Summary ADL2601 - Administrative Law Exam Notes.

Study Unit 1 Overview of Unit Part 1: State Authority and the Holders of such Authority 1.1 AN OVERVIEW OF THE GENERAL FEATURES OF ADMINISTRATIVE LAW CONCEPT KEYPOINTS Features There are four key features of administrative law, these are the gist of the module State Authority This is public 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 authority affects the rights of that subordinate. The question to ask in administrative law is whether any person or body has acted as an organ on state. Whether the actor does indeed have such authority as a public function. Administrative Action This is the conduct of functionaries and institutions, administrators when exercising a public power or performing a public function in terms of any legislation. It usually is in the form of a decision. Just Administrative Action This is the manner or conduct in which any administrative action must be performed by an organ of state, natural or juristic person in exercising state authority. The constitution requires all administrators to act lawfully, reasonably, to follow fair procedures and to give written reasons when decisions are made that adversely affect the rights of any subordinate person. Control of administrative action These are the means of correcting or rectifying administrative action that is not just/fair, when administrative action is not in line with the prescriptions of the law. It applies when prejudice of subordinate can be established. Does he have a case/grievance against the administrator 1.2 WHAT IS ADMINISTRATIVE LAW CONCEPT KEYPOINTS Descriptive Definition To explain it is not easy because it is a wide field and is present in every area of our lives. In any relationship where authority is present, the relationship is one of inequality. It’s a vertical relationship. The power of one party to compel another legally to act in a specific way. The conduct of this authoritative person is called administrative action. Administrative Action Action taken by organs of state. Executive Action v Administrative Action *Note S 239 of C and S 1 of PAJA, Executive Action described in the constitution excluded administrative action described in PAJA. Examples of this difference When a minister makes and decides on policy as cabinet, this is an executive action (political decision), when they implement legislation or executes those same policies, this is administrative action Whether the action was authorized, that is, permitted, relates to the authority to act. Was the party that acted authorized to act the way it did. All parties should derive their authority from the constitution and/or specific legislation. The answer to the question whether action complies with the requirements of the law relates to the way or manner in which public power has been exercised or a public function has been performed. Lawful It must comply with all requirements of the show, as found in Constitution, relevant legislation, common law, customary law, case law. Reasonable It must be a reasonable effect or result. Decision must be sound and sensible to a point that the party involved can say “I don’t agree with the decision but I understand it”. Procedurally fair Correct procedure must be used to take a decision. This partly means that the subordinate party must be given an opportunity to air their case before a decision is taken and authority must act impartially. Written reasons If decision adversely affects the rights of a subordinate, the authority should provide a reason in writing. • Administrative law forms part of public law. Administrative law regulates the activities of organs of state and natural or juristic persons that exercise public powers or perform public functions. Regulating the activities of organs of state and natural or juristic persons includes prescribing the procedures to be followed when public powers are exercised or public functions performed; and ensuring that such action is within the boundaries of the law. Regulating also includes control over such action. LEGISLATION DESCRIPTION APPLICATION CASE LAW Section 239 of C a) Organ of state: Any department of state or administration in the national , provincial or local sphere of gvt Shows the scope of administrative action in terms of the organ of state Section 239 of C b) i) Any other function or institution- i) exercising a power or performing a function in terms of the constitution or a provincial constitution Covers Institutions like Chapter 9 institutions Section 239 of C b) 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 Section1 of PAJA b (aa) (describing the scope of the Admin Action) Does not include: the executive powers or functions of the national executive. (bb) the executive powers or functions of the provincial executive. (cc) the executive powers or functions of a municipality council. (dd) the legislative functions of parliament, provincial legislature or a municipality council (ee) the judicial function of a judicial officer Areas of executive administration not deemed as admin action Section 33 (3) of C Enacted to provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal. Impose a duty on the state to give effect to