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ADL2601
- Course
- LAW OF PERSONS (ADL2601)
- Institution
- University Of South Africa (Unisa)
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STUDENT TC SEKGETHOSTUDENT NUMBER 4084 611 3
MODULE AND CODE ADMINISTRATIVE LAW ADL2601
ASSIGNMENT 1 SEMESTER 2
UNIQUE NUMBER 680891
Question 1
Yes, I recognise two organs of state
Organ of state
section 239 of the Constitution1 gives the definition of organ of state as:
(a) any department of state or administration in the national, provincial or local
sphere of government; or any other functionary or institution that:
(i) exercises a power or performs a function in terms of the Constitution or a
provincial constitution; or
(ii) exercises a public power or performs a public function in terms of any
legislation. However, a court or a judicial officer is not included.
In the given set of facts, the following organs of state are identified:
a. Western Cape Department of Environmental Affairs and Development Planning
is department of the provincial sphere of government exercising power in terms
of the provincial constitution;
b. Sedgefield, which is exercising power and performing state function of
addressing water shortage by erecting a desalination plant. It is empowered by
the Western Cape Department of Environmental Affairs using the following
legislations:
I. National Environmental Management Act 107 of 1998 (thereafter
NEMA)2 and
II. Environmental impact assessment (thereafter EIA) in terms of the
Environmental Impact Assessment Regulations of 20103. This is a
subordinate legislation.
1
Section 239(a) of the Constitution of the Republic of South Africa.
2
Referred to in the ADL2601 Tutorial 101/3/2018 Semester 2 Assignment 1 Set of facts.
3
Referred to in the ADL2601 Tutorial 101/3/2018 Semester 2 Assignment 1 Set of facts.
, Question 2
Administrative action
Section 1 of the Promotion of Administrative Justice Act (PAJA) 3 of 20004 defines
administrative action as
any decision taken, or any failure to take a decision, by
(a) an organ of state, when
(i) exercising a power 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; or
(b) a natural or juristic person, other than 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, these does not include executive powers or functions of the National
Executive, the Provincial Executive, the municipal council and the judicial functions
of the judicial officer of a court.
Erecting of a desalination plant is an administrative action. Sedgefield here is a
juristic person and is exercising public power since it is acting on behalf of Western
Cape Department of Environmental Affairs and Development Planning. It is
empowered by NEMA and EIA in terms of Environmental Impact Assessment
Regulation of 2010. Since the local ratepayer’s association is aggrieved and feels
that they were not given opportunity to make input, they were not given reason for
the decision, the expensive infrastructure which will be funded by public money and
the negative impact to the environment, the decision to commence with the erecting
of the plant adversely affect the said association and has external legal effect.
4
Section 1 of the Promotion of Administrative Justice Act (PAJA) 3 of 2000.
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