ADL2601 STUDY SUMMARY NOTES FOR 2022.

ADL2601 STUDY SUMMARY NOTES FOR 2022. South African administrative law is the branch of public law in that country which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities,[1] or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense."[2] According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."[3] Weichers defines administrative law as a body of legal rules governing the administration, organisation, powers and functions of administrative authorities. For Baxter, it is a set of common-law principles which promote the effective use of administrative power, protect against misuse, preserve a balance of fairness and maintain the public interest. Chaskalson describes it as the interface between the bureaucratic state and its subjects.[4] From this it may be seen that commentators agree that administrative law is concerned with attaining administrative efficiency, and with ensuring that this power is tightly controlled, so that no abuse may occur. In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa, [5] it was held that administrative law forms the core of public law. It overlaps with constitutional law because both deal with organs of state and their relationship to individuals. Administrative law differs from constitutional law, however, in its emphasisis on a particular branch of government (the public administration) and on a particular activity of the state (administrative action). In President of the RSA v SARFU, the Constitutional Court held that the administration is that part of government which is primarily concerned with the implementation of legislation. In summary, then, administrative law regulates the activities of bodies that exercise public powers or perform public functions. It empowers administrative officials so that they may implement policies or programs, and limits the exercise of power by requiring all administrative action meet the minimum requirements of lawfulness, reasonableness and fairness. Sources Administrative officials derive their authority or jurisdiction from a legal instrument or rule, and may only do what a law authorises them to so. This is known as the principle of legality, which requires that administrative authorities not only refrain from breaking the law, but that all their content comply with the Constitution and particularly the Bill of Rights. The sources of administrative law are, in order of importance,  the Constitution;  legislation; and  the common law. Constitution[edit] The Constitution is the supreme law of the land. Any law or act which is inconsistent with it has no force or effect. The effect of this provision is that laws and administrative acts must comply with the Constitution. The Constitution is binding on the executive branch of government in every sphere of administration. The importance of the Constitution as a source of administrative law was best articulated in Pharmaceutical Manufacturers, where Chaskalson P held that the control of public power by the courts through judicial review is a constitutional matter. The common-law principles that had been applied to control powers prior to 1994 have now been subsumed under the Constitution. As a source of administrative law, the Constitution establishes a variety of agencies and administrative structures to control the exercise of public power. In Bato Star Fishing v Minister of Environmental Affairs, O'Regan J held that there are not two systems of law regulating administrative action—the common law and the Constitution—but only one system grounded in the Constitution. The courts' power to review administrative action no longer flows directly from the common law, but rather from the constitutionally mandated PAJA and from the Constitution itself. The grundnormof administrative law is now to be found in the first place not in the doctrine of ultra vires, nor in that of parliamentary sovereignty, nor in the common law itself, but rather in the principles of the Constitution. The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter. The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of PAJA and the Constitution. Legislation[edit] Legislation includes  Acts of Parliament;  provincial legislation;  by-laws; and  regulations, etc. All these statutes may confer authority to take action and make decisions. For a statute to be valid, it must conform to constitutional requirements. Provincial legislation[edit] Section 125(2)(b) of the Constitution states that the Premier of a province exercises its executive authority, together with the other members of the Executive Council, by implementing all national legislation within the functional areas listed in Schedules 4 or 5 of the Constitution, except where the Constitution or an Act of Parliament provides otherwise. Local-government legislation[edit] Section 151 of the Constitution states that the executive and legislative authority of a municipality is vested in its municipal council. The municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution. In Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council, the court found that the imposition of the rates and levies and the payment of the subsidies did not constitute "administrative action" under section 24 of the Interim Constitution. By-laws cannot fall within the definition of administrative action in PAJA; therefore they are not subject to the principles of just administrative action. Subordinate legislation[edit]