ADL2601 SUMMARY 2022

ADL2601 SUMMARY 2022 THE ADMINISTRATIVE-LAW RELATIONSHIP The characteristics of the administrative-law relationship (1) At least one of the legal subjects must be a person or body who exercises power. (2) More important, the position of power must be held by a person or body clothed with state authority, and who is able to exercise that authority.  The authoritative person or body – organ of state or natural or juristic person – must have the power to prescribe, restrain or allow other individuals or juristic persons to act in a certain way.  The authoritative person uses the authority to compel the other party to act in a specific way.  Such exercise of power may affect the rights and interests of the person in the relationship leaving such person in a subordinate position.  It is therefore an unequal relationship. General and an individual administrative law relationship The general or objective relationship  The legal rules governing the relationship between the parties apply to all the subjects within a particular group.  These rules thus apply impersonally, that is generally and objectively, and non-specifically and NOT to a particular identifiable legal subject.  The general relationship is created, changed or ended by legislation (including delegated/ subordinate legislation), that is by general means.  A general administrative law relationship cannot be created, changed or ended by, for example, a decision by the Director-General of Home Affairs. The individual or subjective relationship  Legal rules apply personally and specifically between the parties.  The legal rules apply to specifically identifiable legal subjects.  The content of the individual relationship will vary from case to case.  Individual relationships are created by individual administrative decisions.  Furthermore, individual relationships are not affected by new general legislative provisions, unless the amending Act specifically states that it affects the relationship.  The presumption is that an existing individual relationship is not affected by amending legislation – an example of the presumption against retrospectivity. STUDY UNIT 3 THE LEGAL SUBJECTS OF THE ADMINISTRATIVE LAW RELATIONSHIP 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.  Any department of state or administration: In the national sphere, refers to departments of state or government departments.  “Organs of state” include o National sphere - the members of cabinet (the ministers who are the executive heads of the various departments of state), Deputy-ministers, Both the President, and the Deputy President. o Provincial sphere – the provincial public service, the Premiers of the nine provinces, and the other Members of Executive Councils (MECs) who are the executive heads of the various provincial departments of state. o local sphere - municipalities and various municipal councils vested with executive authority Note, that although the President, Deputy President and ministers are organs of state, not all their functions constitute a