THE OCTOBER/NOVEMBER 2013 EXAMINATION PAPER
Question 1
Mr. Nkosi is the proud owner of a wind farm (commonly known as Blue Hills),
which is situated in Constantia. On 1 October 2013, Mr. Nkosi received a notice of
expropriation in terms of section 7 of the Expropriation Act 63 of 1975 from the
...
Mr Nkosi is the proud owner of a wine farm (commonly known as Blue Hills),
which is situated in Constantia. On 1 October 2013 Mr Nkosi received a notice of
expropriation in terms of section 7 of the Expropriation Act 63 of 1975 from the
Minister of Public Works stating the following:
- The whole of erven 711 (commonly referred to as Blue Hills) will be
expropriated
- The proposed date of expropriation is 1 December 2013
- The offered amount of compensation is R500 000
Mr Nkosi is aware of the fact that the Minister of Public Works does have the
power to expropriate his property – this is clear in terms of section 2 of the
Expropriation of 63 of 1975 – which states that the Minister may expropriate
property for public purposes. However, Mr Nkosi is unaware of the reasons for
the proposed expropriation. He was also not informed why the whole of his
property should be expropriated. In addition, the market value of Blue Hills was
estimated in October 2013 to be R20 million.
Answer the following questions and substantiate your answers.
QUESTION 1
1.1 Define “organ of state” with reference to the Constitution. Is there an organ
of state in the set of facts? Give a reason for your answer. (8)
pg. 1
,Organ of state is defined in section 239 of the Constitution and includes (a) any
department of state or administration in the national, provincial or local sphere of
government; or any other functionary or institution that (i) exercises a power or
performs a function in terms of the Constitution or a provincial constitution; or (ii)
exercises a public power or performs a public function in terms of any legislation.
However, a court or a judicial officer is not included.
Yes, the Minister is an organ of state, since he is an official acting on behalf of the
Department of Public Works. He is exercising a public power in terms of legislation
1.2 Is there a general administrative-law relationship present in the set of facts?
Give a brief reason for your answer. (3)
No, there is an individual administrative-law relationship, because the Minister’s
decision only applies to Mr Nkosi and the relationship was created by an individual
administrative decision. In an individual administrative-law relationship legal rules apply
personally and specifically between the parties. In other words, the legal rules apply to
specifically identifiable legal subjects. The content of the individual relationship will vary
from case to case. Individual relationships are created by individual administrative
decisions. Furthermore, individual relationships are not affected by new general
legislative provisions, unless the amending Act specifically states that it affects the
relationship.
1.3 List two binding sources of administrative law. (2)
Any two of the following:
- The Constitution
- Legislation (PAJA)
- Case law
- Common law
- Administrative practice/custom or usage
1.4 Is administrative action in evidence in the set of facts? In your answer, you
should give a full definition of the concept “administrative action” with reference
to the provisions of the Promotion of Administrative Justice Act (PAJA) 3 of
2000. (12)
Section 1 of PAJA defines "administrative action” as 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 power or performing a public function in terms of any legislation;
or
pg. 2
,(b) 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, which
adversely affects the rights of any person and which has a direct, external legal effect.
There are exceptions to the definition. These exceptions are, however, not applicable
to the given set of facts. The decision to expropriate Mr Nkosi’s property amounts to
administrative action because it complies with the definition in that it involves a
decision by an organ of state (the Minister, the appointed person in the Department of
Public Works) exercising a public power or performing a public function in terms of any
legislation which has adversely affected the rights of a person (Mr Nkosi) and which
appears to have had a direct external legal effect.
QUESTION 2
2.1 Answer the following questions. Each question is provided with a number of
options as possible answers. Only one option/statement in each question is
correct. You must, therefore, identify the correct option and write down the
number of the option that you have identified next to the question number.
(The correct answers are marked in bold.)
2.1.1 The Minister’s decision in the set of facts is an example of a…
(a) true administrative act.
(b) judicial administrative act.
(c) legislative administrative act.
(d) just administrative act.
2.1.2 Just administrative action is defined in section 33 of the Constitution. The
term “…” can also be used to refer to just administrative action.
(a) proportionality.
(b) applying one’s mind to the matter.
(c) reasonableness.
(d) fairness.
2.1.3 Consider the following statement: “Any administrator must act within the
powers conferred on him or her by the empowering statute.” Which requirement
in section 33 of the Constitution resonates this statement?
(a) Procedural fairness
(b) Reasonableness
(c) Lawfulness
(d) Impartiality
2.1.4 The general rule regarding the delegation of powers is that the
administrator who has authority to take administrative action must exercise that
authority himself or herself. This principle was confirmed in the case of … where
Innes ACJ stated the following:
pg. 3
, “Where the legislature places upon any official the responsibility of exercising a
discretion which the nature of the subject-matter and the language of the section
show can only be properly exercised in a judicial spirit, then that responsibility
cannot be vicariously discharged.”
(a) University of Pretoria v Minister of Education 1948 4 SA 79 (T)
(b) SA Freight Consolidators (Pty) Ltd v Chairman, National Transport Commission
1987 4 SA 155 (W)
(c) Foster v Chairman, Commission for Administration 1991 4 SA 403 (C)
(d) Shidiack v Union Government 1912 AD 642
pg. 4
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