ADL2601
SUMMARY
NOTES. ADL2601 - Administrative Law. DESCRIBING ADMIN LAW
4 Key issues / pillars in Admin Law
Authority = * Governs relationships between legal subjects
* Relationships are not on equal footing (inequality – vertical
relationship) * Always a superior / senior official invol...
Authority = * Governs relationships between legal subjects
* Relationships are not on equal footing (inequality – vertical
relationship) * Always a superior / senior official involved
Admin action= * Facilitates & regulates human behaviour / interaction
* Conduct of anyone exercising public / authoritative power
Just Admin action * The right of every person
* All admin action by persons exercising public power must
be
“LAWFUL, REASONABLE & PROCEDURALY FAIR”
Control of admin action = The way / manner in which authority / power has been
exercised
3 Requirements for any admin action:-
1. Be lawful – must comply with all req of law (as found in sources of law)
2. Be reasonable – Must have a reasonable effect / result
- Discretion exercised & decision taken by person in
authority must be correct (based on objective facts &
circumstances)
3. Be procedurally fair – Correct procedure must be used to take decision
- Subordinate party must be given chance to
defend position before decision is taken
When decision results in someone’s rights being adversely affected – written reasons for
decision should be given
* Law provides protection against any possible harm which results from exercise of
powers (against abuse of power)
* To correct an action – to rather use method of internal / admin control (senior
officials review action) then going to court
Admin Law is the sum total of legal rules that grant people / bodies in authority power to: * take
action
* Prescribe procedures to be followed where taking such action
* Ensure such action is within the boundaries of the law
Also provides for control over such action
(Activity on page 7)
UNIT 2 – SOURCES OF ADMIN LAW
Sources of Admin Law:-
1. Binding (Authoritative) sources:
1. The Constitution - Most important statutory - & most authoritative source
- Sets standard for which admin conduct & actions of
every admin functionary / institution in SA
- Guarantees justice for all by demanding all req for
admin action must be met. (Guarantees Just Admin
Action)
(Activity page 12)
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2
2. Legislation
* Original = Passes b Parl in Nat sphere
= 2 examples of Acts of Parl that compliment prov of Const
& crucial to Admin Law:- # Promotion of Justice Act 3 of 2000
(PAJA)
# Promotion of Access to Info CT 2 OF
2000
= Passes by 9 provincial legislatures in Prov Sphere
= Also passed by elected local govs (Munic councils) in Local
spheres * Subordinate = Passes ito original legis (but must not conflict
with prov of
enabling Act / statute)
= In Nat sphere of gov – this legis passed
by institutions empowered to make these rules
= Examples:- # Proclamations of
President (issued ito empowering
statute to declare date of
commencement of particular
statute
# Regulations made by ministers ito
enabling Statute
= Found in Prov & Local
sphere too (Activity page
15)
3. Case Law (judicial - Task of courts to determine meaning of particular
precedent) legal rule
& apply rule to concrete situations
- Guidelines prescribed by Const
- Judgments of previous cases binding on other
courts (Activity page 16)
4. Common law - Unwritten law of SA
- Common law not important part of Admin law (But English &
Roman-Dutch law played role in development of Admin law)
- 2 Examples of English law:- # principle of ultra vires
# Development of rules of
natural justice
5. Admin practice (custom of usage)
6. International Law
2. Persuasive
1. Writing in books & journals explaining academic opinions –
- Courts often refer to academic opinions expressed in law journals &
books
2.
Policy docs (Such as Green & White papers) –
- Current gov policies on various topics expressed in so-called
White - & Green Papers
- Green Papers = Consultative doc
= People invited to comment on various matters to be
regulated by gov in through papers
- White Papers = Is blueprint of gov policy on various matters
3. Reports by “state institutions supporting Const Democracy. Ie. Reports of
Human Rights Comm – Institutions (as Public Prosecutor & Attorney-General) report on
admin conduct
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3
4. Foreign Law (Comparative law) - Sec 39(1)(c) states court may consult F law
Where to find Admin Law sources
Read in book – page 20
Activity & scenario page 21
Activity page 23
UNIT 3 – ADMIN LAW RELATIONSHIP
Activity page 24 & 25
1. Characteristics of Admin Law relationship
1. At least 1 legal subject must be person / body who exercises power
2. Position of power must be held by person clothed with government
authority & who is able to exercise power
* Admin law relationships can exist between:-
Person who exercises authority & private individual in subordinate position
Person who exercises authority & lower-ranking official in same
department (inter se) (Activity page 27)
2. Distinction between general & individual admin law relationship
2.1 General (objective) relationship:-
* Legal rules governing relationship between parties apply to all subjects within group
* These rules apply impersonally & non-specifically (NOT to particular legal sunject)
* Created, changed / ended by legis only.
2.2 Individual (subjective) relationship
* Rules apply personally & specifically between parties
* Contents will vary from case to case
* Created by individual admin decisions
* Not affected by new general legis provisions, unless Amending Act specifically that it
affects relationship (Activity on page 28 & 29)
UNIT 4 – LEGAL SUBJECTS OF ADMIN LAW RELATIONSHIPS
Activity page 30
Activity page 31
1. Identification of the authoritative party to / in admin law relationship
* Const describes auth party as “organ of state”
Sec 239 declares:- NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB!
NB! NB! NB! “organ of state” means –
(a) Any department of state / admin in Nat , Prov / Local sphere of gov; or
(b) Any other functionary / institution
(i) exercising power / performing function ito Const / Prov
Const
(ii) exercising public power / performing public function
ito any legis But doesn’t include a court / judicial officer
Activity page 33
Downloaded by Rufaro Chikovore (chikosrufa@gmail.com)
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