ADL2601 EXAM PACK. PAST PAPERS & SOLUTIONS.

ADL2601 EXAM PACK. ADL2601 - Administrative Law. Discuss the concept of delegare delegatus non potest (the rule against delegation). Mention the various kinds of delegation and indicate whether the rule is correctly applied in the set of facts. (10) - 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. - The key judgment dealing with delegation is the case of Shidiack v Union - Government 1912 AD 642. - However an executive organ of state in any sphere of government may delegate any power or function that is to be exercised or performed in terms of legislation, to any other executive organ of state, - provided the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed; email: Tel: +39/+01 Cell: +03 G.R. Tutorials - an executive organ of state in any sphere of government may also exercise any power or perform any function for any other executive organ of state on an agency or delegation basis. - There are different kinds of delegation: mandate, deconcentration and decentralization. - Deconcentration of activities is a type of delegation which takes place within departments of state. - Decentralisation of administrative power is characterised by the senior functionary transferring certain powers and activities to an independent organ or body ``which carries out these powers and functions entirely in its own name''. - The simplest form of delegation occurs in the form of a mandate that is an instruction or command. The senior administrator makes a decision and then hands it over to another administrator to implement or execute. - The rule of delegation is applied correctly, in the scenario we witness decentralization of administrative power by the principal to the disciplinary committee, the delegation was also in accordance with legislation (Higher Education Act ) 2c) Suppose the lecturer decided to reconsider the expulsion, would she have been functus officio ( unable to deal with the matter because it had been finally dealt with)? (5) - NO, she would not have been functus officio, - The actions of the lecturer falls under purely administrative actions, - Onerous/burdensome administrative acts place a duty on the individual, or - prohibit an individual from doing something or refuse to grant him or her something - If the official decides that the decision, though valid, may be a bit harsh, or if policy changes, and so on, - the decision may be changed at any stage. - The reason for this rule is that the administration must be given an opportunity of correcting its own mistakes. Question 3 email: Tel: +39/+01 Cell: +03 G.R. Tutorials 3a) Discuss fully the requirements that should be met in terms of section 3 PAJA for the decision to comply with fair procedure. ( Please confine yourself to the legislative requirements ) (15) - PAJA specifically states that a fair administrative procedure depends on the circumstances of each case. - The administrator must give the affected person referred to in subsection (1)(PAJA) : adequate notice of the nature and purpose of the proposed administrative action - reasonable opportunity to make representations - a clear statement of the administrative action - adequate notice of any right of review or internal appeal - adequate notice of the right to request reasons in terms of section 5 - it is important to remember that the aim of the mandatory - elements is to provide the affected person with adequate notice and a reasonable opportunity to make representations before a decision is taken. - Note further that the use of the words ``adequate'' and ``reasonable'' leave the administrator with some flexibility to decide on the precise content of the notice and the opportunity given to make representations. - At the very least though affected persons must be provided with sufficient information in order for them to ``know the case they have to meet and so that their opportunity to make representations is a meaningful one'' - `a clear statement of the administrative action'' must be given to the affected person, relates in all probability to administrative action that already has been taken. - In other words, ``after a course of action has been decided on'' - The affected person should ``at least be able to tell from the statement what has been decided, when, by whom, and on what legal and factual basis'' 3b) Why was Mr. Swindle entitled to reasons for his expulsion? Discuss fully.(10) email: Tel: +39/+01 Cell: +03 G.R. Tutorials - According to Constitutional law everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for the decision. - the need to give reasons is part of the common law audi alteram partem rule under certain circumstances - Reasons show how the administrative body functioned when it took the decision and in - particular how the body performed the action and whether that body acted lawfully or unlawfully, rationally or arbitrarily, reasonably or unreasonably. - Requiring the administrator to give reasons for his decision is a safeguard against any arbitrary or unreasonable administrative decision making. - the Constitution insists that only a person whose rights have been `` adversely affected'' by administrative action has a right to written reasons and in this case it is Mr Swindle Question 4 4a) Would the following persons have locus standi in terms of section 38 of the Constitution? Substantiate your answer. (6) i) Mr. Con Swindle - Yes, Mr. Con Swinldle has locus standi according sec 38 (a) - ii) The Students’ Representative Council - Yes, The Students’ Representative Council has locus standi according to sec 38 (e) iii) Mr. Con Swindle’ neighbor - No, since Mr. Con Swindle can act in his own name (sec 38 (b) ) 4b) Why should Mr. Swindle first exhaust internal remedies and what are the steps he should take? (8) - The basic rule is that all internal channels should be used before a court of law is approached. - He should exhaust the internal remedies because: email: Tel: +39/+01 Cell: +03 G.R. Tutorials • It is unreasonable for a person to rush to court before his or her internal remedies have been exhausted. • The internal remedies are usually cheaper and more expedient/easier to use. • It helps to prevent the courts being overloaded with cases that may be more efficiently dealt with by the administration itself. 4c) What is the difference between statutory appeal and judicial law review? (6) STATUTORY APPEA : - the courts may hear appeals only where this is provided for by statute/legislation. - An appeal may be lodged only against a final decision or final order, not against a provisional or interlocutory order - The provisions governing the power of the courts to examine administrative action on appeal, the requirements for appeal, the time within which the appeal must be noted, and so on, are laid down in the empowering statute. JUDICIAL REVIEW: - A review scrutinises the legality/validity of the decision and whether it was defective and therefore not conforming to the requirements for validity/legality. - a review may go beyond the record to establish whether any irregularities were present, but may NOT go into the merits - A review scrutinises the process of decision making ± whether the correct process/procedure was followed or whether any irregularity or excess of power was present. 4d) Assuming all internal remedies’ have been exhausted, which judicial rememdy(ies) would you advise Mr. Swindle to pursue? Explain. (5) - I would advise Mr. Swindle to pursue judicial review. - ALL administrative decisions are subject to judicial review and The grounds of review of the legality of administrative action are : - the infringement or threatened infringement of a fundamental right listed in the Bill of Rights or - any challenge to the validity of administrative action, that is failure to email: Tel: +39/+01 Cell: +03 G.R. Tutorials comply with any of the requirements for valid administrative action which is evident in the set of facts through the lecturer expelling Mr. Swindle without following the procedures of the expulsion of a student. - A review scrutinises the legality/validity of the decision,whether it was defective and therefore not conforming to the requirements for validity or legality. Therefore in the set of facts review would look at how the decision to expel Mr. Swindle was reached. - Through review the process of decision making is looked at. ADL 2601 Mr. JL Bird is a prisoner serving a sentence of six years imprisonment for dealing in drugs. Assume that he qualifies for parole and that he has applied for parole However, his application of parole is summarily dismissed without any explanation. Vinnie Vengeance, a member of the parole board that considered Mr. Bird’s application, carries a longstanding grudge against Mr. Bird because he (Mr. Bird) assaulted Vengeance’s sister years ago. Mr. JL Bird contacts you, Advise him on the following and give well substantiated reasons for all your answers