ADL2601 EXAM PACK.

ADL2601 EXAM PACK. ADL2601 - Administrative Law. Is administrative action in evidence in the set of facts? In your answer, you should give a full definition of the concept “administrative action” with reference to the provisions of the Promotion of Administrative Justice Act (PAJA) 3 of 2000. (12) Section 1 of PAJA defines "administrative action” as 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 © 2016Together We Pass. All rights reserved. pg. 3 (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. There are exceptions to the definition. These exceptions are, however, not applicable to the given set of facts. The decision to expropriate Mr Nkosi’s property amounts to administrative action because it complies with the definition in that it involves a decision by an organ of state (the Minister, the appointed person in the Department of Public Works) exercising a public power or performing a public function in terms of any legislation which has adversely affected the rights of a person (Mr Nkosi) and which appears to have had a direct external legal effect. QUESTION 2 2.1 Answer the following questions. Each question is provided with a number of options as possible answers. Only one option/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. (The correct answers are marked in bold.) 2.1.1 The Minister’s decision in the set of facts is an example of a… (a) true administrative act. (b) judicial administrative act. (c) legislative administrative act. (d) just administrative act. 2.1.2 Just administrative action is defined in section 33 of the Constitution. The term “…” can also be used to refer to just administrative action. (a) proportionality. (b) applying one’s mind to the matter. (c) reasonableness. (d) fairness. 2.1.3 Consider the following statement: “Any administrator must act within the powers conferred on him or her by the empowering statute.” Which requirement in section 33 of the Constitution resonates this statement? (a) Procedural fairness (b) Reasonableness (c) Lawfulness (d) Impartiality 2.1.4 The general rule regarding the delegation of powers is that the administrator who has authority to take administrative action must exercise that authority himself or herself. This principle was confirmed in the case of … where Innes ACJ stated the following: © 2016Together We Pass. All rights reserved. pg. 4 “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.” (a) University of Pretoria v Minister of Education 1948 4 SA 79 (T) (b) SA Freight Consolidators (Pty) Ltd v Chairman, National Transport Commission 1987 4 SA 155 (W) (c) Foster v Chairman, Commission for Administration 1991 4 SA 403 (C) (d) Shidiack v Union Government 1912 AD 642 © 2016Together We Pass. All rights reserved. pg. 5 2.2 Suppose the Minister’s reason for the expropriation was that the Department of Public Works required Mr Nkosi’s property in order to build a new house for the newly elected President of South Africa. Mention the three elements of “proportionality” and explain whether the Minister’s decision to expropriate Mr Nkosi’s property is reasonable (or not) with reference to these elements. (8) The three elements are: suitability, necessity and weighing up advantages and disadvantages. In accordance with the requirement of suitability, when exercising his or her powers, the administrator must choose only those means (from the variety of means available) that are most appropriate for achieving the desired end. In other words, there must be a rational connection between the end and the means. In the set of facts it is not clear whether the state really needs Mr Nkosi’s property in order to build a new house for the President. Necessity means that the administrator must take only such steps as are necessary if any prejudice to an individual is involved. In other words, the administrator must choose the action that causes least harm to those who will be affected by the measure. Mr Nkosi will lose his whole farm, it is not clear whether it is really necessary for the state to take his whole farm in order to build a house for the president. Finally, weighing up the advantages and disadvantages is a very important requirement in that it requires weighing up the advantages and disadvantages, and considering the injury to the general public or the individual. The method or means must not be out of proportion to the advantages – the ends to the community. The disadvantage to Mr Nkosi is severe, he will lose his entire farm, while the state can build the house elsewhere. © 2016Together We Pass. All rights reserved. pg. 6 2.3 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. Do you think Mr Nkosi’s right to reasonable administrative action was infringed? Substantiate your answer with reference to PAJA and case law. (12) PAJA gives effect to the right to reasonable administrative action by giving an individual the capacity under section 6(1) “to institute proceedings in a court or a tribunal for the judicial review of an administrative action” on the ground that: • “the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have exercised the power or performed the function” (section 6(2)(h)) The CC gave meaning to the content of sec 6(2)(h) in the case of Bato Star Fishing (Pty) Ltd v Minister of Environment Affairs 2004 4 SA 490. O’Regan J emphasised the importance of reading section 6(2)(h) in line with the wording of section 33(1) of the Constitution. According to O’Regan J, 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 QUESTION 3 3.1 Did the Minister comply with the mandatory requirements for procedural fairness? Explain the relevant provision in PAJA to substantiate your answer. (8) Section 3(2) (b) of PAJA lists the mandatory requirements: In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) (i) Adequate notice of the nature and purpose of the proposed administrative action; (ii) a reasonable opportunity to make representations; (iii) a clear statement of the administrative action; (iv) adequate notice of any right of review or internal appeal, where applicable; and (v) adequate notice of the right to request reasons in terms of section 5 The Minister in the given set of facts only informed Mr Nkosi of the administrative action, ie that there will be an expropriation. The Minister did not comply with any of the other requirements. 3.2 If the Minister decides to depart from the requirements of fair procedure, as required by PAJA, section 3(4)(b) of PAJA lists certain factors to be considered to determine whether this decision to depart is reasonable and justifiable. List the factors as prescribed by section 3(4)(b). (5) - the objects of the empowering provision - the nature and purpose of and the need to take administrative action © 2016Together We Pass. All rights reserved. pg. 7 - the likely effect of the administrative action reviewable if it is one that a reasonable decision-maker could not reach. (also referred to in the study guide as the “simple” test) What will constitute a reasonable decision will depend on the circumstances of each case as it is context-based. O’Regan J proceeded to enumerate the factors relevant to determining whether a decision is reasonable. They include: • the nature of the decision • the identity and expertise of the decision-maker • the range of factors relevant to the decision • the reasons given for the decision • the nature of the competing interests involved • the impact of the decision on the lives and well-being of those affected In this scenario one could argue that the Minister’s decision was not reasonable, since no reasons for the decision were given. The impact of decision also has a devastating effect on Mr Nkosi. The nature of the interests involved: Mr Nkosi’s house (personal property and livelihood), the building of a house for the President (no reason why it should be there). The impact: Mr Nkosi will lose his entire business. © 2016Together We Pass. All rights reserved. pg. 8 3.3 Suppose Mr Nkosi approached the Department of Public works and requested reasons for the Minister’s decision. Would the Minister be obliged to provide Mr Nkosi with reasons? Substantiate your answer with reference to the relevant provisions in PAJA. (5) Yes. Section 5(1) requires the provision of written reasons at the request of any person whose rights have been materially and adversely affected by any administrative action and who has not been given reasons for the action. Section 5(1): Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action.