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Administrative Law (ADL2601) exam papers (2015 to 2023) questions and answers
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Administrative Law (ADL2601) exam papers (2015 to 2023) questions and answers
[Meer zien]Voorbeeld 4 van de 168 pagina's
Voorbeeld 4 van de 168 pagina's
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Voorbeeld van de inhoud
May / June 2015Thomas Modiga is a citizen of Sierra Leone. At the beginning of 2014, Mr. Modiga fled
from Sierra Leone in fear of the deadly Ebola virus and seeked refuge in South Africa
on the basis that he requires protection since removal to his home country would
subject him personally to a risk to his life. Upon his arrival at OR Tambo International
Airport, Ms. Koekemoer, the officer working for the Department of Home Affairs,
granted him an asylum seeker permit in terms of section 24 of the Refugee Act 130 of
1998. A month later, the director-general of the Department of Home Affairs, Mr.
Apleni, suddenly withdrew all permits granted to citizens from West Africa, including
Sierra Leone. In fear of his likely deportation, Mr. Modiga seeks your opinion regarding
his legal position.
Answer the following questions and substantiate your answers with reference to the
set of facts above.
Question 1
1.1 Briefly identify an administrative-law relationship in the set of facts and explain the
characteristics of this relationship
Answer 1.1
The administrative-law relationship in this case involves the exercise of governmental
authority and discretion in granting legal rights to asylum seekers under the provisions
of the Refugee Act, with built-in mechanisms for accountability and review of decisions
made by the administrative authority.
1.2 Define “organ of state” with reference to the Constitution. Identify the organs of
state in the set of facts and give reasons for your answer
Answer 1.2
In the context of the South African Constitution, the term "organ of state" refers to
entities or bodies that exercise governmental authority and perform functions on behalf
of the state. These organs of state are defined in Chapter 10 of the Constitution, which
includes various institutions and agencies responsible for different aspects of
governance. Notably, the definition of an "organ of state" is provided in Section 239 of
the Constitution. It states:
"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.
In the set of facts provided:
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, 1. The Department of Home Affairs: This department is clearly an organ of state.
It is a government department responsible for immigration and refugee matters,
among other functions. Ms. Koekemoer, an officer within this department,
granted Mr. Modiga an asylum seeker permit under the authority of the Refugee
Act, which is a piece of legislation enacted in terms of the Constitution.
2. The Director-General of the Department of Home Affairs (Mr. Apleni): Mr. Apleni
is also an organ of state by virtue of his position as the head of the Department
of Home Affairs. He is responsible for the overall administration of the
department, which includes the issuance and withdrawal of permits.
These entities fall within the definition of "organ of state" as they are government
departments and functionaries exercising public powers and functions either under the
Constitution or legislation, specifically the Refugee Act. They have the authority to
make decisions related to the status of asylum seekers and refugees, which directly
affects Mr. Modiga's legal position. Therefore, they are subject to constitutional and
legal principles and obligations, including those related to human rights and
administrative justice.
1.3 Identify the administrative action in the set of facts. In your answer you should give
a full definition of the concept “administrative action” as provided in the Promotion
of Administrative Justice Act (PAJA) 3 of 2000
Answer 1.3
In the set of facts provided, the administrative action is the withdrawal of the asylum
seeker permit granted to Thomas Modiga by Ms. Koekemoer, which was subsequently
ordered by the Director-General of the Department of Home Affairs, Mr. Apleni.
The concept of "administrative action" is defined in the Promotion of Administrative
Justice Act (PAJA) 3 of 2000 in South Africa. According to PAJA, administrative action
is defined as:
"any decision taken, or any failure to take a decision, by— (a) an organ of state, when
exercising a power in terms of the Constitution or a provincial constitution; 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 any legislation, but excluding— (i) a judicial
act; or (ii) an administrative action as defined in section 1 of the National Environmental
Management Act, 1998 (Act No. 107 of 1998), in respect of environmental
authorisations or related decisions."
In this case:
1. The Director-General of the Department of Home Affairs, Mr. Apleni, is part of
an organ of state, namely the Department of Home Affairs. He took the decision
to withdraw the asylum seeker permit previously granted to Mr. Modiga.
2. The withdrawal of the permit is a decision that affects Mr. Modiga's legal status
and right to remain in South Africa, and it is related to immigration matters,
which fall within the purview of the Department of Home Affairs.
Therefore, the withdrawal of the asylum seeker permit by Mr. Apleni constitutes an
administrative action as defined by PAJA, as it involves a decision taken by an organ
of state (the Department of Home Affairs) that affects the rights and interests of an
individual (Mr. Modiga) in a public law context. PAJA sets out the framework for
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,reviewing such administrative actions to ensure fairness, legality, and reasonableness
in their implementation.
Question 2
2.1 Answer the following questions. Each question is provided with a number of
options as possible answers. Only one option or statement in each question is correct.
You must therefore identify the correct option and write down the number of the option
that you have identified next to the question number
2.1.1 In section 195(1) of the Constitution, the _____ are set out
(a) basic values and principles governing public administration
(b) foundational principles regarding just administrative action
(c) common law rules of natural justice
(d) statutory requirements governing all state actions
2.1.2 A ____ administrative law relationship cannot be created, changed or ended by
a decision by the director-general of Home Affairs
(a) joint
(b) subjective
(c) individual
(d) general
2.1.3 The Refugee Act 130 of 1998 is an example of a
(a) persuasive source of law
(b) binding source of law
(c) policy document
(d) international document
2.1.4 It is important to determine whether administrative action is involved in a
particular set of facts, because administrative action is
(a) the threshold requirement for the application of the right to just
administrative action
(b) the requirement that entitles the person in the subordinate position to
immediately seek judicial review
(c) a requirement to hold a public enquiry in terms of section 4(5) of PAJA
(d) required to claim compensation for unjust decisions taken by organs of state
2.1.5 In _____ Holmes JA held that the court will intervene only in cases where the
administrative decision is so grossly unreasonable as to warrant the inference that the
authority had failed to apply its mind to the matter
(a) Standard bank of Bophuthatswana Limited v Reynolds 1995 3 SA 74 (B)
(b) Kotze v Minister of Health 1996 3 BCLR 417 (T)
(c) Roman v Williams 1998 1 SA 270 (C)
(d) National Transport Commission v Chetty’s Motor Transport 1972 3 SA 726
(A)
(5)
2.2 Briefly explain “just administrative action” with reference to the Constitution and
the set of facts (7)
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, Answer 2.2
"just administrative action" under the South African Constitution implies that any
administrative action, including decisions made by the Department of Home Affairs,
must adhere to principles of legality, reasonableness, and procedural fairness. If these
principles are not upheld, individuals like Mr. Modiga have the right to challenge such
actions through judicial review to ensure that their rights are protected and that
decisions are made in accordance with the law.
2.3 What other overarching terms are used to refer to just administrative action? (3)
Answer 2.3
In addition to the term "just administrative action," there are other overarching terms
used to refer to the principles and requirements associated with fair and lawful
administrative actions. These terms include:
1. Administrative Justice: This term encompasses the broader concept of
ensuring that administrative actions are just, fair, and in accordance with the
law. It encompasses the principles of legality, reasonableness, and procedural
fairness.
2. Fair Administrative Action: This term emphasizes the fairness aspect of
administrative actions. It includes notions of impartiality, non-discrimination,
and transparency in the decision-making process.
3. Administrative Law Principles: This term refers to the fundamental legal
principles that govern administrative actions, ensuring they adhere to the rule
of law. It encompasses legality, reasonableness, and procedural fairness,
among others.
These terms are often used interchangeably and collectively to describe the standards
and principles that should guide government and administrative bodies in their actions
and decisions to ensure that they are just, fair, and in compliance with the law.
2.4 List the three forms of abuse of power by an administrator. Briefly explain one of
these forms (5)
Answer 2.4
The three forms of abuse of power by an administrator are:
1. Excessive Use of Power: This occurs when an administrator uses their authority
in an excessive or disproportionate manner, going beyond what is necessary
or reasonable in a given situation. It involves the misuse of authority to achieve
personal or arbitrary objectives, often resulting in harm or injustice to individuals
or groups.
Example: If a government official uses their position to unfairly allocate government
contracts to their friends or family members, even when there are more qualified
bidders, it constitutes an excessive use of power for personal gain, which is an abuse
of power.
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