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1ADMINISTRATIVE LAW Judicial review is concerned with decide what counted as lawful.
CHAPTER 1 judicial detection & correction of Parliament often ousted the court’s
maladministration. Admin law is jurisdiction & prevented them from
CC in Pharma describe AL as an concerned w non-judicial & judicial exercising their powers of review in
incident of the separation of powers safeguards against poor decision- relation to certain statutory
under which the courts regulate and making. Not merely about tracking provisions.
control the exercise of public power down maladministration but w
by the other branches of government. empowerment of administrators, the Constitutional provisions of
facilitation of administration & significance:
Calibre: Nugent JA acknowledged that methods of encouraging good S34 right to have disputes settled
there is no single test of universal decision-making (positive). by a court
application to determine if a power is S32 right of access to info held by
public in nature. Admin law is concerned w: government
- daily business of government S38 allows wide-standing to
Public administration – generally - implementing/administering of enforce constitutional rights & allows
understood to mean the organs and enacted policy courts to grant appropriate relief
functionaries of the executive branch - exercise of delegated powers to S33 right to just administrative
of the state that are concerned with take action (this includes the action. This section is not a mere
the day-to-day business of making of subordinate codification of the common-law
implementing law & administering legislation & policy) principles of review. CC has
policy. *all within the framework allowed emphasised that it is nothing less
by the original legislation* than an entrenchment of rights to
SARFU: admin action is not something administrative justice (SARFU). The
performed only by members of public Constitution has a fundamental review power of courts is no longer
administration; function not the bearing on the nature of the AL grounded in the common law and
functionary which is important. system. subservient to the authority or whim
of the legislature; Constitution is
Admin law has intimate relationship w The impact of the constitution on supreme.
interpretation of legislation – when admin law S1 inform the interpretation of the
deciding cases in admin law, courts Pre-democratic era: judicial review Constitution & set positive standards
are required to consider nature & was the only significant control on the w which all law must comply in order
extent of administrator’s powers. use of admin power. Doctrine of to be valid.
parliamentary sovereignty was a S195 sets out basic values
NB to understand that admin law is a fundamental constraint on powers of governing conduct of public
broader concept than judicial review. the courts. Parliament was free to administration in every sphere of gov.
,2
Delegated legislation: legislation
CC in First Certification stated that the New Clicks – Chaskalson CJ said that made under the authority of original
doctrine of separation of powers the making of delegated legislation by legislation; may itself confer power on
recognises the functional members of the exec is an essential administration.
independence of the three branches part of public administration.
of government while the checks & Hugo: case deals with President’s
balances associated w it prevents Legislatures are too busy to foresee decision to grant remission for
branches from usurping each other’s’ all practical difficulties associated with mothers in prison. Court found that
power. Also goes on to say that SOP the implementation of a legislative the power to pardon offenders had
doctrine can never be complete in any scheme. Thus, original legislation previously been a non-statutory (ie
system and it is not a fixed doctrine. tends to be broad principles & prerogative) power; now, there are no
Intrusions of one branch on the terrain overarching policy which empowers powers conferred on the president
of another are unavoidable. the administration (often high-ranking other than those in the constitution.
execs) to make the detailed rules Also, whether the president is acting
Activities performed by admin bodies needed for effective regulation. as head of state or head of the
today sit with all three branches; executive, he is acting as an
separate functions become blurred. Pharma: status of the common law is executive head of state.
an NB interpretative & supplementary Not all powers listed in constitution
Traditional constitutional theory: resources; jurisprudence continues to are reviewable as admin action.
Executive primary task is policy inform the content of admin law & it’s
making. future development. In practice, SARFU: power to appoint a
Legislative give effect to that common law assists the courts in commissioner of inquiry was NOT
policy by enacting legislation in interpreting the constitution and PAJA. admin action. The power was
accordance w parliamentary Note: some common law is now conferred on the president as head of
procedures prescribed by the unconstitutional state (through s84(2)) rather than
constitution. Bato Star: O’Regan J cautioned that head of the executive. Decision was
Judiciary resolve any disputes as the continuing relevance of the closely related to policy rather than
to meaning or effect of the law. common law needs to be worked out being connected with the
on a case-by-case basis. implementation of legislation (the
SARFU – CC confirmed that hallmark of admin action).
administration is that part of Original legislation: authorise an Note: almost all the S84(2) powers are
government which is primarily administrator to make rules, award excluded from the definition of admin
concerned with the implementation of licenses, charge fees & action in PAJA.
legislation; such implementation is appoint/dismiss staff.
the hallmark of admin action.
, 3
Sometimes administrators can Example: power to make a regulation By contrast, administrative acts of a
perform functions with no authority implies the power to withdraw it – an legislative kind refer to law made by
deriving from legislation (sometimes instance of implication by virtue of an administrators by virtue of power
comes from contract or ownership inherent relationship. granted from a lawful source (usually
rights). a statute). Legislative administrative
Logbro: common-law powers to Distinction between discretionary & activity thus results in delegated
contract & any further powers mechanical powers legislation.
deriving from the contract itself are to Discretionary powers easily
be exercised within the constraints of recognised by the permissive In SA, bulk of legislation is produced
the constitution and any relevant statutory language that confers them not by original lawmaking authorities
legislation. The principles of admin – found in empowering provisions. but by administrative authorities.
justice framed the parties’ contractual Example: power to grant a license in Examples of delegated legislation:
relationship. ‘deserving cases.’ regulations, rules, orders &
Mechanical powers involve almost declarations.
Basic distinction drawn between no choice in the part of their holder –
powers & duties more in nature of duties. Example: Administrative acts
While powers enable things to be power to grant a drivers’ license. An act that implements or gives effect
done, duties require them to be done. to a policy, piece of legislation or an
Duty obliged to perform Distinction between mandatory and adjudicative decision. Policies, laws &
Power discretion/choice implied directory provisions judgments are not self-executing.
Whether a legislative provision Open to the legislature to stipulate They have to be put in operation by
confers a power or imposes a duty what the consequences of non- the public authorities responsible for
largely depends on language used. compliance with a provision are. administering them.
Legislation will typically empower an Consequences of non-compliance
administrator to do something while depend in large part on whether a
also imposing a duty to exercise the provision is mandatory or merely
power in a certain way. directory (permissive).
Express & implied powers
Express powers needed for the Legislative administrative acts
actions & decisions of administrators. (making rules)
Implied powers may be ancillary to When parliament makes legislation,
the express powers or exist as a they do so in accordance with original
necessary or reasonable consequence legislative powers conferred on them
of the express powers. by the constitution.
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