ADL2601 REVISION
PACK
2022/2023
1
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Administrative Law
Revision Pack
Revision Notes
Exam questions and answers
Study Unit 1 what is administrative law?
Administrative law is the sum total of legal rules that grant people, or bodies in authority, the power to take
action; prescribe t...
Administrative law is the sum total of legal rules that grant people, or bodies in authority, the power to take
action; prescribe the procedures to be followed when taking such action; and ensure that such action is within the
boundaries of the law. It also provides for control over such action.
State authority is the power exercised by an organ of state or natural or juristic person over another person or
body in a subordinate or subservient position. The exercise of such state authority could affect the rights or
interests of the last-mentioned.
Administrative action is the conduct of functionaries and institutions (administrators) when exercising a public
power or performing a public function in terms of any legislation. This conduct takes a variety of forms, but
usually it is in the form of a “decision”' of the administrator.
Study Unit 2 – The Admin Law relationship
Define an administrative-law relationship, including the concepts of general and individual administrative-law
relationships.
An administrative relationship exists between two or more people where at least one of the subjects is a person or
body clothed in state authority who is able to exercise that authority over a person or body in a subordinate
position whose rights are affected by the action. It is an unequal relationship.
In a general administrative-law relationship the legal rules governing the relationship between the parties apply to
all the subjects in a particular group. It is created by, changed and terminated by legislation.
An individual administrative-law relationship the rules apply personally and specifically between the parties. The
relationship is created by individual administrative decisions and not affected by new legislative provisions.
Study Unit 3 – The legalsubjects of the admin law relationship
Definition of an organ of state
Section 239 of the Constitution: ‘organ of state’ means –
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.
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Organ of state in terms of s 239(a) refers to the functionaries and institutions forming part of
the public administration.
1. In the national sphere this refers to:
a. Departments of state or government departments, i.e. Department of Agriculture
b. May refer to an entire department and/or to its functionaries
c. Ministers & Deputy Ministers
d. President & Deputy President
2. In the provincial sphere this refers to:
a. Provincial departments of state
b. Premiers of provinces
c. Members of the Executive Councils (MECs)
3. In the local government sphere this refers to:
a. Municipalities
b. Municipal councils
Organ of State in terms of s 239(b)
Any functionary or institution that is not part of the public administration, but which either exercises power or
performs functions in terms of the Constitution or a provincial constitution, or exercises public power or performs
public functions in terms of legislation.
The role of associations, clubs and other “private” organisations and voluntary organisations are non-statutory
bodies which have traditionally had the common law of administrative laws applied to them because the
relationship between management and members is analogous to that of an administrative law relationship.
Study Unit 4 The sources of administrative law
Binding (authoritative) sources - CCCLAI
1. The Constitution (The Constitution of the Republic of South Africa 108 of 1996) The Constitution is
supreme and no other law may be in conflict with it: thus it is the most important and authoritative
source of law in SA.
2. Legislation - Legislation gives effect to constitutional provisions
a. Original legislation
i. Passed by Parliament in the national sphere of government;
ii. The nine provincial legislatures in the provincial sphere of government;
iii. Elected local governments (municipal councils) in the local sphere of government
b. Subordinate legislation - Passed in terms of the original/enabling/empowering legislation: thus it
must not conflict with the provisions in the enabling statute.
i. Passed by: functionaries in the national sphere of government; Proclamations of the President
issued in terms of the empowering statute Regulations made by ministers in terms of an enabling
statute .
ii. Provincial sphere of government: e.g. regulations issued in terms of sphere of competency of
provincial government e.g. education
iii. Local sphere of government: Regulations in terms of relevant by-laws
3. Case law (judicial precedent) - Past judgments are binding on other courts in subsequent cases (stare
decisis).
4. Common law - Many common-law rules are now included in legislation
5. Administrative practice (custom or usage)
6. International law
Persuasive sources (BPSF)
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1. Writings in books and journals expressing academic opinions
2. Policy documents such as Green and White Papers
3. Reports by “state institutions supporting constitutional democracy” such as reports of the Human Rights
Commission
4. Foreign law (comparative law).
Study Unit 5 Administrative action is;
a) A decision, including a proposed decision, as well as the failure to take a decision
b) of an administrative nature
c) under an empowering provision
d) By an organ of state or natural or juristic person when exercising public power or performing a public
function
e) That adversely affects the rights of any person
f) Or has a direct, external legal effect
g) That is not specifically excluded by the list of nine broad categories of exclusions mentioned in
subparagraphs (aa)to (ii).
Or alternatively it can be described as:
- Any decision of an organ of state of an administrative nature made in terms of the prescriptions of
empowering laws
- Any decision of private persons when they exercise public power or perform public functions in terms of
empowering laws.
Administrative action as described in PAJA
Administrative action means a decision taken or failure to take a decision by
a)An organ of state in exercising a power in terms of the Constitution or a provincial constitution, or in exercising a
public power or performing a public function in terms of any legislation; or
b)A natural or juristic person which is not 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.
The definition in PAJA includes a list of exceptions to this general definition. PAJA also defines “decision” as being
of an administrative nature
Action that does not qualify as administrative action
The following does not qualify as administrative action:
a) The executive powers or functions of the National Executive including; calling a national referendum in
terms of an Act of Parliament; receiving and accrediting foreign diplomatic and consular representatives;
appointing ambassadors; conferring honours; appointing commissions of inquiry
b) The executive powers or functions of the Provincial Executive,
c) The executive powers or functions of a municipal council;
d) The legislative functions of Parliament, a provincial legislature or amunicipal council;
e) The judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a
Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act,
and the judicial functions of a traditional leader under customary law or any other law;
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