ADL2601_ Administrative Law_ Latest Exam Revision Notes.

ADL2601_ Administrative Law_ Latest Exam Revision Notes. what is administrative law? Administrative law is the sum total of legal rules that grant people, or bodies in authority, the power to take action; prescribe the procedures to be followed when taking such action; and ensure that such action is within the boundaries of the law. It also provides for control over such action. State authority is the power exercised by an organ of state or natural or juristic person over another person or body in a subordinate or subservient position. The exercise of such state authority could affect the rights or interests of the last-mentioned. Administrative action is the conduct of functionaries and institutions (administrators) when exercising a public power or performing a public function in terms of any legislation. This conduct takes a variety of forms, but usually it is in the form of a “decision”' of the administrator. Study Unit 2 – The Admin Law relationship Define an administrative-law relationship, including the concepts of general and individual administrative-law relationships. An administrative relationship exists between two or more people where at least one of the subjects is a person or body clothed in state authority who is able to exercise that authority over a person or body in a subordinate position whose rights are affected by the action. It is an unequal relationship. In a general administrative-law relationship the legal rules governing the relationship between the parties apply to all the subjects in a particular group. It is created by, changed and terminated by legislation. An individual administrative-law relationship the rules apply personally and specifically between the parties. The relationship is created by individual administrative decisions and not affected by new legislative provisions. Study Unit 3 – The legalsubjects of the admin law relationship Definition of an organ of state Section 239 of the Constitution: ‘organ of state’ means – a) Any department of state or administration in the national, provincial or local sphere of government; or b) Any other functionary or institution i)Exercising a power or performing a function 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, but does not include a court or a judicial officer. 2 Compiled by Stacy Page 2 Organ of state in terms of s 239(a) refers to the functionaries and institutions forming part of the public administration. 1. In the national sphere this refers to: a. Departments of state or government departments, i.e. Department of Agriculture b. May refer to an entire department and/or to its functionaries c. Ministers & Deputy Ministers d. President & Deputy President 2. In the provincial sphere this refers to: a. Provincial departments of state b. Premiers of provinces c. Members of the Executive Councils (MECs) 3. In the local government sphere this refers to: a. Municipalities b. Municipal councils Organ of State in terms of s 239(b) Any functionary or institution that is not part of the public administration, but which either exercises power or performs functions in terms of the Constitution or a provincial constitution, or exercises public power or performs public functions in terms of legislation. The role of associations, clubs and other “private” organisations and voluntary organisations are non-statutory bodies which have traditionally had the common law of administrative laws applied to them because the relationship between management and members is analogous to that of an administrative law relationship. Study Unit 4 The sources of administrative law Binding (authoritative) sources - CCCLAI 1. The Constitution (The Constitution of the Republic of South Africa 108 of 1996) The Constitution is supreme and no other law may be in conflict with it: thus it is the most important and authoritative source of law in SA. 2. Legislation - Legislation gives effect to constitutional provisions a. Original legislation i. Passed by Parliament in the national sphere of government; ii. The nine provincial legislatures in the provincial sphere of government; iii. Elected local governments (municipal councils) in the local sphere of government b. Subordinate legislation - Passed in terms of the original/enabling/empowering legislation: thus it must not conflict with the provisions in the enabling statute. i. Passed by: functionaries in the national sphere of government; Proclamations of the President issued in terms of the empowering statute Regulations made by ministers in terms of an enabling statute . ii. Provincial sphere of government: e.g. regulations issued in terms of sphere of competency of provincial government e.g. education iii. Local sphere of government: Regulations in terms of relevant by-laws 3. Case law (judicial precedent) - Past judgments are binding on other courts in subsequent cases (stare decisis). 4. Common law - Many common-law rules are now included in legislation 5. Administrative practice (custom or usage) 6. International law Persuasive sources (BPSF) 3 Compiled by Stacy Page 3 1. Writings in books and journals expressing academic opinions 2. Policy documents such as Green and White Papers 3. Reports by “state institutions supporting constitutional democracy” such as reports of the Human Rights Commission 4. Foreign law (comparative law). Study Unit 5 Administrative action is; a) A decision, including a proposed decision, as well as the failure to take a decision b) of an administrative nature c) under an empowering provision d) By an organ of state or natural or juristic person when exercising public power or performing a public function e) That adversely affects the rights of any person f) Or has a direct, external legal effect g) That is not specifically excluded by the list of nine broad categories of exclusions mentioned in subparagraphs (aa)to (ii). Or alternatively it can be described as: - Any decision of an organ of state of an administrative nature made in terms of the prescriptions of empowering laws - Any decision of private persons when they exercise public power or perform public functions in terms of empowering laws. Administrative action as described in PAJA Administrative action means a decision taken or failure to take a decision by a)An organ of state in exercising a power in terms of the Constitution or a provincial constitution, or in exercising a public power or performing a public function in terms of any legislation; or b)A natural or juristic person which is not 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. The definition in PAJA includes a list of exceptions to this general definition. PAJA also defines “decision” as being of an administrative nature Action that does not qualify as administrative action The following does not qualify as administrative action: a) The executive powers or functions of the National Executive including; calling a national referendum in terms of an Act of Parliament; receiving and accrediting foreign diplomatic and consular representatives; appointing ambassadors; conferring honours; appointing commissions of inquiry b) The executive powers or functions of the Provincial Executive, c) The executive powers or functions of a municipal council; d) The legislative functions of Parliament, a provincial legislature or amunicipal council; e) The judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, and the judicial functions of a traditional leader under customary law or any other law; 4 Compiled by Stacy Page 4 f) A decision to institute or continue a prosecution; g) A decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law; h) Any decision taken, or failure to take a decision in terms of any provision of the promotion of Access to Information Act, 2000; or i) Any decision taken, or failure to take a decision in terms of section4(1) [of PAJA]; Three classes of administrative action; 1. Legislative administrative action: The making and issuing of delegated legislation when authorised to do so by enabling legislation. (FRRDA) a) Most easily recognised action - has a specific form and is published in an official document, such as the Government Gazette. b) General relationships are created/varied/ended by administrative legislative acts c) Specific requirements apply to the adoption, repeal or amendment of all legislative administrative acts d) The power to delegate a legislative power exists only when there is express statutory authority for this. e) Must be within the framework of the authority given by the enabling Act. 2. Judicial administrative action - action of an organ of state that is almost like that of the judicial authority in that legal rules are interpreted and applied to concrete situations. Examples of organs of state that perform a purely judicial function: Air pollution appeal board; the films and publications appeal board. 3. Administrative Acts – that is true admin acts relating to the day-to-day business of implementing and applying policy, legislation or an adjudicative decision. Discretionary acts offer the choice between alternatives but always needs to be made in accordance with the prescribed legal formalities which may be narrow or wide. When does administrative action take effect? Legislative administrative action - Affects an individual as soon as the regulation or proclamation has been promulgated and the stated date of commencement arrives. Judicial administrative action - Usually takes effect as soon as the particular judicial institution gives its decision or delivers its judgment. Purely administrative action - will take effect upon the decision becoming known, either by publication (in the Government Gazette) or by individual notification. Termination of the legal force of administrative action Legal force of administrative action is terminated by repeal, amendment, lapse of time, withdrawal of one of the subjects to the relationship or by court order. Legislative action - Where an individual has acquired rights as a result of the legislative action, the repeal or amendment does not affect these acquired rights. Repeal cannot also apply retrospectively. Judicial administrative acts - The administrative tribunal, such as the refugee appeal board, is functus officio once it has made its ruling, and it cannot vary or revoke the decision. The decision can only be altered, rescinded or upheld by a higher judicial body usually the High Court. Administrative acts - any invalid administrative acts (ie invalid decision) may be altered or withdrawn by the administrator. Valid onerous/burdensome administrative acts may be altered by the administrator. 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 such as a licence. Valid beneficial administrative acts may be altered by the authority only where the power to do so has been conferred expressly or by necessary implication. Functus officio: the organ of state cannot amend, repeal or alter its decision – i.e. discharged his or her or its official function and he or she or it cannot re-examine or change the decision afterwards. 5 Compiled by Stacy Page 5 Study Unit 6 - Requirements for valid administrative action When will administrative action be performed validly?- Administrative action is valid when the decision of the administrator/organ of state is authorised in law and all the requirements set by the law are met. In terms of section 33 (1) of the Constitution. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. In 33(2) - everyone whose rights have been adversely affected by administrative action hasthe right to be given written reasons Just administrative action is aimed at; Preventing organs of state, public institutions and functionaries, as well as natural and juristic persons and administrators ± from abusing or misusing their power in their dealings with an individual who is in a subordinate position. For the individual, it isdirected at protecting him or her in any dealings with administrators – just treatment/justice, fairness and reason S 195(1) Public administration must be governed by the ``democratic values and principles enshrined in the Constitution'', including the following: a) The promotion and maintenance of a high standard of professional ethics; b) The promotion of efficient, economic and effective use of resources; c) A development-oriented public administration; d) The provision of services impartially, fairly, equitably and without bias; e) A responsiveness to people's needs and the encouragement of the public to participate in policy-making; f) An accountable public administration; g) The fostering of transparency by providing the public with timely, accessible and accurate information; h) The cultivation of good human-resource management and career-development practices, to maximise human potential; i) A public administration which is broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve such broad representation. Just administrative action will ensure: - PDA / PVA 1. Increased participation by the public in the exercise of public functions 2. That the administration will weigh up their decisions against the values enshrined in the Constitution 3. Administrative accountability Other terms used to refer to just administrative action a) intra vires / ultra vires i. Ultra vires: “to act beyond one’s powers ii. Intra vires: “to act within one’s powers - it encapsulates all the requirements for valid administrative action as found in the requirements of section 33 of the Constitution - lawfulness, reasonableness/justifiability and procedural fairness as well as the requirements for valid administrative action as set out in the empowering legislation b) Administrative legality - Legality requires that any administrative action should be in accordance with ALL the requirements of the law. Legality should therefore be regarded as the basis of all administrative action. 6 Compiled by Stacy Page 6 a) Applying one's mind to the matter - has indeed ``applied his or her mind to the matter'' when all the requirements of the law have been met Study Unit 7 The right to lawful administrative action as requirement for valid administrative action Section 33(1) provides for: Everyone has the right to administrative action that is lawful, reasonable and procedurally fair – ie it entrenches the principle of legality Reasons why lawful administrative action has been expressly guaranteed by the Constitution: 1. To prevent the adoption of any laws that will exclude judicial control over administrative action: restricts the application of ouster laws. 2. Entrenches the principle of legality, which demands compliance with all law. Lawfulness is also reflected in other provisions of the Constitution; Section 2: Constitution is the supreme law and any law or conduct inconsistent with the Constitution is invalid; Bill of Rights: protects everyone's identified rights against violation and constitutes the most important check on or restriction of the possible abuse of public power; Section 7: the state must respect, protect, promote and fulfil the rights in the Bill of Rights; Section 8: Bill of Rights applies to all law and limitation clause under Section 36. When using the limitation clause it must be “reasonable and justifiable” in anopen and democratic society based on human dignity, equality and freedom. Section 36 specifically provides the following factors to be taken into account; the nature of the right the importance of the purpose of the limitation the nature and extent of the limitation the relation between the limitation and its purpose less restrictive means of achieving the purpose. PAJA and lawful administrative action provides for the judicial review of any administrative action. PAJA provisions dealing with the administrator; 1. Who is the administrator – defined as an organ of state or any natural or juristic person performing administrative action. Note always clothed with state authority and has discretionary powers 2. Qualifications – often obtained from enabling Act 3. Delegation – unlawful unless certain requirements have been met a. General rule: delegatus delegare non potest. – meaning “the person to whom a power is granted may not delegate it to another” b. When is delegation permissible? – when original legislation empowers an administrator either expressly or by necessary implication to further delegate the power in question. Constitution also provides for delegation where the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed. c.General rules for delegation (NIAC) i. If the task involves discretionary action the task may not be delegated unless specifically provided by statute ii. An administrator exercising discretionary power is not prevented from instructing a subordinate to implement his decision iii. The administrator must apply his own mind and not accept directions from another iv. An administrator may appoint a fact-finding committee to assist him in the decision d. Kinds of delegation i. Mandate – instruction or command to execute a decision – not delegation 7 Compiled by Stacy Page 7 ii. Deconcentration – reason to provide for a division of labour and more efficient administration. Following rules apply; 1. Head of the administrative hierarchy may withdraw the power at any time 2. The delegate acts in the place of the delegator 3. The delegator still exercise control over the delegate and may intervene. The delegator is not functio officio until the conclusion of the matter 4. Authoritative functionaries within the same hierarchy cannot get involved in legal disputes with one another iii. Decentralisaton – delegator transfers certain powers and functions to an independent body eg appointment of a board to issue licences 4. Powers of the administrator – the empowering legislation will have the provision which demarcate or delimit the administrator’s powers; a. Geographic area b. The time within which the administrator must administer power c.The object or subject matter of the power / authority is usually prescribed with precision by the Act d. Prohibition or restriction on the abuse of power by the administrator via; i. Unauthorised purpose – (fraudem legis) note legal power is extended in an unauthorised manner, questioning the concept of legality. The test is objective – by doing this was the outcome achieved. The exercise of an administrative action for an unauthorised purpose amount to an invalid action. ii. Ulterior motive – fraudem legis ie acting in a way to defeat the law iii. Unauthorised procedure – this can amount to fraudulent action, ulterior motive to defeat the purpose of law 5. The administrator and the exercise of power in bad faith - he or she could not have applied his or her mind to the requirements for validity of administrative action. It also shows a deliberate disregard of the basic requirement that public power must be exercised in the public interest Study Unit 8 The Constitutional right to procedurally fair administrative action The task of a reviewing court is to determine whether the discretion has been exercised properly within the confines of the law not whether it was correct or not. Reasonableness is not a separate, distinct and independent requirement for valid administrative action. Courts rely on the principle of ``symptomatic unreasonableness'' - any unreasonable administrative action is merely an indication (symptomatic/a symptom) that some other requirement for valid administrative action has not been met.  Unreasonableness is not in itself a reviewable defect, but is relevant only in so far as it points to some other defect in the decision/administrative action. Courts will only interfere where the decision is so grossly unreasonable as to warrant the inference that the authority had failed to apply its mind properly to the matter – i.e. the unreasonable disposition of the administrator. The test is thus not objective S 33 of the constitution provides also that every person shall have the right to administrative action which is justifiable in relation to the reasons given for it where any of his or her rightsis affected or threatened. Thus justifiable means there must be link between the reasons given and the decision. Courts approach to justified - in order to prove justifiable in relation to the reasons given for it, must be objectively tested against the three requirements of suitability, necessity and proportionality which requirements involve a test of reasonableness. Gross unreasonableness is no longer a requirement for review. The role of the courts in judicial reviews is no longer confined to the way in which an administrative decision was reached but extends to its substance and merits as well. 8 Compiled by Stacy Page 8  Suitability - In accordance with this requirement the administrator must choose only those means that are most appropriate for achieving the desired end. Similar to rationality - must be a rational connection between the end and the means.  Necessity - that the administrator must take only such steps as are necessary if any prejudice to an individual is involved. He must choose the action that causes least harm to those who will be affected by the measure.  Weighing up the advantages and disadvantages - 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. In short, proportionality requires the achievement of an even balance. 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. Con Court in Bato Star case has given the idea of reasonableness which will include;  The nature of the decision  The identity and expertise of the decision-maker  Te range of factors relevant to the decision  The reasons given for the decision  The nature of the competing interests involved  .Tthe impact of the decision on the lives and well-being of those affected Study Unit 9 The right to procedurally fair administrativeaction 1. Procedural fairness i. Right to participation ii. Right related to procedural fairness only – not to the merits of the decision iii. Procedural fairness improves the quality of decision making 2. Common law rules of natural justice - Set of rules aimed at ensuring administrator acts in a fair and that the individual is treated fairly, i.e. the administrator applies his mind to the matter. a) Purpose of rules of natural justice: i. They facilitate accurate and informed decision making. ii. They ensure that decisions are made in the public interest. iii. They preserve important procedural values. b) The content of the rules of natural justice i. audi alteram partem (literally: “to hear the other side”) (HIR) 1) The individual must be given an opportunity to be heard on the matter (i.e. the opportunity to put his or her case). Which further entail the following; proper notice of intended action whether required by statute or not reasonable and timely notice in order to collect information and prepare personal appearance – person must be given a fair opportunity to present their case legal representation – however this is not a right and can be claimed when conferred by statute evidence/cross-examination – does not form part of natural justice public hearing – but no absolute right thereto 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. ii. nemo iudex in sua propria causa (literally: “no one may or should be a judge in his own cause”.) In other words, it is a rule against bias (partiality or prejudice). Most common examples are pecuniary interest and personal bias