Exam (elaborations)
Preparation for Administrative law exam
- Institution
- University Of The Western Cape (UWC)
This document contains a list of questions and answers to assist you in obtaining the best mark possible.
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i) In assisting Mark as to whether a refusal to issue the license constitutes administrative action,the Motau methodology, as developed in the case of Minister of Defence & Military v Motau will
be used.
To begin, according to s1 of PAJA, a decision or failure to take a decision by an organ of state
must be decided by an administrator, this was demonstrated by the fact that the Tribunal rejected
Mark’s application and went further to say that their decision is final and cannot be appealed
against.
Secondly, it is necessary to determine whether the decision was made by a governmental organ.
To define who comprises of an organ of state, s239 of the Constitution of RSA, 1996, uses the
abbreviation DAFI to specify who it includes and it is also reiterated in s1 of PAJA. The Tribunal is
clearly an institution. Under PAJA, in order for an organ of state to make a decision, such as the
Tribunal did by rejecting the application, the decision must be exercised in terms of any
legislation, which it was in terms of s20(1) of the Liquor Act 4 of 2008.
The Tribunal is granted a public power under s20(1) of the Act. This would be an empowering
provision because the Tribunal’s decision was in accordance with the Act and derives from s1(a)(ii)
of PAJA.
Fifth and sixth, in terms of having an adverse legal effect, by the Tribunal rejecting Mark’s
application without giving reasons for the rejection, it has an adverse legal effect on the public. In
addition, it has a direct, external and legal effect on Mark who is not an organ of state,
considering the Tribunal’s decision is final and cannot be appealed against.
Finally, the epp on the part of the Tribunal does not fall within any of the exceptions to
administrative action as listed in s1(aa)-(ii) of PAJA. Accordingly, the decision of the Tribunal to
reject the application for the license without reason, constitutes an administrative action in terms
of s6(2)(b)/s6(2)(c) of PAJA.
ii) Mark can launch a judicial review application in the High Court. The application must be
launched within 180 days in terms of s7 of PAJA. His cause of action should be based on the
grounds set out in s6 of PAJA, specifically, s6(2)(b) (failure to comply with mandatory and material
procedure)/ s6(2)(c) (procedural fairness).
Ultimately, it is most common for the court of review to send a matter back to the decision maker.
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