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Is this ADMINISTRATIVE ACTION?, Authority, Jurisdiction, AA Pathways, Was…

- - - - Administration is that part of government concerned with implementation.
      - Nature/ Source of the power; Subject Matter; Exercise of Public Duty; Public Policy matters vs implementation of legislation.
      - Overall Constitutional Purpose
      - Looking not too much to the functionary but to the function – SARFU
    - - BROAD (outside of Legislative framework – wide discretion) vs NARROW (constrained, dictated by legislation) Sense of policy formulation
      - Just because there is a political decision does not mean it is not AA
      - Constraints on exercise and source of power
    - - The fact that the functionary performs Ito legislation does not necessitate AA
      - SOURCE ; CONSTRAINTS ; LEVEL OF DISCRETION ; IS IT APPROPRIATE FOR COURT TO INTERFERE
  - - - deliberative electoral body – accountable to the electorate
      - Subject to POL
    - - Promulgation is somewhere between AA and Creating but.... still sub to POL
    - - NEW CLICKS
        
        Issue undecided
        
        Sachs: Applies ito INDIVIDUALS not masses; not aimed at legislative acts of the administration; not focussed on way laws are made; difference of emphasis rather than kind
        
        Chaskalson purpose: coherent and overarching system, of reviewing administration – making regs is an important part of public administration; applies to making regulations Ito empowering legislation should be subject to controls in s33; interprets decision inclusive because of "any"
        
        Ngcobo: "in this case"; substance over form; avoid classification approach; "nature and effect of the power"
        
        Moseneke: doesn't decide
        
        PenfoldReasoning – a legislative act by a legislative body or a judicial act by a judicial official are excluded. IF the processes under which they are made subject to deliberative scrutiny this is in accordance to separation of powers doctrine (Penfold).
      - ESAU
        
        Rule of law always applies
        
        SoP: No untrammelled discretion
        
        Applies Cable City which misinterprets New Clicks
- - - - Greys Marine – capacity to affect
        
        Two qualifications working in TANDEM
        
        Joseph Adversely – Efficiency informs content
  - - - Linked to fairness and variability
- - - - (1) Authority
        
        JSC v Premier Western Cape
        
        Properly Appointed; Qualified; Constituted
        
        PAJA – 6(2)(a)(i)(ii): administrator not authorised; delegation not authorised
        
        PAJA – 6(2)(f)(i): action itself contravenes law or not authorised
        
        NO Authority vs SOME Authority
        
        KYALAMI
        
        No specific legislation but Private law right and Public law duty
        
        There IS authority somewhere but not in provision relied on
        
        HARRIS
        
        Deliberate or Inadvertent
        
        Does it lead to irrationality; Does it cause a material issue; Was there a failure to apply the mind?
        
        Unlawful Delegation
        
        Legislature
        
        EXECUTIVE COUNCIL WESTERN CAPE
        
        Cannot delegate a plenary power
        
        WIDE powers NO limitations on use.
        
        DAWOOD
        
        Affects a right/ No discretion s36 analysis – relevant factors too numerous - exception.
        
        SHUTTLEWORTH
        
        Wide powers balanced by exceptional circumstances.
        
        Sub-Del by Administrator
        
        Express
        
        Implied
        
        Presumption against. FACTORS
        
        NATURE: mechanical/Narrow
        IMPACT: consequences/ rights
        EXTENT: control/guidelines
        NECESSITY: efficiency/ possibility
        
        Express Delegability of one power may imply same for another
        
        Dictation/ Referral
        
        Ostensibly takes decision but another person instructed
        
        SCENEMATIC FOURTEEN
        
        OFFICIAL: aware of reasons/ not necessary to read every application (overly pedantic – efficient)
        
        Variation functus
        
        Final (communicated) decision irrevocable – except by court or if express-implied(rarely) power given
        
        KIRLAND
        
        Can't just revoke, No self help, uncertainty would ensue and court's role undermined
      - (2) Jurisdiction
        
        Misconstruing Powers in Legislation – Issue: Whose interpretation is to be preferred the court or the administrator?
        
        Mistake of Law – Interpretation of statute (ISSUE: review/appeal barrier)
        
        HIRA
        
        ALL MATERIAL NO MORE DISCTINCTION
        
        Material: error effects outcome
        
        US: Reasonableness/ SA: Correctness
        
        Longbeach Homeowners
        
        Interpretation of Statute: Court disagrees with minister
        
        PAJA 6(2)(d) materially influenced
        
        Mistake of Fact: decision does not comply with conditions or procedure
        
        PAJA 6(2)(b) mandatory material procedure
        
        Jurisdictional
        
        Substantive
        
        "IF x THEN y" phrasing..
        
        WALELE
        
        1 more item...
        
        Procedural
        
        ACDP
        
        Purposive > New approach: Substantial compliance with the purpose?
        
        ALLPAY
        
        Not the same as asking if compliance would lead to different result
        
        Non-Jurisdictional
        
        PEPCOR
        
        Recognised as Material
        
        PAJA mentioned in obiter s6(2)(e)(iii)
        
        Factors: Public interest/potential prejudice
        
        Power to make decision not affected by mistake
        
        DUMANI
        
        Uncontentious and objectively verifiable
      - FEDSURE
        
        ALL AA MUST BE AUTHORISED BY LAW
      - (3) Abuse of Discretion
        
        Ulterior Purpose or Motive
        
        PAJA s6(2)(e)(ii): if taken for ulterior purpose OR motive
        
        UCT v MoEd
        
        Motive was to bring about objects not given scope for in the empowering act. Substantially outweighed any motive inter vires
        
        Bad Faith
        
        PAJA s6(2)(e)(v) – reviewable if in bad faith
        
        Fraud/Dishonesty: conscious use of power
        
        Failure to Apply the Mind
        
        Failure to Act or Decide
        
        PAJA s6(2)(g) & s6(3): reviewable if failure to act on grounds of failure/duty/reasonable time
        
        Fuel Retailers 2007 (CC)
        
        DG did not consider factors to be part of their discretion and so did not take a decision – could also be seen as dictation
        
        OFFIT 2010 SCA
        
        no remedy for indecisiveness on future policy issues
        
        Relevant/irrelevant considerations
        
        PAJA 6(2)(e)(iii): relevant or irrevant considerations lead to action
        
        Considerations from empowering provision – issue of SOP
        
        SCALABRINI 2018 (CC)
        
        No list of factors in provision but court used own considerations and rationality – How far can this go?
        
        CLAIRISON'S
        
        weight is generally for the functionary to determine
        
        Fettering of Discretion
        
        By Policy
        
        KEMP 2005 (SCA)
        
        Used discretion to apply policy in that D thought it appropriate
        
        1 more item...
        
        BATO STAR 2004 (CC)
        
        Sometimes it is desirable for decision maker to apply policy as is – large number of applications
        
        By Contract
        
        INCOMPATIBILITY TEST: is the contract compatible with the purpose of the discretion?
        
        FACTORS: mandate to contract; importance of powers; likelihood of fettering?
        
        ISSUE – Compensation under PAJA?
        
        PAJA 6(2)(i): Catch-all ...Otherwise Unlawful...
        
        Constraint of self
        
        By Promise
        
        KZN Joint Liaison
        
        4th Way... Unconscionable State Conduct – Reliance; accountability; rationality
        
        Administrators should not bind themselves by making promises
        
        Arbitrary decisions
        
        PAJA s6(2)(e)(vi):arbitrary or capricious
        
        Difference between Arbitrary and Irrational
        
        Justification vs purpose
        
        Otherwise Unconstitutional / Unlawful
        
        PAJA s6(2)(i): Catch-all
    - - Rationality
        
        +
        
        Proportionality
        
        means/ends
        
        PAJA s6(2)(f)(ii):not connected to: (aa) Purpose of decision; (bb) Purpose of provision; (cc) information admin had; (dd) reasons given
        
        NERSA 2019 (CC)
        
        Cannot separate process from substance rationality
        
        Common Law – Ulterior; Failure to apply mind; Arbitrary – Overlap
        
        MEDIRITE 2015(SCA)
        
        Bad (no) reasons means cannot determine their connection to goal... Proportionality factors: Sledgehammer/nut. Balance of effects; Less restrictive means?; Suitability (appropriateness).
      - NEW CLICKS
        
        Int Conny "Justifiable" = Rational/Reasonable
      - PAJA s6(2)(h) unreasonable
        
        BATOSTAR
        
        "Could" reach. not only gross unreasonableness.
        
        FACTORS:
        
        Nature of decision
        
        ID and expertise of maker
        
        factors relevant to decision
        
        reasons given
        
        competing interests
        
        impact of decision
        
        review/appeal distinction is still important SoP
        
        ISSUES: deference... is it in judicial review? Greater effect on right the more likely court is to intervene. Need to balance respect for expertise and note when decisions are unreasonable.
- - - - Decisions concerning Forrests – prohibition of destruction (interpretation by minister)
- - - - Bargaining Council decision: Looking for governmental in nature specifically need for public interest
    - - Unequal bargaining power – greater need for fairness
- - - - ONLY A FACTOR – Allpay
  - - - Relationship of coercion.
      - Impact of the decision on the public
      - Source of the power.
      - Whether there is a need for the power to be exercised in the public interest.
- - - - Pharmaceutical
        
        All exercises must be rational... minimum threshold
      - Albutt
        
        Both decision and means must be rationally related to objective
      - Simelane
        
        Process as a WHOLE if a particular step taints it.
      - Relation to PAJA
        
        Simelane – the same
        Xulu – different
        NERSA – the same
- - - - yes the gov has rights Ito the contract BUT AL still undergirds those rights.
- - - - Significant and not trivial effect
- - - - Do we believe PAJA is totally removed from OoS for self review, regardless of public interest?
        
        Yes
        
        Principle of Legality
        
        No
        
        PAJA applies
    - - No PAJA, instead you can use the Principle of Legality (and avoid the 180 day time limit) (Gijima)