ADL2601 STUDY
SUMMARY NOTES
FOR 2022.
(South African
administrative law)
,South African administrative law
South African administrative law is the branch of public law in that country which regulates the legal
relations of public authorities, whether with private individuals and organisations or with other public
authorities, [1] or better say, in present-day South Africa, which regulates "the activities of bodies
that exercise public powers or perform public functions, irrespective of whether those bodies are public
authorities in a strict sense." [2] According to the Constitutional Court, administrative law is "an incident of
the separation of powers under which the courts regulate and control the exercise of public power by the
other branches of government." [3]
Weichers defines administrative law as a body of legal rules governing the administration, organisation,
powers and functions of administrative authorities. For Baxter, it is a set of common-law principles which
promote the effective use of administrative power, protect against misuse, preserve a balance of fairness
and maintain the public interest. Chaskalson describes it as the interface between the bureaucratic state
and its subjects. [4]
From this it may be seen that commentators agree that administrative law is concerned with attaining
administrative efficiency, and with ensuring that this power is tightly controlled, so that no abuse may
occur. In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the
Republic of South Africa, [5] it was held that administrative law forms the core of public law. It overlaps with
constitutional law because both deal with organs of state and their relationship to individuals.
Administrative law differs from constitutional law, however, in its emphasisis on a particular branch of
government (the public administration) and on a particular activity of the state (administrative action).
In President of the RSA v SARFU, the Constitutional Court held that the administration is that part of
government which is primarily concerned with the implementation of legislation.
In summary, then, administrative law regulates the activities of bodies that exercise public powers or
perform public functions. It empowers administrative officials so that they may implement policies or
programs, and limits the exercise of power by requiring all administrative action meet the minimum
requirements of lawfulness, reasonableness and fairness.
Sources
Administrative officials derive their authority or jurisdiction from a legal instrument or rule, and may only
do what a law authorises them to so. This is known as the principle of legality, which requires that
administrative authorities not only refrain from breaking the law, but that all their content comply with the
Constitution and particularly the Bill of Rights. The sources of administrative law are, in order of
importance,
the Constitution;
legislation; and
, the common law.
Constitution[edit]
The Constitution is the supreme law of the land. Any law or act which is inconsistent with it has no force or
effect. The effect of this provision is that laws and administrative acts must comply with the Constitution.
The Constitution is binding on the executive branch of government in every sphere of administration. The
importance of the Constitution as a source of administrative law was best articulated in Pharmaceutical
Manufacturers, where Chaskalson P held that the control of public power by the courts through judicial
review is a constitutional matter. The common-law principles that had been applied to control powers prior
to 1994 have now been subsumed under the Constitution. As a source of administrative law, the
Constitution establishes a variety of agencies and administrative structures to control the exercise of
public power.
In Bato Star Fishing v Minister of Environmental Affairs, O'Regan J held that there are not two systems of
law regulating administrative action—the common law and the Constitution—but only one system
grounded in the Constitution. The courts' power to review administrative action no longer flows directly
from the common law, but rather from the constitutionally mandated PAJA and from the Constitution itself.
The grundnormof administrative law is now to be found in the first place not in the doctrine of ultra vires,
nor in that of parliamentary sovereignty, nor in the common law itself, but rather in the principles of the
Constitution. The common law informs the provisions of PAJA and the Constitution, and derives its force
from the latter. The extent to which the common law remains relevant to administrative review will have to
be developed on a case-by-case basis as the courts interpret and apply the provisions of PAJA and the
Constitution.
Legislation[edit]
Legislation includes
Acts of Parliament;
provincial legislation;
by-laws; and
regulations, etc.
All these statutes may confer authority to take action and make decisions. For a statute to be valid, it must
conform to constitutional requirements.
Provincial legislation[edit]
Section 125(2)(b) of the Constitution states that the Premier of a province exercises its executive
authority, together with the other members of the Executive Council, by implementing all national
