ADMINISTRATIVE LAW 411
STUDY UNIT 1
INTRODUCTION AND BACKGROUND TO ADMINISTRATIVE LAW
Where does administrative law fit in?
- Administrative law forms a part of constitutional law
o It is that part of constitutional law that govern the public function of state
administration, which is the daily running of the state
o NB: The focus is on the FUNCTION of public administration and not the
institution of public administration
§ Who is acting is less important that what is actually being done.
§ As long as the function being fulfilled is that of public administration,
administrative law will be applicable
o President of the Republic of South Africa and Others v South African Rugby
Football Union and Others 2000 (1) SA 1 (CC):
§ “[141] … the test for determining whether conduct constitutes
‘administrative action’ is not the question whether the action
concerned is performed by a member of the executive arm of
government. What matters is not so much the functionary as the
function. The question is whether the task itself is administrative or
not … The focus of the enquiry as to whether conduct is
‘administrative action’ is not on the arm of government to which the
relevant actor belongs, but on the nature of the power he or she is
exercising.”
- Administrative law in South Africa is anchored in the Constitution and in particular
section 33 of the Bill of Rights:
o Section 33 guarantees to everyone the right to administrative justice.
- The constitutional right is fleshed out in the Promotion of Administrative Justice Act
3 of 2000 (PAJA) which serves as the most common source of administrative law in
South Africa
SOURCES OF ADMNISTRATIVE JUSTICE
Sources of administrative LAW
- The sources of administrative law
o Those legal sources where we find the rules governing administrative action,
that is, the rules that will prescribe how administrative action should be
taken
- Historical development of the sources of administrative law
o Before 1994 = English Common law (Still relevant today)
o After 1994 = Interim Constitution (Section 23) and then the Final Constitution
(Section 33)
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, § Section 33 of the Constitution of the Republic of South Africa, 1996
• (1) Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair
• (2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons
• (3) National legislation must be enacted to give effect to
these rights, and must –
o (a) Provide for the review of administrative action
by a court or, where appropriate, an independent and
impartial tribunal;
o (b) Impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
o (c) Promote an efficient administration
§ After 2000 = PAJA was enacted in line with section 33(3) of the
Constitution.
- Relationship between the sources of administrative law
o Constitution and the Common law
§ Commissioner of Customs and Excise v Container Logistics
• The court held that the common law and the Constitution are
two different sources that are distinct from one another.
• This had the result that two different courts were considered
as the highest court depending on the source you relied on
o Common law = Supreme Court of Appeal
o Constitution = Constitutional Court
§ Pharmaceutical Manufacturers of SA; In re: Ex Parte application of the
President of RSA (CC)
• Rejected the premise of the case above
• The court held that there is only one source, the Constitution,
and that the common law only exists to the extent that it
amplifies the Constitution.
• Common law = Subsidiary
• Constitution = Primary
o PAJA and the Constitution
§ Bato Star Fishing v Minister of Environmental Affairs
• If we want to test administrative action for compliance with
administrative law, we need to turn to PAJA first because it is
meant to give effect to section 33 of the Constitution.
§ Zondi v MEC for Traditional and Local Government Affairs
• Held that the decision in Bato Star does not mean that the
Constitution disappears from the administrative law
landscape.
• Section 33 remains in the background and sometimes we will
have to rely on it despite for PAJA.
o i.e. When we test the constitutionality of other
legislation because you cannot test legislation against
legislation.
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,Sources of administrative POWER
- The sources of administrative power
o Those legal sources that empower a particular administrator to take
administrative action. It thus refers to the source of the power being
exercised when an administrative action is taken.
o Essentially the empowering provisions in administrative law
- Example of a source of administrative power
o Higher Education Act of 1997, section 42 (Ministerial directive):
§ The Higher Education Act empowers the Minister to issue directives
to higher institutions. Premised on this provision is the Minister’s
power to issue instructions to universities.
ADMINISTRATIVE ACTION
The concept of an administrative action
- Section 33(1) and (2) of the Constitution:
o 33(1) = Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair
o 33(2) = Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons
- When does this section apply?
o The answer is in the text: “Everyone has the right to administrative action
that…” “Everyone whose rights have been adversely affected by
administrative action…”
o NB: Only applies when administrative action is present
- Administrative action in general:
o “Administrative action” is essentially given meaning in relation to the
functions under the separation of powers.
o In theory, administrative action can therefore be classified as executive,
legislative or judicial.
§ Executive
• Power derived from the Constitution and is exercised at a
national, provincial and local level.
• Primarily concerned with the formulation of policy and the
implementation of legislation.
• Not automatically administrative actions.
• Divided into the policy branch and the public administration
§ Legislative
• Power derived from the Constitution and is exercised at a
national, provincial and local level.
• Concerned with the creation of legislation.
• Legislative actions as such do not qualify as administrative
action.
§ Judiciary
• Power derived from the Constitution but is a unitary system
unlike the other two which are federal.
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, Definition of administrative action
- Constitutional approach:
o Section 239 of the Constitution definition of an organ of state = Not restricted
to certain entities in the state but extends to any institution or body
exercising a public function in terms of legislation.
o This is the functional approach in the sense that it is not the institution acting
that matters but rather the function it is fulfilling.
§ SARFU; Ed-U-College; Greys Marine and Logbro Properties
• SARFU: Focus is not on the arm of government but on the
nature of the power exercised = functional
- Section 1 of PAJA:
Normal definition
“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 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, but does not include – (9 actions which is not included)
The extended definition
“Administrative action” means any “decision” (of an administrative nature made, proposed
to be made, or required to be made, as the case may be, under) an “empowering provision”
(a law, a rule of common law, customary law, or an agreement, instrument or other
document in terms of which an administrative action was purportedly taken), (including a
decision relating to -
(a) Making, suspending, revoking or refusing to make an order, award or determination;
(b) Giving, suspending, revoking or refusing to give a certificate, direction, approval
consent or permission;
(c) Issuing, suspending, revoking or refusing to issue a license, authority or other
instrument;
(d) Imposing a condition or restriction;
(e) Making a declaration, demand or requirement;
(f) Retaining, or refusing to deliver up, an article; or
(g) Doing or refusing to do any other act or thing of an administrative nature, and a
reference to a failure to take a decision must be construed accordingly;)
, or any failure to take a decision by –
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