ADL 2601 ASSIGNMENT 1

a) Elements of administrative action with reference to the provisions of the promotion of administrative justice ( PAJA ) 1. Decisions A decision will also qualify as an administrative action when it involves the refusal the take action. A decision relating to any aspects regarding the nomination, selection or appointment of judicial officer or any other person by the Judicial Service Commission (JSC) as per section1 (gg) of PAJA. • decision taken or failure to take a decision in terms of section 4 (1) of PAJA • decision means any decision of an administrative nature made, proposed to be made or required to be made, as the case maybe under an empowering provision, including a decision relating to a) making, suspending or refusing to make an order award or determination b) Issuing, suspecting or revoking or refusing to issue a licence, authority or other instrument. c) Imposing a restriction or condition d) Making a declaration, demand or requirement e) Retaining or refusing to deliver up an article or f) Doing or refusing to do any other act or thing of an administrative nature and a reference to a failure to take a decision must be constructed accordingly. 2. Administrative nature The element that the decision needs to be of administrative nature, it simply means that such decisions need to be related to our day to day business of implementing and administrating policy. Administrative action is concerned with only one branch of the state system which is the executive and as it is described in Grey Marine Hout Bay (PTY) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) which is described as a conduct of bureaucracy in carrying out the daily function of the state, which necessarily involve the application of policy , usually after its translation into law with direct and immediate consequences for groups or individuals. However not all decisions are administrative action, for a decision to be an administrative action, a decision must be as follows: • Of an administrative nature • Taken by an administrator It must distinguish between the legislative which is making or changing new laws and administration which is applying the general law to existing laws. 3. Under an empowering provision Empowering provision is defined as a law, a rule of common law, customary law or an agreement, instrument or any other document. It simply means that the exercise of public power or performance of public function must have an authoritative foundation or basis of some kind which means that such decision must be permitted by law. An empowering provision is usually a provision of a law that allows an administrator to make such decision. This study source was downloaded by from CourseH on :10:24 GMT -06:00 4. Organ of the state or natural or juristic person when exercising public power or performing public function The action of the organs as defined in Section 239 of the constitution will qualify as an administrative action when they exercise power in terms of the constitution or provincial constitution. In Section of 239 of the Constitution organs of the state include “functionaries or institutions exercising a power or performing a function in terms of any legislation”. 5. Adversely affects the rights of any person This simply means the decision must impose a burden or have a negative impression by limiting or removing someone ‘else right or decide that someone does not have a right to something. Any beneficial decision will therefore not be administrative action This decision could deprive a person of their existing right. 6. That has a direct, external, legal effect • Direct effect means that the decision must be a final one, if the making of a decision requires an administrator to take several decisions or steps, then only the last step a