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ADL notes
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- University Of South Africa (Unisa)
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Abbreviations:AA = Administrative Action JA = Judge of the Supreme Court of Appeal
OotS = Organ of the State MEC = Member of the Provincial Council
B = Supreme Court of Bophuthatswana P = President of the Supreme Court of Appeal
CC = Constitutional Court PAJA = Promotion of Administrative Justice Act 3 of 2000
BCLR = Butterworths Constitutional Law Reports RA = Appeal Court of Rhodesia (now Zimbabwe)
CJ = Chief Justice SCA = Supreme Court of Appeal
J = Judge
4 Key features of administrative law
• The public power - state authority - that is exercised by an organ of
state / natural or juristic person over another person/body in a
State Autority
subordinate position. The exercise of such STATE authority could
affect the rights/interests of the last-mentioned
• The conduct of state officials (administrators) when exercising a
Administrative Action
public power / performing a public function ito legislation
• The manner in which AA must be performed in exercising state
authority by the OotS / natural or juristic person.
• The Constitution states that all administrators exercising public
power must:
Just Administrative • act lawfully - must comply with requirements of the law
Action
• act reasonably - decision must be objective and sound
• must follow procedures that are fair
• must provide written reasons when rights of a person are
adversely affected
Control of • Means of correcting / rectifying AA that is not just/fair
Administrative Action • What is the remedy?
What is administrative law?
Administrative law forms part of public law
It regulates the activities of OotS and natural/juristic persons that exercise public powers / perform public
functions
Regulating the activities of OotS and natural/juristic persons include prescribing the procedures to be
followed when public powers are exercised or public functions are performed
Ensuring that such action is within boundaries of the law
Regulating also includes control over such action
Exam Study Notes for ADL 2601 Nov 2013 1
,Exercise:
Scenario 1
The Department of Transport buys five cars from the car company, Luxury Cars. The contract of sale is concluded by
Dan, the administrator at the head of the department's procurement section ± the section dealing with the buying of
goods.
Scenario 2
Irene lives in an informal settlement, but her name is on the waiting list for a house. She is informed by the
municipality's director of housing that a low-cost house is available for occupation. A week before she moves into her
new house she is informed by the director that the house has been allocated to someone else.
Scenario 3
The director-general of health has been given medical opinions to the effect that one of the senior officials in the
department has a medical condition which makes her unfit for continued government service. However, the director-
general refuses to allow the official to go on early pension since he is not satisfied that, given the nature of the
official's duties, a discharge on medical grounds is called for.
Scenario Is it Admin Law? Reasons
1 NO Although the Department of Transport, a government department is involved ±
Dan, an administrator in the Department is acting on behalf of the department ±
the Department is not acting from a position of authority when it buys cars from a
car dealer. The contractual parties, the Department and the car dealer act within an
ordinary contractual (equal) relationship. Private law is therefore involved since
none of the parties may force the other into signing the deal (the buying and selling
of the cars) and they therefore contract on equal terms.
2 YES The municipality, via its director of housing, is in a position of authority and is
capable of exercising that authority. Irene is in a subordinate position. Authority
must be exercised in a certain way that is within the boundaries of the law. From
the facts it does not seem as if the director has acted and exercised his power in
such a manner.
3 YES She is under the authority of the director-general, the head of the department. The
director-general exercises authority over the official and she is subject to the power
of the director-general. However, she is not without protection and is protected by
the law against the abuse of superior power.
THE ADMINISTRATIVE-LAW RELATIONSHIP (ALR)
State Authority: the public/authoritative power exercised by a person/body in authority where
such power affects the rights / interests of another person (in a subservient position)
Legal Relationship: when two or more legal subjects enter into a relationship that is governed by
law
Public-law relationship: created when one of the legal subjects exercises state authority / power
over the other legal subject, therefore a vertical relationship
Private-law relationship: relationship between individuals who are on an equal footing, therefore a
horizontal relationship
Exam Study Notes for ADL 2601 Nov 2013 2
, Characteristics of the ALR
1. At least one of the legal subjects must be in a position of power
2. The position of power must be held by a person/body with state authority and who is able to exercise that
authority:
a. Must be able to prescribe, restrain or allow other individuals/juristic persons to act in a certain way
b. Thereby possibly affecting the rights and interests of the person in the subordinate position
2 Kinds of Administrative-law relationships:
•The legal rules governing the relationship applies to all the subjects within a
The general particular group
or objective •Example: regugees must adhere to the Refugees Act 130 of 1998, therefore
the relationship is between regugees and the Dept of Home Affairs
relationship •This relationship is created, changed or ended by legislation
The individual •The legal rules apply personally and specifically between the parties -
specifically identifyable legal subjects
or subjective •Individual relationships are created by individual admin decisions and are
relationship not affected by new or amended legislation, unless specified
THE LEGAL SUBJECTS OF THE ADMINISTRATIVE-LAW RELATIONSHIP
Identifying the authoritative party in the ALR
The Constitution provides a broad definition of the party in authority – termed an ‘organ of the state’:
Section 239 of the Constitution states:
“organ of state” means
MEMORISE THIS
a) any department of state or administration in the national, provincial or local sphere of government; or
b) any other functionary or institution
I. exercising a power or performing a function 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,
but does not include a court or a judicial officer.
National sphere –
“any department of state or administration” refers to departments of state or government departments such as the
Departments of Communications, Education, Tourism, etc. ‘Department’ or ‘administration’ may refer to an entire
department and/or to its administrators (the public servant).
“Organs of state” include the members of cabinet, deputy-ministers, the president as well as the deputy president.
Exam Study Notes for ADL 2601 Nov 2013 3
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