ADMINISTRATIVE LAW 411
Index:
Class notes: page 1-109
Problem 1-5 with solutions: page 109- 125
Case key principles: 126-173
Exam preparation: 173-187
Class tests :
, 1. Introduction
General
Sasol oil v Metcalfe: limitation of administrative power. This is what will be focused
on in this module. How do we structure administrative power? We are going to look
at what this thing is called administrative power. How do we use administrative
power and how do achieve purposes?
Need to limit state administrative power
Need to facilitate administrative power in effecting policy
Premier Mpumalanga: need to ensure that the state can effectively do what it is
supposed to do, the law should not trip up the state administration. Balance between
controlling power and facilitating state administration. Can be that you want the state
to do something or prevent the state from doing what it has to do , to help your
client. May want to protect the little guy or help a big company.
News flash:
Administrative law is not telling administration what decisions to make. It is about
the way in which the department does it. It's not about the substance of decisions,
it is about the way in which they act. See example about foreign spouses and
regulation of department of home affairs.
NTRODUCTORY PROBLEM
FACTS
On 20 September 2014 the President signed the Legal Practice Act (LPA). When the
LPA comes into force (on a date still to be determined) the existing legislation which
regulate all the branches of the legal profession, will be repealed and replaced with a
single approach. This includes the rules regarding admission to the profession as well
as legal training. The LPA determines that a person will only be admitted to the
profession if he/she has completed the vocational legal training prescribed by the
Minister of Justice which may include community service (section 26).
In November 2015 the Dean of the law faculty of the University of the Southern Cape
(USC) announced that from 2015 all LLB-students will have to complete a compulsory
year of community service between their second and third years of study. The Dean
stated that this requirement will mean that the University will be the only one in the
country which enables LLB students to be admitted as legal practitioners as soon as
they obtain their LLB degree, in terms of the LPA. According to the Dean it is an
important step in preparation for the coming into force of the LPA.
The Judicial Society (JS) of the USC contacts the Dean for further particulars. One of
the questions which the JS poses to the Dean is whether this requirement is applicable
to current students or whether it will only affect new students who register in 2016.
The Dean indicates that this requirement will be applicable to all students, thus both
new and current LLB students. The Dean also indicates that this requirement will work
retrospectively which means that all existing senior students will have to complete a
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,compulsory year of community service irrespective of which year of study they are in.
The Dean makes it clear that from 2016 no student will receive an LLB from the USC
if they have not completed the compulsory year of community service.
The JS takes the matter to the Student Council (SC) who in turn brings it under the
attention of the Rector. The Rector replies to the SC that he would rather not get
involved in what he calls "household issues" of the faculty, especially when it is about
requirements of the relevant profession to which the faculty belongs. He indicates
though that he will have the matter investigated and then give formal feedback.
The following legislative provisions are relevant:
HIGHER EDUCATION ACT 101 OF 1997
26 Institutional governance structures
(2) Every public higher education institution must establish the following structures and
offices:
(a) A council;
(b) a senate;
(c) a principal;
(d) a vice-principal;
(e) a students' representative council;
(f) an institutional forum; and
(g) such other structures and offices as may be determined by the institutional statute.
28 Senate of public higher education institution
(1) The senate of a public higher education institution is accountable to the council for
the academic and research functions of the public higher education institution and
must perform such other functions as may be delegated or assigned to it by the
council.
30 Principal of public higher education institution
The principal of a public higher education institution is responsible for the management
and administration of the public higher education institution.
INSTITUTIONAL STATUTE OF THE UNIVERSITY OF THE SOUTHERN CAPE
9. The Rector’s Management Team (RMT)
The day-to-day management of the University is the responsibility of the Rector’s
Management Team, consisting of the rector, the vice-rectors, the person with the
primary responsibility for the financial management of the University (if he or she is
not a vice-rector) and those persons nominated by the rector and approved by Council.
11. Functions of the Council
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,(1) Council governs the University subject to the Act, any other legislation and the
Statute, and exercises a general supervisory responsibility in respect of academic and
operational matters and institutional policy and strategy.
(2) Without detracting from the generality of sub-paragraph (1),
(i) Council controls the assets of the University;
(ii) Council is in terms of Section 34 of the Act responsible for the appointment and
conditions of service of staff, provided that academic employees are appointed after
consultation with Senate;
(iii) Council, after consultation with Senate, determines the admissions policy in terms
of sections 37(1) to (2) of the Act; and
(iv) Council, with the concurrence of Senate, determines a language policy in terms of
Section 27(2) of the Act.
29. Powers and duties of the Senate
Subject to the provisions of the Act or any other legislation and in addition to the
powers and duties prescribed therein or in this Statute -
(a) Senate determines, subject to the approval of Council, the conditions for the
obtaining of degrees, diplomas or certificates, and decides which persons have
satisfied said conditions;
(b) Senate communicates to Council the names of the persons who have satisfied the
conditions determined in Subparagraph (a);
(c) Senate supervises and controls all examinations held by the University, in
accordance with the provisions laid down by Senate for this purpose and approved by
Council.
LEGAL PRACTICE ACT 28 OF 2014
24 Admission and enrolment
(1) A person may only practice as a legal practitioner if he or she is admitted and
enrolled to practice as such in terms of this Act.
(2) The High Court must admit to practice and authorise to be enrolled as a legal
practitioner, conveyancer or notary or any person who, upon application, satisfies the
court that he or she-
(a) is duly qualified as set out in section 26;
(b) is a-
(i) South African citizen; or
(ii) permanent resident in the Republic;
(c) is a fit and proper person to be so admitted; and
(d) has served a copy of the application on the Council, containing the information
as determined in the rules within the time period determined in the rules.
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,26 Minimum qualifications and practical vocational training
(1) A person qualifies to be admitted and enrolled as a legal practitioner, if that person
has-
(a) satisfied all the requirements for the LLB degree obtained at any university
registered in the Republic, after pursuing for that degree-
(i) a course of study of not less than four years; or
(ii) a course of study of not less than five years if the LLB degree is preceded by a
bachelor's degree other than the LLB degree, as determined in the rules of the
university in question and approved by the Council; or
(b) subject to section 24 (2) (b), satisfied all the requirements for a law degree
obtained in a foreign country, which is equivalent to the LLB degree and recognised
by the South African Qualifications Authority established by the National Qualifications
Framework Act, 2008 (Act 67 of 2008); and
(c) undergone all the practical vocational training requirements as a candidate legal
practitioner prescribed by the Minister, including-
(i) community service as contemplated in section 29, and
(ii) a legal practice management course for candidate legal practitioners who intend
to practice as attorneys or as advocates referred to in section 34 (2) (b); and
(d) passed a competency-based examination or assessment for candidate legal
practitioners as may be determined in the rules.
(2) An attorney qualifies to be enrolled as a conveyancer, if he or she has passed a
competency-based examination or assessment of conveyancers as determined in the
rules by the Council.
(3) An attorney qualifies to be enrolled as a notary, if he or she has passed a
competency-based examination or assessment for notaries as determined in the rules
by the Council.
29 Community service
(1) The Minister must, after consultation with the Council, prescribe the requirements
for community service from a date to be determined by the Minister, and such
requirements may include-
(a) community service as a component of practical vocational training by candidate
legal practitioners; or
(b) a minimum period of recurring community service by practising legal
practitioners upon which continued enrolment as a legal practitioner is dependent.
(2) Community service for the purposes of this section may include, but is not limited,
to the following:
(a) Service in the State, approved by the Minister, in consultation with the Council;
(b) service at the South African Human Rights Commission;
(c) service, without any remuneration, as a judicial officer in the case of legal
practitioners, including as a commissioner in the small claims courts;
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, (d) the provision of legal education and training on behalf of the Council, or on
behalf of an academic institution or non-governmental organisation; or
(e) any other service which the candidate legal practitioner or the legal practitioner
may want to perform, with the approval of the Minister.
(3) The Council may, on application and on good cause shown, exempt any candidate
legal practitioner or legal practitioner from performing community service, as set out
in the rules.
94 Regulations
(1) The Minister may, and where required in the circumstances, must, subject to
subsection (2), make regulations relating to-
(a) the establishment of a mechanism to provide appropriate legal education and
training as contemplated in section 6 (5) (f);
(b) the establishment of a mechanism to monitor progress on the implementation
of the programmes relating to the empowerment of historically disadvantaged legal
practitioners as well as historically disadvantaged candidate legal practitioners
referred to in section 6 (5) (h) (iv);
(c) a procedure for the election of legal practitioners to the Council as contemplated
in section 7 (1) (a);
(d) the manner in which teachers of law are designated for purposes of the Council
as contemplated in section 7 (1) (b);
(e) the areas of jurisdiction of Provincial Councils as contemplated in section 23
(2) (b);
(f) the admission and enrolment of foreign legal practitioners as contemplated in
section 24 (3);
(g) the certificate to be issued by the registrar of a Division of the High Court to the
effect that an attorney has the right to appear in the High Court, the Supreme Court of
Appeal or the Constitutional Court as contemplated in section 25 (3);
(h) appropriate relevant experience as contemplated in section 25 (3) (b);
(i) the practical vocational training requirements for candidate legal practitioners as
contemplated in section 26 (1) (c);
(j) the rendering of community service as contemplated in section 29 (1).
(2) The regulations contemplated in subsection (1) must-
(a) in the case of subsection (1) (a) to (l) and (o) and (p), be made after consultation
with the Council, unless otherwise indicated; and
(b) in the case of subsection (1) (m) and (n), be made after consultation with the
Council and the Board.
(3) Any regulation made under subsection (1) must, before publication thereof in
the Gazette, be approved by Parliament.
QUESTIONS
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, Consider the following questions from the perspectives of the Dean, JS and the
Rector:
1 If the JS decides to challenge the Dean's decision, what are the legal rules on
which they can rely?
2 Did the Dean act as an organ of state, in other words, with state authority/power?
3 If so, was the Dean’s conduct administrative action according to the definition
in section 1 of Act 3 of 2000?
4 Did the administrative action fulfil the requirement that all such action must be
lawful, in other words that it must comply with the prescripts of the law?
5 If not, does the JS have a remedy, and if so, what can they claim with that
remedy?
Introductory problem discussion class:
what is the first problem?
The dean cannot make the decision on her own, there is law that regulates the
situation. the law says one thing and what actually happened is different. There is no
authority. Authorisation however is not always relevant. To close down a company
and send all the employees packing, there is no authority needed. If it is a government
department and the minister is bored, he cannot just close down that department. On
paper the two situations are comparable but in practice it differs.
the rules that are being applied are not in existence yet:
as students, what kind of problems would that create for you?
there is extra expenses, you may be working at a radically reduced rate and
postponing contracts to work at firms, cannot start paying your student account. You
are retroactively changing the requirements of the degree which the students when
starting the degree did not agree. This decision was made without consulting the
students. There was no consultation
What would the rector and dean refer to?
what other issues are there regarding authorisation:
legal practice Act is not in force, therefore their argument is based on a mistaken fact,
the fact does not exist = error in law. It is irrational there is no link between the
information and the conclusion. The most obvious problem is authorisation. It can be
justified in the sense that it is sensible to follow this course. However, she states that
it is the only manner in which you will be able to
content or structure of community service has not been determined yet, it may be that
the students may have to do community service again as determined by the minister
because the minister is responsible for determining the content of the community
service.
1. not legally in force yet
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, 2. anyone can be exempted from having to do it
3. the content has not yet been determined.
Which legal rules are relevant:
are public law rules applicable to this set of facts: funding of the university comes
from the state, which rights are relevant: the right to education , dignity, inequality
within university and between universities.
admin Law: regulation of public authority in the form of administrative action. you get
private law relationship and relationship between public authority and private individual
exercising public authority.
are there private law rules applicable? there is a private law relationship and element
but their public law relationship that outweighs it
there is however a contract that has been concluded between students and the
university.
e.g. if you studying, thinking it is a three-year degree and it is suddenly a four degree
One argument is that this can be categorised into private law. Both public law and
private law is relevant and applicable at the same time.
why would administrative law be relevant?
representative of an organ of state is making decision in an unauthorised manner.
PAJA defines organ of state by referring to section 239 of the constitution.
Just because primary function is public does not mean that everything it does is
public. The right to education is relevant because they are exercising a public function
in this regard [higher education Act]. Organ of state is part of the definition of
administrative action. administrative law regulates public authority in the form of
administrative action.
For administrative law to apply there must be an administrative action. What we
need show is that there is an administrative action. Public law in general regulates
different forms of public authority.
Principle of legality can also be argued even if it is argued that there is administrative
action. : SAARFU, pharmaceuticals.
To be an administrative action:
1. there has to be a decision
2.of an administrative nature
3.decision has to be made in terms of an empowering provision
4 negative impact on rights
5. decision has to amount to performing of a public power
6.there has to be a direct legal effect
7. By an organ of state subject to certain functions
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