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ADL2601 JULY 2021 EXAM MEMO DESIGNED TO CATER FOR OCT/NOV 2021 ONLINE EXAMS
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- University Of South Africa (Unisa)
ADL2601 JULY 2021 EXAM MEMO DESIGNED TO CATER FOR OCT/NOV 2021 ONLINE EXAMS
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QUESTION 11. Has Mrs Sengwayo been subjected to an administrative law relationship:
An administrative-law relationship exists between two parties in an unequal
relationship/vertical.The characteristics are that one of the subjects is a person or body
clothed in state authority, that is, an organ of state who is able to exercise that authority
over a person or body in a subordinate position whose rights are affected by the action.
Mrs Sengwayo is thus a subject of an administrative-law relationship as her rights are
affected by the exercise of state authority by the Minister of Correctional service. Mrs
Sengwayo is also in a subordinate position.
She is obliged to an individual administrative-law relationship where rules apply
personally and specifically between the parties (her and the Minister of Correctional
service) and the relationship is created by individual administrative decisions.
2. Does the action taken in the scenario constitute administrative action:
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 facts.
The decision to reject her application for parole amounts to administrative action
because it complies with the definition in that it involves a decision by an organ of state
(the Minister of Correctional Services) which has adversely affected the rights of a
person (Mrs Sengwayo) and which appears to have had a direct external legal effect.
3. Whether bias is present in the above set of facts?
Nemo iudex in sua causa is one of the rules of natural justice and it is the rule against
bias or prejudice. It means that no one can be the judge in their own cause. One cannot
act if there is personal or financial interest.
The most common examples of bias are the following:
a. the presence of pecuniary/financial interest; and
, b. the presence of personal interest.
In Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W) the
chairman of the board dealing with transportation permits was a director of three taxi
companies. His financial interest in these clearly constituted bias in adjudicating on the
permits.
In Liebenberg v Brakpan Liquor Licensing Board 1944 WLD 52 the mayor of the town
insisted on being present when the board was considering a liquor licence application of
his brother. Although the board insisted this did not influence the decision, the court
held that the suspicion of bias was enough to set aside the decision because of the
mayor’s personal interest.
BTR Industries SA v Metal and Allied Workers Union 1992 3 SA 673 (A) also held that a
reasonable suspicion of bias satisfies the test. The Constitutional Court confirmed this
test in the SACCAWU v Irvin & Johnson case. The Constitutional Court preferred to use
the phrase “a reasonable apprehension of bias”. In other words, the affected person
merely has to prove an appearance of bias rather than the existence of actual bias.
There is no potential bias in the set of facts because the Minister of correctional Service
did not have any personal or financial interest in the matter.
4. Functus officio principle:
The legal force of administrative action is ended by repeal/revocation, amendment,
lapse of time, withdrawal of one of the subjects to the relationship, or by court order.
When the administrator/organ of state cannot amend, repeal/revoke or vary its decision,
it is said to be functus officio (roughly translated it means “having completed the
task/duty; no longer functioning”). In other words, the matter has been finally dealt with
and the administrator/organ of state is no longer able to change his or her or its mind
and revoke, withdraw or revisit the decision. In short, the organ of state has “discharged
his or her or its official function” and he or she or it cannot re-examine or change the
decision afterwards.
If the official decides that the decision, though valid, may be harsh or if policy changes,
the decision may be changed at any stage; the reason for this rule is that the
administration must be given an opportunity of correcting its own mistakes.
In the given scenario; if the Minister of Correctional Service decides that its decision
was harsh, it can change the decision.
5. Concept of Ubuntu
In S v Makwanyane Ubuntu metaphorically expresses itself in umuntu ngumuntu
ngabantu describing the significance of group solidarity on survival issues so central to
the survival of communities. While it envelops the key values of group solidarity,
compassion, respect, human dignity, conformity to basic norms and collective unity, in
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