ADL2601 Assignment 1 Unique Number (675826
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Question 1
1.I Discuss the meaning of an Organ of State as defined in the Constitution of South Africa,1996. Support your answer with reference from the relevant legislation.
1.2 Considering the ab...
ADL2601 Assignment 1
1.I Discuss the meaning of an Organ of State as defined in the Constitution
of South Africa,1996. Support your answer with reference from the relevant
legislation. (Marks 5)
The term "organ of state" is defined in Section 239 of the Constitution of the Republic of South
Africa, 1996. It refers to various institutions and entities that play a role in the functioning of the
state and in carrying out its functions. Here’s a detailed discussion:
Definition of an Organ of State
Section 239 of the Constitution defines an organ of state as:
1. Any department of state or administration in the national, provincial, or local
sphere of government.
2. Any other functionary or institution:
○ Exercising a power or performing a function in terms of the Constitution or
a provincial constitution.
○ Exercising a public power or performing a public function in terms of any
legislation.
Key Elements
1. Departments of State or Administration: This includes government departments at the
national, provincial, and local levels. For example, the Department of Health, the
Department of Education, and municipal administrations.
2. Functionaries or Institutions Exercising Constitutional or Legislative Powers:
○ These could be bodies established by the Constitution or other laws, like the
South African Human Rights Commission or the Public Protector.
○ They must be involved in exercising public power or performing public functions,
such as regulatory agencies, public universities, and certain state-owned
enterprises.
Examples from Legislation
● Public Finance Management Act (PFMA), 1999: This act applies to all organs of state
in the national and provincial spheres, illustrating their role in managing public funds and
ensuring accountability.
, ● Municipal Systems Act, 2000: This act governs local municipalities, which are
considered organs of state, and outlines their responsibilities in delivering services to
communities.
Case Law
Case law further clarifies the scope and interpretation of what constitutes an organ of state. For
example:
● Independent Electoral Commission v Langeberg Municipality (2001): The
Constitutional Court held that the Independent Electoral Commission is an organ of state
because it exercises public power in terms of the Constitution.
● Chirwa v Transnet Ltd and Others (2008): The court considered Transnet, a
state-owned enterprise, as an organ of state because it performs public functions.
Conclusion
In summary, an organ of state, as defined in the Constitution of South Africa, includes a wide
range of entities that perform public functions or exercise public powers. This definition ensures
that various bodies involved in the administration and execution of state functions are held
accountable and operate within the legal framework established by the Constitution and relevant
legislation. This comprehensive definition helps maintain the transparency, accountability, and
effectiveness of public administration in South Africa.
1.2 Considering the above facts, list the requirements for just
administrative action ( Marks 6 )
In the context of South African law, the requirements for just administrative action are primarily
derived from Section 33 of the Constitution of the Republic of South Africa, 1996, and the
Promotion of Administrative Justice Act (PAJA), 2000. Here are the key requirements for just
administrative action:
Section 33 of the Constitution
1. Lawfulness: Administrative action must be authorized by law. This means that any
decision or action taken by an organ of state must have a legal basis.
2. Reasonableness: The decision or action must be reasonable. This implies that it should
be rational and based on logical reasoning.
3. Procedural Fairness: Administrative action must be procedurally fair. This entails
providing affected individuals or parties with a fair hearing and an opportunity to present
their case before a decision is made.
Promotion of Administrative Justice Act (PAJA)
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