These are class notes containing everything said/dealt with in class for Unit 1 and not full summaries which incorporate the textbook(s) as well. Please note that these notes were typed on Microsoft OneNote which is why some of the content might spill over to the next page in a weird way. If this b...
Unit 1: Introduction to administrative law
Wednesday, 30 January 2019 11:20 PM
Prescribed Reading
Chapter 1 of Geo Quinot (ed) Administrative Justice in South Africa: An Introduction (2015)
Sections 1(c) and 33 of the Constitution
Youtube video: Lacking service delivery -- maladministration or resource shortages?
Section 1(c) of the Constitution:
Sections 1, 3, 4, 5, 6, 7, 8 and 9 of PAJA
"The Republic of South Africa is one, sovereign, democratic state founded
Section 33 of the Constitution
on the following values: (c) supremacy of the constitution and the rule of
Hoexter (see page references within the notes below)
law"
Section 33 of the Constitution:
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these
rights, and must—
(a) provide for the review of administrative action by a court
or, where appropriate, an independent and impartial
tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.
The administrative law is the body of legal rules intended to achieve administrative justice by
regulating and controlling the performance of ‘administrative action’, a sub-set of public power that
is exercised in the course of administering the affairs of the state. Administrative law is a sub-set of
constitutional law. In this unit, we address a number of key concepts and certain foundational
knowledge necessary to understand administrative law, as well as the sources of administrative law.
The technical meaning of administrative action will be discussed in unit 2. Administrative action that
does not meet certain standards (i.e. that is not lawful, procedurally fair or reasonable) may be
judicially reviewed in a court, and a number of remedies may be granted by the court in favour of a
party aggrieved by administrative action that is unlawful, procedurally unfair or unreasonable,
provided internal remedies have been exhausted and there has not been an undue delay in pursuing
a review. Those affected by administrative action are entitled to request an explanation/justification
for the action (i.e. reasons). The standards against which the courts scrutinise administrative action
in review proceedings (lawfulness, fairness and reasonableness) will be discussed in unit 3. In unit 4
the duty to provide reasons for administrative action will be discussed. The enforcement of
administrative law by the courts in judicial review proceedings will be discussed in unit 5.
, administrative law by the courts in judicial review proceedings will be discussed in unit 5.
The separation of powers and judicial review
○ 3 branches of government + functions
3 branches exercise checks and balances against each other
○ Sep of power is not pure - has overlaps of power Judiciary also makes law; executive is
able to make subordinate legislation (regulations under an Act)
∴ minister can make subordinate legislation
○ Sep of power ≠ universal doctrine applicabe in all other countries
In liberal democratic states judiciary intervening with executive would be considered
intervening
○ Checks and balances independent judiciary required to test power performed by
executive and legislative branches against the Constitution and it does so in judicial review
proceedings
When it does so it must do it respectfully (judicial deference) they must not Deference to the other branches = respect
overstep their boundaries/power
They are required to investigate whether the manner in which power is exercised is in
line with the Constitution
Case where the courts were engage in judicial review: Patricia de Lille asked court to
review decision to remove her as mayor of CT
Judicial review is about scrutinising the regularity of power, the manner in which
conduct is performed, as opposed to whether the correct decision has been taken
When the conduct under scrutiny is a particular kind of public power, e.g.
administrative power, the cause of action for review is section 33 of the Constitution Know what is said in s33
which is given effect by PAJA
□ PAJA operationalises section 33
□ Cause of action must be founded on PAJA
□ When public power does not amount to administrative action they must take • PAJA - administrative action
public power on review via the principle of legality (founded in Const) if public • Principle of legality (from
power is not administrative action Const) - to review public power
□ When the conduct under scrutiny is public power that does not amount to in general which is not
admin action, judicial review may occur (>>>) administrative action
Two causes of action for review of public power:
Administrative action PAJA
□ Which tools were used in the EFF case?
Public power in general (executive) Principle of legality
- Legal basis of DA: PAJA + principle of legality (saw decisions as administrative
○ Rule of law: everyone is subject to and equal to the same law; which includes all the official
in nature)
exercising public power (From the President to the lowest ranking official)
- Legal basis of EFF: principle of legality (characterised decisions as executive in
Their conduct must be authorised by the law
nature)
Nobody is above the law
○ Court didn’t make a clear finding on this issue
○ Principle of subsidiarity:
○ How does principle of subsidiarity relate to PAJA?
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