STUDY UNIT 2
THE ADMINISTRATIVE-LAW RELATIONSHIP
The characteristics of the administrative-law relationship
(1) At least one of the legal subjects must be a person or body who exercises power.
(2) More important, the position of power must be held by a person or body clothed with state authority, and
who is able to exercise that authority.
The authoritative person or body – organ of state or natural or juristic person – must have the power to
prescribe, restrain or allow other individuals or juristic persons to act in a certain way.
The authoritative person uses the authority to compel the other party to act in a specific way.
Such exercise of power may affect the rights and interests of the person in the relationship leaving such
person in a subordinate position.
It is therefore an unequal relationship.
General and an individual administrative law relationship
The general or objective relationship
The legal rules governing the relationship between the parties apply to all the subjects within a particular
group.
These rules thus apply impersonally, that is generally and objectively, and non-specifically and NOT to a
particular identifiable legal subject.
The general relationship is created, changed or ended by legislation (including delegated/ subordinate
legislation), that is by general means.
A general administrative law relationship cannot be created, changed or ended by, for example, a decision
by the Director-General of Home Affairs.
The individual or subjective relationship
Legal rules apply personally and specifically between the parties.
The legal rules apply to specifically identifiable legal subjects.
The content of the individual relationship will vary from case to case.
Individual relationships are created by individual administrative decisions.
Furthermore, individual relationships are not affected by new general legislative provisions, unless the
amending Act specifically states that it affects the relationship.
The presumption is that an existing individual relationship is not affected by amending legislation – an
example of the presumption against retrospectivity.
STUDY UNIT 3
THE LEGAL SUBJECTS OF THE ADMINISTRATIVE LAW RELATIONSHIP
ORGAN OF STATE
Section 239 of the Constitution:
“organ of state” means
,(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution
i. exercising a power or performing a function 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,
but does not include a court or a judicial officer.
Any department of state or administration: In the national sphere, refers to departments of state or
government departments.
“Organs of state” include
o National sphere - the members of cabinet (the ministers who are the executive heads of the various
departments of state), Deputy-ministers, Both the President, and the Deputy President.
o Provincial sphere – the provincial public service, the Premiers of the nine provinces, and the other
Members of Executive Councils (MECs) who are the executive heads of the various provincial
departments of state.
o local sphere - municipalities and various municipal councils vested with executive authority
Note, that although the President, Deputy President and ministers are organs of state, not all their
functions constitute administrative action. Some of their functions are executive or constitutional
functions.
STUDY UNIT 4
THE SOURCES OF ADMINISTRATIVE LAW
Binding/authoritative sources
(1) The Constitution of the Republic of South Africa, 1996
(2) Legislation
(3) Case law/judicial precedent
(4) Common law
(5) Administrative practice (custom or usage) and
(6) Ubuntu
(7) International law
Persuasive sources
(1) Writings in books and journals expressing academic opinions
(2) Policy documents such as Green and White Papers
(3) Reports by “state institutions supporting constitutional democracy” such as reports of the Human Rights
Commission
(4) Foreign law
Legislation
, Legislation is the primary source of administrative power.
All legislation must comply with the provisions of the Constitution.
Enabling (original) legislation
Enabling (original) legislation is passed by Parliament in the national sphere of government.
Two examples of Acts of Parliament that complement the provisions of the Constitution and are crucial to
Administrative law as well, are
1. PAJA
2. the Promotion of Access to Information Act 2 of 2000 (PAIA) (s 32(2) of the Constitution)
Original legislation is also passed by the nine provincial legislatures in the provincial sphere of government.
Examples of provincial legislation are the various Schools Education Acts passed by the legislatures of the
nine provinces, such as the Gauteng Schools Education Act 6 of 1995.
Original legislation is passed too by elected local governments, the municipal councils, in the local sphere of
government.
The Constitutional Court concluded that these by-laws constitute original legislation.
Delegated legislation
Delegated legislation is also called “subordinate legislation”.
The distinctive characteristic of delegated legislation is that it must be enacted in terms of original
legislation.
Such legislation must be authorised by the enabling/empowering (original) legislation.
Another feature of delegated legislation is that such delegated legislation must not conflict with the
provisions of the enabling Act.
Examples are
proclamations of the President (in his executive capacity), such as proclamations issued in terms of the
empowering statute to declare the date of commencement of a particular statute
Regulations made by ministers (the members of the cabinet in the national executive) in terms of an
enabling statute.
Delegated legislation may be found in the provincial sphere of government as well.
Example, regulations issued in terms of the School Education Act 6 of 1995 (Gauteng) by that province’s
Member of the Executive Council for Education (the MEC), and so on.
Regulations are also issued in the sphere of local government.
For example, regulations in terms of the relevant by-laws are issued to regulate traffic in a particular
municipal area, and so on.
STUDY UNIT 5
ADMINISTRATIVE ACTION
The application of the right to just administrative action (s 33 of the Constitution) depends on whether
administrative action has been performed by either an organ of state or any person exercising public
power/performing a public function in terms of legislation.
, Administrative action is the entrance – literally the doorstep or threshold – requirement for the application
of the right to just administration action.
THE DEFINITION OF “ADMINISTRATIVE ACTION”
Constitutional instructions relating to administrative action
Section 33 of the Constitution defines “just administrative action”.
Section 33 is an example of where the Constitution contains only the broad framework but (in s 33(3)) has
instructed the legislature, that is Parliament, to provide details.
In other words, Parliament has been instructed to give effect to the constitutional provision.
Promotion of Administrative Justice Act 3 of 2000 (PAJA) gives effect to the rights contained in section 33 of
the 1996 Constitution.
Administrative action as described in PAJA
Section 1 of PAJA
1 In this Act, unless the context indicates otherwise –
‘administrative action’ means 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
But does not include:
1. the executive powers or functions of the National Executive
2. the executive powers or functions of the Provincial Executive
3. the executive powers or functions of a municipal council
4. the legislative functions of Parliament, a provincial legislature or a municipal council
5. the judicial functions of a judicial officer of a court
6. a decision to institute or continue a prosecution;
7. a decision relating to any aspect regarding the nomination, selection or appointment of a judicial
officer or any other person, by the Judicial Service Commission
8. any decision taken, or failure to take a decision in terms of any provision of the promotion of Access to
Information Act, 2000
9. any decision taken, or failure to take a decision in terms of section 4(1) [of PAJA]
