Higher
Education
Act)
Question
2
2a)
What
is
an
organ
of
state
as
defined
by
the
Constitution
Of
Republic
of
South
Africa
1996?
Is
the
university
(including
its
employees)
an
organ
state?
Why?
(10)
-‐ organ
of
state
means
any
department
of
state
or
administration
in
the
national,
provincial
or
-‐ local
sphere
of
government;
or
-‐ any
other
functionary
or
institution
, -‐ exercising
a
power
or
performing
a
function
in
terms
of
the
Constitution
or
a
provincial
constitution;
or
-‐
exercising
a
public
power
or
performing
a
public
function
in
terms
of
any
legislation,
-‐ But
does
not
include
a
court
or
a
judicial
officer.
-‐ The
University
is
an
organ
of
state
because
organ
of
state
includes
any
functionary
or
-‐ institution
that
is
not
part
of
the
public
administration,
but
which
either
exercises
-‐ power
or
performs
functions
in
terms
of
the
Constitution
or
a
provincial
constitution
-‐
Or
exercises
public
power
or
performs
public
functions
in
terms
of
any
legislation.
-‐ The
employees
of
the
university
are
not
organs
of
state
because
while
a
private
person
or
entity
can
be
an
``administrator''
...
what
is
important
is
the
public
nature
of
the
power
exercised,
-‐ Rather
than
the
person
or
entity
exercising
it.
2b)
Discuss
the
concept
of
delegare
delegatus
non
potest
(the
rule
against
delegation).
Mention
the
various
kinds
of
delegation
and
indicate
whether
the
rule
is
correctly
applied
in
the
set
of
facts.
(10)
-‐ This
rule
expresses
the
idea
that
the
administrator
who
has
authority
to
take
administrative
action
must
exercise
that
authority
himself
or
herself.
-‐ The
general
rule
is
that
where
a
discretionary
power
has
been
granted
to
a
particular
functionary
because
of
his
or
her
specific
qualifications,
knowledge
or
expertise,
the
exercise
of
this
discretion
cannot
be
delegated
to
another
functionary
or
institution.
-‐ The
original
administrator
must
perform
the
function
personally.
-‐ The
key
judgment
dealing
with
delegation
is
the
case
of
Shidiack
v
Union
-‐ Government
1912
AD
642.
-‐ However
an
executive
organ
of
state
in
any
sphere
of
government
may
delegate
any
power
or
function
that
is
to
be
exercised
or
performed
in
terms
of
legislation,
to
any
other
executive
organ
of
state,
-‐ provided
the
delegation
is
consistent
with
the
legislation
in
terms
of
which
the
power
is
exercised
or
the
function
is
performed;
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