ADL2601 EXAM PACK 2019.

ADL2601 EXAM PACK 2019. ADL2601 - Administrative Law. Two examples of Acts of Parliament that complement the provisions of the Constitution and are crucial to Administrative law as well, are PAJA and … (a) the Promotion of Access to Information Act 2 of 2000 (PAIA). (b) the National Building Regulations and Building Standards Act 103 of 1977. (c) the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). (d) the Housing Act 107 of 1997. 2.1.3 Res iudicata means that… (a) all administrators must act reasonably. (b) court decisions are not of an administrative nature. 4 Instagram @ llb_tutor Downloaded by: sikonp | Distribution of this document is illegal S - The study-notes marketplace (c) the matter has been dealt with and cannot be reconsidered by the same body, but only by a higher-ranking body. (d) no person may be a judge in his/her own case. 2.1.4 Ubuntu can be regarded as the African view of life and the world. Which one of following is the way in which this term can be defined/describe? (a) African Humanism (b) African due process (c) African democracy (d) African constitutionalism 2.1.5 Which one of the following is NOT a binding source of administrative law? (a) The Constitution of the Republic of South Africa, 1996 (b) Case law (c) Legislation (d) Foreign law 2.2 Mention the three classes of administrative action and the distinctive characteristics of each. (6) 5 Instagram @ llb_tutor Downloaded by: sikonp | Distribution of this document is illegal S - The study-notes marketplace Legislative administrative acts are the most easily recognised action of the administration. They have a specific form and are published in an official document, such as the Government Gazette. Specific rules apply to the adoption, repeal or amendment of all legislative administrative acts. The power to delegate a legislative power exists only when there is express statutory authority for this. A judicial administrative act is action that is almost like that of a court. This explains its characterisation as a “quasi- judicial” act. Like the courts, administrators interpret and apply legal rules to disputes in concrete situations. Administrative adjudication is usually undertaken by specialist bodies, known as administrative tribunals. Currently there are not many examples of such administrative tribunals, but the Films and Publications Appeal Board provides such an example. An administrative act refers to the “true” administrative act, where individual administrative-law relationships are created or varied. Administrative acts relate to the day- to-day business of implementing and applying policy, legislation or an adjudicative decision. In short, administrative acts include literally every possible aspect of government activity “granting a licence, promoting an employee, stamping a passport, arresting a suspect, paying out a pension” (Hoexter 2012:55). 2.3 Explain the concept of just administrative action with reference to the relevant provision in the Constitution. (7) Section 33 reads as follows: 33(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 (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration. Just administrative action is aimed at preventing organs of state, public institutions and functionaries, as well as natural and juristic persons – administrators – from abusing or misusing their power in their dealings with an individual who is in a subordinate position. Hence the constitutional demand that administrative action must be performed lawfully, reasonably and in a procedurally fair manner; and from the perspective of the individual, just administrative action is directed at protecting him or her in any dealings with administrators. It guarantees the individual just treatment/justice, fairness and reasonableness in his or her relationship and dealings with administrators. 2.4 Briefly define legality. Also explain this principle in the constitutional framework. (7) Legality is a principle used by the courts to determine whether administrative action was not only authorised by law but also performed in accordance with the prescripts laid down by the law. The public administration must serve and promote the public interest, protect and respect fundamental/human rights. Downloaded by: sikonp | Distribution of this document is illegal S - The study-notes marketplace The Constitution is the supreme law of the country and is elevated above all state legislation. Section 2 of the Constitution provides that any law or conduct that is not in line with the Constitution may be declared invalid by the court. Fedsure Life Assurance LTD v Greater Johannesburg 1999 (1) SA 374 (CC): the executive “may exercise no power and perform no function beyond that conferred upon them by law.” Section 8 of the Constitution provides that the Bill of Rights binds the executive authority – state administration in all spheres of government – and all organs of state. This means that organs of state and individuals exercising public power are bound by the law and not elevated above it. QUESTION 3 3.1 Briefly explain the rule against delegation. (5) In Foster v Chairman, Commission for Administration 1991 4 SA 403 (C) the rule against delegation was explained as follows: “It is a trite principle of our law that where a power is entrusted to a person to exercise his own individual judgment and discretion, it is not competent for him to delegate such power unless he has been empowered to do so expressly or by necessary implication by the empowering statute.” This rule expresses the idea that the administrator who has authority to take administrative action must exercise that authority himself or herself. The general rule is that where a discretionary power has been granted to a particular functionary because of his or her specific qualifications, knowledge or expertise, the exercise of this discretion cannot be delegated to another functionary or institution. The original administrator must perform the function personally. After all, if the administrator may freely transfer or delegate his or her powers to somebody else, it would undermine the requirement that powers must be exercised by an administrator with a particular qualification, status, knowledge or responsibility. The key judgment dealing with delegation is the case of Shidiack v Union Government 1912 AD 642. Innes ACJ explained delegation thus: “Where the legislature places upon any official the responsibility of exercising a discretion which the nature of the subject-matter and the language of the section show can only be properly exercised in a judicial spirit, then that responsibility cannot be vicariously discharged. The persons concerned have a right to demand the judgment of the specially selected officer.” 3.2 Explain the rules that apply when delegation of powers is permitted. (4) (1) If the administrator is authorised to perform a particular action and this entails the exercise of discretion, the task concerned may not be delegated unless the delegation is authorised by statute. (2) An administrator who exercises a discretionary power and makes a decision is not prevented from instructing a subordinate administrator merely to implement the decision. This does not constitute an unauthorised delegation, as the superior administrator merely issues a mandate or instruction. Downloaded by: sikonp | Distribution of this document is illegal S - The study-notes marketplace (3) The rule against further delegation also implies that an administrator may not, in the exercise of his or her discretion, put him or herself in the situation of having to accept directions or orders/commands from another body. In other words, he or she must apply his or her own mind to the matter. (4) An administrator may, without contravening the rule against delegation, appoint a fact-finding committee to assist him or her, provided the actual discretion is ultimately exercised by the proper authority. 3.3 What are the three forms of delegation? (3) - Mandate/instruction - Decentralisation - Deconcentration 3.4 PAJA gives effect to the right to reasonable administrative action. The Constitutional Court has given content to the relevant provision in PAJA that deals with reasonableness. Suppose the decision taken by the City of Durban constitutes an administrative decision, does this decision comply with the reasonableness requirement as captured in the Constitution? Substantiate your answer with reference to PAJA and case law. DO NOT explain the right to written reasons. (13) The Constitutional Court had the opportunity to pronounce on the meaning and content of section 6(2)(h) in the landmark decision of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs. This decision dealt with the allocation of fishing quotas by the Chief Director (responsible for marine management) in the Department of Environmental Affairs and Tourism. The appellant challenged the Chief Director’s allocation of his (the appellant’s) fishing quota in terms of the provisions of the Marine Living Resources Act 18 of 1998 (MLRA). One of the questions before the Court related to the alleged unreasonableness of the Chief Director’s action. The Court, per O’Regan J acknowledged the pre-Constitutional jurisprudence which failed to establish reasonableness or rationality as a free-standing ground of review. O’Regan J referred further to the Wednesbury decision and held that the PAJA test draws directly on the language of that decision. However, she emphasised the importance of reading section 6(2)(h) in line with the wording of section 33(1) of the Constitution. She held that even if it may be thought that the language of section 6(2)(h), if taken literally, might set a standard such that a decision would rarely if ever be found unreasonable, that is not the proper constitutional meaning which should be attached to the subsection. The subsection must be construed consistently with the Constitution and in particular section 33 which requires a simple test, namely, that an administrative decision will be reviewable if, in Lord Cooke’s words [Lord Cooke in R v Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd [1999] 1 All ER 129 (HL) at 157], it is one that a reasonable decision-maker could not reach. The simple test is therefore one that states that administrative action will be reviewable, if it is one that a reasonable decision-maker could not reach. What will constitute a reasonable decision will depend on the circumstances of each case as it is context-based. O’Regan J then proceeded to enumerate the factors relevant to determining whether a decision is reasonable. They include (a) the nature of the decision; (b) the identity and expertise of the decision-maker; (c) the range of factors relevant to the decision; (d) the reasons given for the decision; (e) the nature of the competing interests involved; and (f) the impact of the decision on the lives and well-being of those affected. Downloaded by: sikonp | Distribution of this document is illegal S - The study-notes marketplace One could argue that the municipality’s decision was not reasonable. No reasons were given for the decision, Mr McDonald was effectively prohibited from undertaking building works, which has a major impact on his business. QUESTION 4 4.1 Explain the common law rules of natural justice? Refer to relevant case to explain these rules. (12) The audi alteram partem rule, as interpreted and developed by our courts, consists of the following: (1) The individual must be given an opportunity to be heard on the matter (ie the opportunity to put his or her case). (2) The individual must be informed of considerations which count against him or her. (3) Reasons must be given by the administrator for any decisions taken. Over and above the three-legged audi alteram partem rule, the rules of natural justice embrace a further rule, namely nemo iudex in sua causa (literally: “no one may be a judge in his or her own cause”). In other words, the decision-maker must be, and must be reasonably perceived to be, impartial or unbiased. This is known as the rule against bias. The most common examples of bias are the following: (a) the presence of pecuniary/financial interest; and (b) the presence of personal interest. (a) A pecuniary (financial) interest In Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W), the chairman of the board responsible for the granting or refusal of transport licences (the permits), was at the same time the director of three large taxi companies. One of these companies opposed the application for such permits. It was apparent that the company, a large taxi company in Johannesburg, would benefit from the refusal of applications. Despite this the chairman refused to stand back and participated in the hearing. The court found that the reasonable person would realise that the chairman was indeed biased because of his financial/pecuniary interest in the taxi company, and also because that company was one of the objectors. (b) Personal interest In Liebenberg v Brakpan Liquor Licensing Board 1944 WLD 52, the mayor of the town insisted on being present when liquor licence applications were being heard, despite the fact that one of the applicants was his brother. The licence was granted to the brother, and despite the fact that the other members submitted affidavits to the effect that they had not.