If you are struggling with how to answer questions for administrative law, my document helps because it is a marked assignment and i scored 100% on it.
a. An administrative law relationship is where one of the legal subjects is an authoritative
person or body who exercises power.
- He or she must have the power to prescribe, restrain or allow other individuals or
jurist person to act in a certain way.
- This position of power should be held by a person or body clothed with state
authority and who is able to exercise that authority. the exercise of such power can
affect the rights and interest of the person in the relationship leaving that person
in a subservient or subordinate position.
- In a general administrative law relationship, the legal rules governing the
relationship between the parties apply to all the subjects within a particular group.
These rules apply impersonally that is generally and objectively and non-specifically
and not to a particular identifiable legal subject.
- Yes, the MTA is a subject of a general administrative –law relationship since the
minister is an organ of the state and the relationship between the minister and the
MTA is of a vertical one, because the MTA is in a subservient position (an individual
administrative law relationship where rules apply personally and specifically
between the parties and the relationship is created by an individual’s decision.)1
b. Section 239 states that an organ of state means any department of state or
administration in the national, provincial or local sphere of government or any other
functionary or institution that exercises a power or performs a function in terms of the
constitution or a provincial constitution.
In terms of section 239 of the constitution the following are organs of state: The
minister.
1
ADL2601/1/2020–2024/Page 22-23
, The minister is an organ of state, since he is officially acting on behalf of the department
of transport. He is exercising a public power in terms of legislation2.
c. Administrative action which materially and adversely affects the right or legitimate
expectations of any person must be procedurally fair according to section 3 (1) of PAJA.
Legitimate expectation means that the rules of fair procedures are extended to those
cases where no vested right exists, but only a legitimate expectation of a benefit that
may be granted or a benefit that will not be withdrawn before a hearing has occurred.
This expectation is based on something more concrete, such as an express promise, or
a regular practice that can reasonably be expected to continue, it does not mean that
the person is guaranteed success, but only that he should receive a hearing.
For administrative practice depends on the circumstance of each case according to
section 3 (2)(a) of PAJA.
The Mandatory/peremptory requirements according to section 3(2)(b).
- Adequate notice of nature and purpose of proposed action
- Reasonable opportunity to make representation
- Clear statement of administrative action
- Adequate notice of right of review or internal appeal.
- Adequate notice of right to request reasons.
The discretionary requirements -section 3(3)
- Opportunity to obtain assistance, even legal assistance in complex cases.
- Opportunity to present and dispute information and arguments.
- Opportunity to appear in person.
Departures from the requirements of fair procedure set out in section 3(2) according
to section 3 (4)
- The objects of the empowering provisions.
- Nature and purpose of and need to take administrative action
- Likely effect of the administrative action
- Urgency of taking the administrative action or the urgency of the matter.
- The need to promote an efficient administrative and good governance.
Fair but different procedure: section 3(5)
Section 3(5) permits an administrator to follow different procedure, subject to certain
requirements, the requirements are that procedure must be fair procedure if the
empowering provisions authorises it.
2
ADL2601/1/2020–2024/page 27-28
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