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2May/June 2013
Ms REF Ugee is a citizen of a war-ravaged country in West Africa. She fled her country of birth, moving
gradually southwards and entered South Africa after a long journey. Ms REF Ugee applies for asylum
at the Department of Home Affairs in terms of section 21(1) of the Refugees Act 130 of 1998. Pending
the outcome her application for asylum, she was granted an asylum seeker permit in terms of the Act,
which allows her to stay temporarily in South Africa. Later, however, her application for asylum is
rejected by the authorized refugee status determination officer without any input by Ms REF Ugee. No
reasons were given, but it later transpired that the rejection was based on the informal notes of the
refugee reception officer working in the refugee reception officer responsible for issuing her with the
asylum seeker permit. From these notes the impression might be granted that the decision had been
influenced by certain irrelevant factors suggesting bias on the part of the administrator. The Refugees
Act makes provision for review by the Standing Committee and an appeal to the Appeal Board of a
decision by a refugee status determination officer.
You are a legal advisor working at a non-governmental organization (NGO) called Consortium for
Refugees and Migrants in South Africa (CRMSA). Ms Ugee approaches you for assistance on ways and
means on how the NGO might be able to come to her assistance.
Answer the following questions and substantiate your answers.
Question 1
1.1 Briefly explain what an administrative-law relationship is. Do you think Ms REF Ugee is a subject of an
administrative-law relationship? (6)
An administrative-law relationship is a relationship between two or more legal subjects in which one is a
person or body who is clothed with state authority and is able to exercise the authority over the other.
The exercise of power may affect the rights and/or interests of the person(s) in a subordinate position. It
is therefore an unequal relationship. In a general administrative-law relationship the legal rules
governing the relationship between the parties apply to all the subjects in a particular group. It is
created by, changed and terminated by legislation. In an individual administrative-law relationship the
rules apply personally and specifically between the parties. The relationship is created by individual
administrative decisions.
In the set of facts, the individual administrative-law relationship is applicable since an individual
relationship exists between Ms Ugee and the Department of Home Affairs.
1.2 Identify the administrative action in the 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. (13)
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
(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 reject Ms REF Ugee’s application for asylum amounts to administrative action
because it complies with the definition in that it involves a decision by an organ of state (the
Department of Home Affairs, authorized refugee status determination officer in the Department of
Home Affairs) exercising a public power or performing a public function in terms of any legislation which
has adversely affected the rights of a person (Ms REF Ugee’s) and which appears to have had a direct
external legal effect.
1.3 Identify the organs of state in the given set of facts. Explain your answers with reference to the
constitutional definition of organ of state. (6)
In terms of section 239 of the Constitution, the following are organs of state:
The Department of Home Affairs (any department of state or administration in the national, provincial
or local sphere of government)
The authorized refugee status determination official who made the decision, the refugee reception
officer, the Standing Committee and the Appeal Board in the Department of Home Affairs (any other
functionary or institution (ii) exercising a public power or performing a public function in terms of any
legislation)
Question 2
2.1.1 D
2.1.2 B
2.1.3 C
2.1.4 B
2.1.5 C
2.2 The set of rules clearly states that Ms Ugee’s application for asylum was rejected by an authorized
refugee status determination officer. Discuss the rules that apply when delegation of powers is
permitted (in other words a particular task is performed by a duly authorized administrator).
(5)
To “delegate” means to entrust a task, responsibility or power to somebody else – that is, to an agent of
the original holder of the power. The purpose behind the delegation of powers is to facilitate the quick
and efficient division of labour within the administration, since administrators and administrative bodies
very often cannot cope with the exercise of all their administrative functions.
, The following rules apply when delegation of powers is permitted:
- If the administrator is authorised to perform a particular action and this entails the exercise of
discretion, the task concerned may not be delegated unless it is authorised by statute
- An administrator who exercises a discretionary power and makes a decision is not prevented from
instructing a subordinate administrator merely to implement the decision
- An administrator must apply his/her mind to the matter when exercising discretion
- An administrator may appoint a fact-finding committee to assist, provided the actual discretion is
ultimately exercised by the administrator
2.3 One of the rules of natural justice requires that the administrator should be impartial. Discuss the rule
against bias with reference to the above set of facts. (7)
• Common-law rules of natural justice:
Audi alteram partem (to hear the other side before a decision is taken)
Nemo iudex in sua causa rule (no one should be judge in his own case – rule against bias/prejudice)
• The last rule is important in this context. In terms of this rule, the decision-maker must be, and must
reasonably be perceived to be, impartial or unbiased. Rule against bias.
• The most common examples of bias are:
the presence of pecuniary/financial interest
the presence of personal interest – more evident in this set of facts
• In Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W), the chairman of the
board responsible for the granting or refusal of transport licences was at the same time director of the
three large taxi companies, and therefore biased. The court found that the reasonable person would
realise that the chairman was indeed biased because of his financial interest in the taxi company.
• The test to determine bias was formulated by the Appellate Division in BTR Industries SA v Metal and
Allied Workers Union 1992 3 SA 673 (A) as “the existence of a reasonable suspicion of bias satisfies the
test and that an apprehension of the real likelihood that the decision maker will be biased is not a
prerequisite for disqualifying bias".
• In SACCAWU v Irvin & Johnson 1999 7 BCLR 725 (CC) the CC confirmed the correctness of the test in
the BTR case. However, the CC decided to use the phrase “a reasonable apprehension of bias” rather
than “a reasonable suspicion of bias”.
• The affected individual merely has to prove an appearance of bias rather than the existence of actual
bias.
• In the given set of facts, one could argue that there was undoubtedly a reasonable apprehension of
bias since the decision by the authorized refugee status determination officer was based on informal
notes submitted by the refugee reception officer of the Department of Home Affairs.
2.4 PAJA gives effect to the right to reasonable administrative action by providing an individual the
capacity under section 6(1) to institute judicial review proceedings on the ground that
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