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ADL 2601 Administrative LAW ADL Summary Notes **“UNIT 6 – REQUIREMENTS…

- - - - Governs relationships between legal subjects
      - Relationships are not on equal footing (inequality – vertical relationship)
      - Always a superior / senior official involved
    - - The conduct of state officials (administrators) when exercising a public power / performing a public function ito legislation
      - Facilitates & regulates human behaviour / interaction
    - - 3 REQUIREMENTS for ADMIN ACTION
        
        MUST be LAWFUL
        
        must comply with all req of law (as found in sources of law)
        
        MUST be REASONABLE
        
        Must have a reasonable effect / result
        
        Discretion exercised & decision taken by person in authority must be correct
        
        (based on objective facts & circumstances)
        
        MUST be PROCEDURALLY FAIR
        
        What is procedurally fair
        
        Correct procedure must be used to take decision
        
        Subordinate party must be given chance to defend position before
        
        decision is taken
        
        When decision results in someone’s rights being adversely affected – written reasons for decision should be given
      - The right of every person
      - All admin action by persons exercising public power must be “LAWFUL, REASONABLE & PROCEDURALY FAIR”
    - - The way / manner in which authority / power has been exercised
- - - - • Person who exercises authority & private individual in subordinate position
      - • Person who exercises authority & lower-ranking official in same department (inter se)
    - - General (objective) relationship
        
        Legal rules governing relationship between parties apply to all subjects within group
        
        EG REFUGEES must comply with the REFUGEES ACT
        
        The relationship is between REFUGEES and the Dept of HOME AFFAIRS
        
        rules apply impersonally & non-specifically (NOT to particular legal sunject)
        
        Created, changed / ended by legis only (by Legislation)
      - Individual (subjective) relationship
        
        Rules apply personally & specifically between parties
        
        Contents will vary from case to case
        
        Created by individual admin decisions
        
        Not affected by new general legis provisions, unless Amending Act specifically that it affects relationship
        
        unless specified in Amended Legislation
- - - - Section 239 of the Constitution
        
        organ of state” means
        
        any department of state or administration in the national, provincial or local sphere of government
        
        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
        
        does not include a court or a judicial officer
        
        any other functionary / institution (i) exercising power / performing funct ito Const / Prov Const”
        Or (ii) exercising power / performing public funct ito any legis
        
        refers to functionaries & institutions part of public admin
        
        MORE DETAIL split across NATIONAL, PROVINCIAL, LOCAL
        
        NATIONAL
        
        Departments of state / gov
        
        Eg. Dept of Agriculture; Arts; Culture; Science & Technology; Education etc
        
        May refer to entire department and/or to its functionaries (public servant)
        
        1 more item...
        
        PROVINCIAL
        
        Includes Prov dept
        
        Premiers of 9 provinces;
        
        & other members of Exec Councils (MECs) – all executive heads of various departments
        
        LOCAL
        
        Include Munic parties & various munic councils vested with executive auth
        
        Role of Associations, Clubs & other “private” organisations”
        
        Non- STATUTORY Bodies
        
        Voluntary assoc – sports club, church assoc
        
        Relationship between members & management – similar in certain respects to admin/subordinate relationships of public law (unequal relationships)
        
        Might have professional status but are NOT organs of STATE
        
        Not created by LEGISLATION they do NOT have STATE authority
        
        Traditional common law rules of admin apply
        
        matters as admission, suspension etc are governed by their Consts (courts will interpret powers strictly on basis of agreement betwn members & assoc as contained as in their Consts)
        
        Persons (natural / juristic) whose rights & interests are affected by exercise of authority
        
        Person in subordinate position
        
        ordinary Citizen
        
        Lower ranking Government Official
        
        in this scenario : superior gov official / body exercises auth over subordinate official
        
        Remains public law relationship
        
        Person in subordinate position must obey instructions of superior officer & may be prohibited from action in certain way
        
        . Is the subordinate person “helpless” (powerless) in the authoritative relationship?
        
        No – subord person never stripped of their rights, privileges & interests.
        
        Those in auth not allowed to misuse their superior power – obliged to act in accordance with the law
        
        Also their duty to act in interest of people / serve & promote public interest
        
        Person in subord position – protected by law (the Const)
- - - - = application of right to admin action depends on if “admin action” has been performed by either
        
        organ of state any other exercising public power.
        
        There are actions that may look like admin action but are NOT
    - - Courts will only act in terms of Admin law if Admin Action was taken
  - - - any decision of an organ of state of an admin nature made ito prescriptions of empowering Laws
      - any decision of private persons when they exercise public power / perform public functions ito empowering laws
    - - President of RSA v SA Rugby & Football Union Pharmaceutical Manufacturers Assoc of SA In
      - ex parte President of RSA
    - - Sec 33 of Const Broad Framework
        
        left it to legis to provide details
        
        Deadline for adoption of such legis was Feb 2000
        
        Legis was drafted by SA Law Comm & redrafted
        
        finaly passed by Parl as Promotion of Admin Justice Act 3 of 2000
        
        Act gives effect to rights contained in sec 33 of Const
    - - • Const law
        
        regulates interaction between organs of state at highest level & judiciary
      - • Admin law
        
        concerned with only one branch of state system not lncluding Executive
    - - Decisions must be taken ito empowering provisions
        
        must be allowed by law
      - Decision must adversely affect rights
        
        impose a burden on the individual
      - Functionaries & institutions capable of making decisions & performing admin action are organs of state & private persons exercising public power
      - direct external legal effect
    - - Powers & functions of Nat -; Prov - & local Exec
      - Legis functions of Parl, Prov Legi & local councils
      - Judicial functions of Judic officer of a court
      - Decisions under Promotion of Access to Info Act 2 of 2000 (exclusion for sake of simplification.
  - - - Making & issuing of delegated legis (legislation)
        
        when authorised to do so by enabling legis (subordinate legis)
      - Most easily recognised & published in official doc – Gov Gazette
      - General relationships are created, varied and/or ended my admin legis actions
      - Specific req apply to adoption, amendment / repeal of all legis admin action
      - Power to delegate a legis power exists only when there is express statutory auth for this
      - Must be within framework of auth given by the enabling Act
    - - Legal rules interpreted & applied to concrete situations
      - Formal & Material tests are applied to determine whether func / institution is a judic admin funct / instit
        
        Material tests
        
        Is there legal dispute / uncertainty re rights, privileges, freedom, power / duties?
        
        Has there been a decision & application of law re rights & duties?
        
        Formal Test
        
        Does admin institution possess similar attributes to those of courts )that is
        
        independence, accessibility, application of specific hearing procedure & legal
        
        qualification of its members?
        
        Only formal teat of real value is test relating to legal force of judicial act.
        
        Whether effect of decision is legal & binding?
    - - where admin law relationships are created or varied
      - 2 broad categories
        
        Consensual (multilateral)
        
        Req consent / cooperation of person(s) affected in particular admin law relationship
        
        EG collective labour agreement
        
        Authoritative (unilateral)
        
        doesn’t need consent
        
        Does not need cooperation of other person to make decision
        
        EG granting of a trading license
        
        MUST be within the boundaries of the law
        
        Further DIVIDED into
        
        Mechanical admin action
        
        Discretionary admin action
        
        Action by police
        
        Action relating to internal / domestic functioning of public admin
  - - - when admin action takes effect
        
        When does legal action take effect?
        
        necessary to determine this period = the period in which to appeal to a higher review tribunal / COURT
        
        Distinguish between the Admin Action in order to determine the admin action taking affect
        
        Legis Admin Action
        
        Affects person as soon an regulation / proclamation has been promulgated & stated date of commencement arrives
        
        Internal Admin is bound by legis action as soon as legis has been adopted
        
        Purely Admin Action
        
        – Takes effect upon decision becoming known (by publication/indiv notification
        
        Judicial admin action
        
        Takes effect as soon as particular judicial institution gives its decision / delivers judgment
        
        2 more items...
      - when legal force of admin action is terminated
        
        Termination of legal force of admin law
        
        Forms of Termination
        
        Terminated by repeal; amendment; lapse of time; withdrawal of one of subjects to relationship or by court order
        
        IF an organ of State cannot terminate its decision its functus officio
        
        FUNCTUS OFFICIO = having completed task / duty; no longer functioning”)
        
        Legislative Admin Action
        
        Legis organ may repeal / amend legis admin at any time
        
        Repeal my not have retrospective effect
        
        Where indiv has acquired rights as result of legis action, repeal /amendment doesn’t affect these rights
        
        Judicial Admin Action
        
        Is functus officio once decision is made & can’t alter / repeal decision
        
        force of res iudicata & may only be altered, rescinded or upheld by higher
        
        usually HIGH COURT
        
        Purely Admin Action
        
        • Invalid admin action
        
        May be altered / withdrawn by administrator
        
        But if affected person has questioned validity of admin action before court
        
        acquired rights or privileges action can’t be altered by auth
        
        Will affect only those “targeted” by decision
        
        • Valid admin action
        
        Valid onerous (“burdensome”) admin action may be altered by administrator
        
        Valid beneficial admin action may be altered by auth only where power to do so has been conferred expressly / by necessary implication
        
        Where admin action affects status of an indiv – the auth may not rescind withdraw decision unless revocation is authorised expressly / by necessary implication eg. Adoption order
- - - - Lawful
        
        must obey the prescriptions of the law
      - Reasonable
        
        the administrator must exercise discretion impartially
      - Procedurally fair
        
        must follow the correct procedure in taking the decision
      - And written reasons must be provided
        
        for any admin action that adversely affects rights
  - - - just admin action determines the legal boundaries of any administrative action and ensures that admin action is performed in accordance with all the relevant rules prescribed by law
  - - - creating a duty to achieve and uphold a fair and honest administration which serves the interests of the general public. In being accountable, responsive, open and transparent in the execution of its functions, administrative action will ensure
        
        increased participation by the public in the exercise of public functions
        
        that the administration will weigh up their decisions against the values enshrined in the Constitution
        
        administrative accountability
  - - - to act beyond or exceed one’s powers
    - - within power. a collective concept that includes all the requirements for valid admin action
    - - when all the requirements of the law have or have not been met
    - - requires that ant admin action must be in accordance with ALL the requirements of the law
      - regarded as the basis of all admin law.
      - public administration must
        
        serve and promote the public interest
        
        protect and respect fundamental/human rights
- - - - contains the list of values upon which the Constitution is based
        
        Sec 1(a)
        
        values of human dignity, the achievement of equality and advancement of human rights and freedoms
        
        Section 2
        
        the Constitution is the supreme law and all admin action inconsistent with it is invalid
        
        Chapter 2
        
        The Bill of Rights: protects a persons identified rights against violation and abuse of power
        
        Section 36
        
        general limitation clause which assist in identifying whether a limitation of a right is lawful
        
        Section 39
        
        contains the rules for the interpretation of the Bill of Rights
  - - - Provide for the review of admin action by a court
      - Impose a duty on the state to give effect to sec 33 rights (right to JUST admin action)
      - Promote an efficient administration and good governance
      - Create a culture of accountability, openness and transparency
  - - - South African Sports Commission Act 109 of 1998
      - The Employment of Educators Act of 1998
      - The Refugees Act of 1998
    - - administrator’s authority & power to take action must be authorised by law
      - The administrator is the public functionary or institution performing admin action
      - The administrator is always
        
        Clothed with state authority
        
        Has legal power of discretion
      - The administrator derives the authority to take action mainly from legislation
      - The empowering Act often prescribes the status, qualification, attributes, experience & knowledge required from an administrator
  - - - facilitate the quick and efficient division of labour within the administration
    - - UNLESS it meets the following requirements
      - GENERAL RULE
        
        Delegatus delegare non potest
        
        person to whom a power is granted may not delegate to another
        
        original administrator must perform the function personally
        
        Sub-delegation
        
        when the original legislation empowers an administrator to further delegate
        
        RULES when DELEGATION is PERMITTED
        
        administrator is authorised to perform a particular action and this entails the exercise of discretion, the task concerned may not be delegated
        
        unless it is authorised by statute
        
        administrator who exercises a discretionary power and makes a decision is not prevented from instructing a subordinate administrator merely to implement
        
        administrator must apply his/her mind to the matter when exercising discretion
        
        administrator may appoint a fact-finding committee to assist, provided the actual discretion is ultimately exercised by the administrator
    - - Deconcentration
        
        takes place within department of state, normally utilizing an internal hierarchical system (pyramid)
      - Decentralisation
        
        senior functionary transfers certain powers & activities to an independent organ or body which carries out these powers & functions entirely in its own name
- - - - review of an action
        
        on the ground of unreasonableness may be seen as interfering with the decisions of the administration
        
        which is in conflict with the separation of powers
    - - requirements of
        basic fairness and the right to just admin action as provided in section 33 of the Constitution
        
        courts ensure
        
        correct procedure was followed
        
        discretion has been exercised properly within the confines of the law
  - - - right to fair, just and reasonable admin action
    - - the right to institute a JUDICIAL REVIEW
- - - - Giving the person opportunity to present his case before a decision is made
      - Allowing the person to counter adverse allegations
      - Being impartial and unbiased
      - Ensure individual is treated fairly and justly
    - - audi alteram partem rule
        
        To HEAR the OTHER SIDE
      - nemo iudex in sua causa rule
        
        You CANNOT be a JUDGE of your OWN CASE
  - - - deals with procedurally fair admin action affecting ANY person
        
        Section 3(2)(a):- fair administrative procedure depends on the circumstances of each case
        
        SeCTION 3(2)(b):
        
        mandatory or minimum requirements for procedural fairness
        
        notice of the nature and purpose of the proposed admin action
        
        Reasonable opportunity to make representations
        
        clear statement of the admin action
        
        Adequate notice of any right of review or internal appeal
        
        notice of the right to request reasons i.t.o. section 5
        
        Section 3(3):
        
        discretionary requirements for procedural fairness
        
        Obtain assistance and, in serious / complex cases, legal representation
        
        Present and dispute information and arguments
        
        Appear in person
    - - deals with procedurally fair admin action affecting the PUBLIC
        
        will find application when admin action has
        
        A general impact
        
        The impact has significant public effect
        
        Constitutional, statutory, or common-law rights of members of the public are at issue
      - rights of the public are involved
        
        To hold a public enquiry
        
        follow a notice and comment procedure
        
        adopt a combination of the two
        
        Where the administrator is empowered by an empowering provision to follow a procedure which is fair but different, to follow that procedure
        
        To adopt another appropriate procedure
  - - - PAJA on written reasons
    - - Everyone whose rights have been adversely affected by admin action has the right to be given written reasons for the decision”
    - - right to written reasons is dependent on the impact a particular decision has on the affected person