STUDY PACK ADL2601

STUDY PACK ADL2601 Legislation - The primary source of administrative power as it adds flesh to the bones of principles, norms and values - expressed in the Constitution. 1. Original legislation: - Passed by parliament in the national sphere of government, such as a. PAJA b. The Promotion of Access to Information Act 2 of 2000 (PAIA) - Also passed by the 9 provincial legislatures in the provincial sphere of government i.t.o. section 104 read with Schedules 4 & 5 of the Constitution, for example a. The various Schools Education Acts passed by the 9 provinces – e.g. Gauteng Schools Education Act 6 of 1995 - Also passed by elected local governments, the municipal councils, in the local sphere of government. A local government has the power to enact by-laws that do not conflict with the Constitution, any parliamentary statute or any applicable provincial statute i.t.o. section 156(2), for example a. Judgement in Fedsure Life Insurance Ltd v Greater Johannesburg Transitional Metro Council CONTACT: 9 10 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 10 2. Delegated legislation: - It must be enacted i.t.o. original legislation as it is subordinate and must be authorised by the original, enabling legislation - Such delegated legislation must not conflict with the provisions of the enabling Act - Regulation through delegated legislation mostly occurs when matters of a specialised or technical nature - Passed by functionaries who are empowered in the national governmental sphere, for example a. Proclamations of the President (in his executive capacity) such as to declare the date of commencement of a particular statute b. Regulations made by ministers (the members of the cabinet in the national executive) i.t.o. an enabling statute - Regulations are issued in the provincial sphere of government (example regulations issued i.t.o. the School Education Act 6 of 1995) - Regulations are issued in the local sphere of government (example regulations i.t.o. relevant by-laws for regulation of traffic in a particular municipal area) 3. Case Law - Past judgements are binding on other courts in subsequent cases and may be referred to assist in controlling the exercise CONTACT: 9 11 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 11 of public power and the performance of public functions by organs of state 4. Common Law - The law not written up in South African legislation - Though not as important to admin law as is the above sources, it still may have influence, example a. The principle of ultra vires and b. The development of the rules of natural justice – now included in PAJA 5. Administrative practice/custom or usage - Custom is made up of unwritten rules or practices, carried down through generations - PAJA includes “customary law” in the definition of “empowering provision” in section 1 - A custom must meet these criteria before it is recognized as such:  It must be reasonable  It must have exited over a long period  It must be generally recognised, accepted and observed by the community  The content of the custom must be certain and clear 6. International law CONTACT: 9 12 THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 12 - Regulates the relationship between states and/or international organisations and comprises mainly treaty and international usage. - Rarely utilised as a source of law in admin law practice