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Questions and Answers
The Constitution defines administrative action as a simple codification of common-law principles.
The Constitution defines administrative action as a simple codification of common-law principles.
False
Only an organ of state can perform administrative action.
Only an organ of state can perform administrative action.
False
A decision of a purely administrative nature must adversely affect rights.
A decision of a purely administrative nature must adversely affect rights.
True
The public administration is a part of the legislative branch of government.
The public administration is a part of the legislative branch of government.
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The elements of administrative action identified by the court include having a direct, external legal effect.
The elements of administrative action identified by the court include having a direct, external legal effect.
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Administrative action can include a failure to take a decision.
Administrative action can include a failure to take a decision.
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The court held that the functionary performing an action is more important than the function itself.
The court held that the functionary performing an action is more important than the function itself.
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The procedural requirements set out in PAJA only apply when an action is classified as administrative action.
The procedural requirements set out in PAJA only apply when an action is classified as administrative action.
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The power of judicial review during the pre-constitutional period was based on the common law tradition.
The power of judicial review during the pre-constitutional period was based on the common law tradition.
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Section 24 of the interim Constitution replaced the common law as the only source of administrative law.
Section 24 of the interim Constitution replaced the common law as the only source of administrative law.
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The right to just administrative action was initially set out in section 33 of the final Constitution without any conditions.
The right to just administrative action was initially set out in section 33 of the final Constitution without any conditions.
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PAJA is the legislation that gives effect to the right to just administrative action as stipulated in section 33.
PAJA is the legislation that gives effect to the right to just administrative action as stipulated in section 33.
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During the constitutional period prior to PAJA, administrative law operated independently of the Constitution.
During the constitutional period prior to PAJA, administrative law operated independently of the Constitution.
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The SARFU judgment confirmed a new approach to the interpretation of public power in administrative law.
The SARFU judgment confirmed a new approach to the interpretation of public power in administrative law.
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The pre-constitutional period of administrative law completely dismissed the concept of parliamentary sovereignty.
The pre-constitutional period of administrative law completely dismissed the concept of parliamentary sovereignty.
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The right to just administrative action was entrenched in section 33 of the interim Constitution.
The right to just administrative action was entrenched in section 33 of the interim Constitution.
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Administrative law applies to parts of the administrative process leading to a final decision.
Administrative law applies to parts of the administrative process leading to a final decision.
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One can challenge an administrative process in court before the final decision is made.
One can challenge an administrative process in court before the final decision is made.
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Administrative powers are created, not applied, to particular factual circumstances according to court rulings.
Administrative powers are created, not applied, to particular factual circumstances according to court rulings.
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Only public bodies can perform administrative actions according to the definition of PAJA.
Only public bodies can perform administrative actions according to the definition of PAJA.
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The term 'organ of state' includes institutions exercising public power or functions.
The term 'organ of state' includes institutions exercising public power or functions.
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Administrative action is evaluated based solely on who is acting.
Administrative action is evaluated based solely on who is acting.
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Determining if a power or function is 'public' is a straightforward task.
Determining if a power or function is 'public' is a straightforward task.
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The inclusion of natural or juristic persons broadens the scope of who can perform administrative actions under PAJA.
The inclusion of natural or juristic persons broadens the scope of who can perform administrative actions under PAJA.
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The Chief Justice provided a simple definition to determine whether a particular power is public.
The Chief Justice provided a simple definition to determine whether a particular power is public.
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The impact of a decision on the public is one of the factors indicating whether a function is public.
The impact of a decision on the public is one of the factors indicating whether a function is public.
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Administrative law does not deal with delegated powers.
Administrative law does not deal with delegated powers.
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A source for decisions by organs of state can only be a national constitution.
A source for decisions by organs of state can only be a national constitution.
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An action that adversely affects rights must have legal consequences.
An action that adversely affects rights must have legal consequences.
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All administrative actions must be final to be considered effective.
All administrative actions must be final to be considered effective.
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Empowering provisions are solely limited to constitutions.
Empowering provisions are solely limited to constitutions.
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The Constitution of a political party can serve as an empowering provision.
The Constitution of a political party can serve as an empowering provision.
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Study Notes
Administrative Action & PAJA
- Administrative action pre-Constitution, post-Constitution but before PAJA, and as defined in PAJA
- PAJA and section 33 of the Constitution regulate the right to just administrative action.
- Administrative action is a prerequisite for applying administrative law.
Three Phases of Administrative Action
- Pre-constitutional period
- Constitutional period prior to PAJA's enactment
- Constitutional period subsequent to PAJA's enactment
Pre-Constitutional Period
- Administrative law operated within common-law tradition and parliamentary sovereignty.
- Judicial review power derived from courts' inherent jurisdiction.
- Meaning of administrative action was determined by the extent of court review powers over executive actions, limiting administrative law.
Constitutional Period Prior to PAJA
- The primary source of administrative law was section 24 of the interim Constitution.
- Common law remained a source of administrative law, alongside the Constitution.
- The final Constitution entrenched the right to just administrative action in section 33.
- Section 33 (of the Constitution) didn't immediately operate due to the Constitution’s Schedule 6.
- Section 33 became operational after national legislation for the right to just administrative action was enacted within three years.
From Institutional to Functional - Sarfu Judgment
- The Constitutional Court emphasized a new approach to public power in the Sarfu case.
- The Sarfu case is crucial for interpreting section 33 and applying administrative law generally.
- Administrative action is one aspect of public power exercise.
- Courts must define the scope of 'administrative action'.
- The appointment of a commission by the President, under section 84(2)(f) of the Constitution, may (or may not) qualify as administrative action.
Administrative Action Under PAJA
- PAJA's Section 1 defines administrative action.
- PAJA's definition of administrative action acts as a gatekeeper for legal recourse.
- Parties must prove conduct is considered administrative action as defined.
- An administrator needs only to follow procedural steps set out in PAJA's Act when taking action, if that action is administrative.
Elements of Administrative Action
- Seven elements are identified by the Constitutional Court in Minister of Defence case to prove administrative action.
- Decision (of an administrative nature),
- By an organ of state/natural/juridical person
- Exercising public power/performing public function
- In terms of legislation/empowering provision,
- Adversely affects rights,
- Has direct, external legal effect
- Does not fall under listed exclusions
Decision of an Administrative Nature
- The decision must have a degree of finality. (in administrative context)
- PAJA applies to the entirety of an administrative process until a final decision.
- Cannot apply the concept of a "decision" piecemeal; it must be examined as an entire process.
- The action cannot be challenged in court before a final decision is reached.
Decision Which Are Administrative in Nature
- Actions fall under public power/administrative character.
- Actions involve applying existing policy to particular factual circumstances. This is distinct from policy creation.
By an Organ of State or a Natural or Juridical Person
- Administrative action can be taken by public or private entities.
- PAJA's functional approach emphasizes the importance of the nature of the action, not necessarily the entity.
- Organizations exercising public powers or performing public functions are part of administrative action's scope.
Exercising a Public Power or Performing a Public Function
- The action's nature is central to determining admin action.
- Focus is on what is done, not who did it. (Functional, not institutional approach).
What is a Public Power or Public Function
- Chirwa's case gives guidance in determining a public function or power.
- Useful factors:
- Power relationship relating to the public institution,
- Decision on public interest,
- Source of power,
- No single factor is determining; consideration of all factors may point to it.
In Terms of a Constitution, Any Legislation or an Empowering Provision
- Administrative law concerns the granting/exercise of delegated powers.
- Decisions derive their authority from specific constitutions, legislation, or empowering instruments.
- National Constitution, Provincial Constitution, Legislation etc.
That Adversely Affects Rights
- Administrative action may affect rights under the law. (e.g., BOR Rights)
- Rights under other laws or common law are also influenced by this factor.
- The effect on rights must occur adversely.
That Has a Direct, External Legal Effect
- The decision must be final.
- Circumstances may dictate that action is administrative even if subsequent action is contemplated.
- Acts internal to the administrative body would not qualify,
- Administrative action has a measurable impact in the outside world.
That Does Not Fall Under Any of the Listed Exclusions
- Listing of nine exclusions for administrative action from PAJA’s context.
- The actions do not need to be reviewed under PAJA guidelines.
The Exclusions
- These are executive functions at various levels (national, provincial, municipal).
- This includes legislative work and judicial officer work.
- The issuance of prosecution orders.
- Decision making for Judicial Officer appointments.
- Decisions aligning with PAJA, and section 4(1) regarding public participation.
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Description
This quiz explores the evolution of administrative action in South Africa, including its status pre- and post-constitution, as well as the impact of the PAJA legislation. Key phases in administrative action, such as the pre-constitutional period and the constitutional framework leading to PAJA, are discussed to highlight the legal foundations of administrative law.
