ADL2601 - Administrative Law summary notes.

ADL2601 - Administrative Law summary notes. 4 Key issues / pillars in Admin Law Authority = * Governs relationships between legal subjects * Relationships are not on equal footing (inequality – vertical relationship) * Always a superior / senior official involved Admin action= * Facilitates & regulates human behaviour / interaction * Conduct of anyone exercising public / authoritative power Just Admin action * The right of every person * All admin action by persons exercising public power must be “LAWFUL, REASONABLE & PROCEDURALY FAIR” Control of admin action = The way / manner in which authority / power has been exercised 3 Requirements for any admin action:- 1. 2. Be lawful – must comply with all req of law (as found in sources of law) Be reasonable – Must have a reasonable effect / result - Discretion exercised & decision taken by person in authority must be correct (based on objective facts & circumstances) 3. Be procedurally fair – Correct procedure must be used to take decision - Subordinate party must be given chance to defend position before decision is taken When decision results in someone’s rights being adversely affected – written reasons for decision should be given * Law provides protection against any possible harm which results from exercise of powers (against abuse of power) * To correct an action – to rather use method of internal / admin control (senior officials review action) then going to court Admin Law is the sum total of legal rules that grant people / bodies in authority power to: * take action * Prescribe procedures to be followed where taking such action * Ensure such action is within the boundaries of the law Also provides for control over such action (Activity on page 7) UNIT 2 – SOURCES OF ADMIN LAW Sources of Admin Law:- 1. Binding (Authoritative) sources: 1. The Constitution - Most important statutory - & most authoritative source - Sets standard for which admin conduct & actions of every admin functionary / institution in SA - Guarantees justice for all by demanding all req for admin action must be met. (Guarantees Just Admin Action) (Activity page 12) lOMoARcPSD| 2 2. Legislation * Original = Passes b Parl in Nat sphere = 2 examples of Acts of Parl that compliment prov of Const & crucial to Admin Law:- # Promotion of Justice Act 3 of 2000 (PAJA) # Promotion of Access to Info CT 2 OF 2000 = Passes by 9 provincial legislatures in Prov Sphere = Also passed by elected local govs (Munic councils) in Local spheres * Subordinate = Passes ito original legis (but must not conflict with prov of enabling Act / statute) = In Nat sphere of gov – this legis passed by institutions empowered to make these rules = Examples:- # Proclamations of President (issued ito empowering statute to declare date of commencement of particular statute # Regulations made by ministers ito enabling Statute = Found in Prov & Local sphere too (Activity page 15) 3. Case Law (judicial precedent) - Task of courts to determine meaning of particular legal rule & apply rule to concrete situations - Guidelines prescribed by Const - Judgments of previous cases binding on other courts (Activity page 16) 4. Common law - Unwritten law of SA - Common law not important part of Admin law (But English & Roman-Dutch law played role in development of Admin law) - 2 Examples of English law:- # principle of ultra vires # Development of rules of natural justice 5. Admin practice (custom of usage) 6. International Law 2. Persuasive 1. 2. Writing in books & journals explaining academic opinions – - Courts often refer to academic opinions expressed in law journals & books Policy docs (Such as Green & White papers) – - Current gov policies on various topics expressed in so-called White - & Green Papers - Green Papers = Consultative doc = People invited to comment on various matters to be regulated by gov in through papers - White Papers = Is blueprint of gov policy on various matters 3. Reports by “state institutions supporting Const Democracy. Ie. Reports of Human Rights Comm – Institutions (as Public Prosecutor & Attorney-General) report on admin conduct lOMoARcPSD| 3 4. Foreign Law (Comparative law) - Sec 39(1)(c) states court may consult F law Where to find Admin Law sources Read in book – page 20 Activity & scenario page 21 Activity page 23 UNIT 3 – ADMIN LAW RELATIONSHIP Activity page 24 & 25 1. Characteristics of Admin Law relationship 1. At least 1 legal subject must be person / body who exercises power 2. Position of power must be held by person clothed with government authority & who is able to exercise power * Admin law relationships can exist between:- Person who exercises authority & private individual in subordinate position Person who exercises authority & lower-ranking official in same department (inter se) (Activity page 27) 2. Distinction between general & individual admin law relationship 2.1 General (objective) relationship:- * Legal rules governing relationship between parties apply to all subjects within group * These rules apply impersonally & non-specifically (NOT to particular legal sunject) * Created, changed / ended by legis only. 2.2 Individual (subjective) relationship * Rules apply personally & specifically between parties * Contents will vary from case to case * Created by individual admin decisions * Not affected by new general legis provisions, unless Amending Act specifically that it affects relationship (Activity on page 28 & 29) UNIT 4 – LEGAL SUBJECTS OF ADMIN LAW RELATIONSHIPS Activity page 30 Activity page 31 1. Identification of the authoritative party to / in admin law relationship * Const describes auth party as “organ of state” Sec 239 declares:- NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! “organ of state” means – (a) Any department of state / admin in Nat , Prov / Local sphere of gov; or (b) Any other functionary / institution (i) exercising power / performing function ito Const / Prov Const (ii) exercising public power / performing public function ito any legis But doesn’t include a court / judicial officer Activity page 33 Downloaded by Rufaro Chikovore () lOMoARcPSD| 4 Sec 239 in greater detail:- “ (a) any department of state or admin” * In National Sphere = Departments of state / gov. * Eg. Dept of Agriculture; Arts; Culture; Science & Technology; Education etc * May refer to entire department and/or to its functionaries (public servant) * “Organs of state” include members of cabinet, Deputy Ministers, President as head of Nat exec & Deputy President * In Provincial Sphere = Includes Prov dept of sate (provisional public service); Premiers of 9 provinces; &other members of Exec Councils (MECs) – all executive heads of various departments * In Local Sphere = Include Munic parties & various munic councils vested with executive auth * “Organs of state” refers to functionaries & institutions part of public admin “(b) any other functionary / institution (i) exercising power / performing funct ito Const / Prov Const” Or (ii) exercising power / performing public funct ito any legis * Definition of “organ of state” has been broadend * Difficult to determine if in particular case – if functionary / institution acting in public / private capacity, * Have to determine in each case if (a) Functionary exercises public power / performs public function (b) If functionary is doing it ito the legislation * Exercise of public power – decisive. Currie & Klaaren explain:- Indicates that, while private person / entity can be an “administrator” … what is important is public nature of power exercised rather then person / entity exercising it Activity page 35 2. Role of Associations, Clubs & other “private” organisations” *Voluntary assoc – sports club, church assoc etc = NON-STATUTORY bodies * Relationship between members & management – similar in certain respects to admin/subordinate relationships of public law (unequal relationships) * Although might have professional status – not organs of state * Not created by statute & don’t possess any state auth (remain private non-statutory bodies) * Traditional common law rules of admin apply (because management in position of auth over member) * Because matters as admission, suspension etc are governed by their Consts (courts will interpret powers strictly on basis of agreement betwn members & assoc as contained as in their Consts) Activity page 37 3. Persons (natural / juristic) whose rights & interests are affected by exercise of authority * Person in subordinate position not always person / entity outside public sphere – but may be lower ranking gov official. * In such situation – superior gov official / body exercises auth over subordinate official * Remains public law relationship * Person in subordinate position must obey instructions of superior officer & may be prohibited from action in certain way.