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ADL2601 Assignment 01 2022
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ANSWERS to ADL2601 Assignment 01 2022
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ADL2601Assignment 01
QUESTION 1
An administrative law relationship is an unequal, vertical one - it is a relationship between legal
subjects where one of the legal subjects must be a person or body who exercises power and
must be in the position of power, moreso the position of power must be held by a person or
body clothed with state authority and able to exercise that authority.
Therefore, the authoritative person or body - organ of state or natural or juristic person must
have the power to prescribe, retain or allow other individuals or juristic persons to act in a
certain way. The authoritative person uses this authority to compel the other legal subject to act
in a specific way, such exercise of power may affect the rights and interests of the person in the
relationship leaving such person in a subservient or subordinate position.
Thus, making Mrs Zondo the party clothed with state authority, as she is a government official
and therefore able to exercise state power in terms of section 6 of the PIE act, this leaves the
informal settlers of Orange Wetlands the party subject to Mrs Zondo's authority, they are
subordinate.
QUESTION 2
Administrative action means any decision taken or any failure to take a decision, by;
(a) An organ of state when;
(i) exercising a power in terms of the Constitution or a provincial Constitution; or
(ii) exercising a public or performing a public function in terms of any legislation; or
(b) a natural or juristic person other than and organ of state, when exercising a public power
or performing a public function in terms of an empowering provision which adversely
affects the rights of any person and which has a direct external legal effect, thus there
are powers which do not include administrative action and they are not part of the
scenario.
Administrative Action has to meet certain elements, in order:
a. A decision
The PAJA states administrative action is limited to:
● a decision; or
● a failure to take a decision.
Failing to make a decision can have a major negative effect (it can "adversely affect")
someone's rights.
, ADL2601
Assignment 01
b. Of an administrative nature made in terms of an empowering provision
Not every decision a member of the administration takes is "of an administrative nature".
Decisions that administrators take as part of their job are of an administrative nature.
However, not all of these decisions are administrative actions. To be an administrative action, a
decision must be:
● Of an administrative nature;
● Taken by an administrator;
● In terms of an empowering provision.
An empowering provision is usually a provision of a law that allows an administrator to make a
decision. It is the law, rule of the common law, customary law, or an agreement, instruction or
other documents.
c. That is not specifically excluded by the PAJA
The PAJA excludes some of the actions of particular organs of state from the definition of
administrative action - and these are therefore not governed by the Act. Most of these actions
are governed directly by the Constitution and have their own specific rights, procedures and
remedies. These include:
● Policy decisions of the executive;
● The making of legislation by Parliament, a provincial legislature or a municipal council;
and
● The exercise of judicial functions by the officers of courts and some other bodies.
The PAJA also excludes decisions taken under the Promotion of Access to Information Act 2 of
2000 to either allow or deny access to information. It allows the public to access information
held by the state and to information held by another member of the public if that information is
needed to protect one's rights.
D. Organ of state or natural or juristic person when exercising public power or
performing a public function.
"Organs of state" include departments at national, provincial or local government level. In
Section 239 of the Constitution, organs of state also include "functionaries or institutions
exercising power or performing a function in terms of any legislation", such as universities.
PAJA also allows for institutions not listed under section 239 of the constitution to carry out
administrative action, such as natural or juristic persons.
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