South African Administrative Law

Unit 1: Development of Administrative Law in South Africa

• Section 33 of the Constitution ensures everyone has the right to lawful, reasonable, and procedurally fair administrative action.
• Written reasons must be provided to anyone adversely affected by administrative action.
• National legislation must enable the review of administrative action by a court or independent tribunal, impose duties on the state to respect rights, and promote effective administration.

Definition of Administrative Law

• Administrative law is a part of constitutional law that empowers public authorities and holds them accountable to the rule of law.

Key Aspects of Administrative Law

• Ensures Transformative Constitutionalism by regulating executive power.
• Contains a dual nature in public power, authorizing and regulating as well as aiming for empowerment and accountability.
• Widens views from judicial review only to encompass methods of scrutinizing fairness and justice
• Emphasizes the public nature of authority and functions.
• Rooted in the rule of law, similarly to rest of the legal system.

Development of South African Administrative Law

• Understanding the historical and social context is crucial for interpreting current administrative law.
• Development history is helpful to informs current law as well as avoids repetition of past mistakes.

Factors Shaping Administrative Law

• English law is a strong and enduring influence, such as in judicial review.
• Individual judges shapes development by influencing administrative law (Judge-made law, primacy of judicial review)
• Judicial authority is affected by Judicial policy- unwritten common understanding of socio-economic-political relationships in disputes.
• Also by The doctrine of separation of powers - separation of functions/personnel between government branches.
• There was less distinction of powers during apartheid.
• Public and private spheres shift and goods/services previously private are now provided by the state including mass transport, education and healthcare.
• State regulation increased during wartime and post WWII.
• The source of political power was formerly in parliament.
• Parliament was initially hesitant to delegate great discretion to officials.
• As the population expanded, control became hard for the parliament.
• Phrases like "when the minister is satisfied" comes from position where delegation of function was necessary
• Discretion was broadly used during apartheid.
• Section 238 of the Constitution, describes what is permissible (delegated powers)

Distinction Between Executive and Administrative Authority.

• Courts used classification of functions approach where judges classified public official actions into 5 categories:
• law-making ( Minister making regulations e.g. health and safety)
• judicial (decision by administrative appeal tribunal, CCMA)
• quasi-judicial (administrator grants a licence after representations from interested parties)
• purely administrative (permit to catch crayfish with little discretion)
• ministerial (administrator has no discretion, presented with application/fee e.g. municipal campsite)
• The more discretion an adminstrator has, the less judicial scruitiny there is for any review.
• The constitutional court was devoted to review authority and process of separation of powers after 1994
• Public administration falls under executive branch and it is necessary to understand executive power
• The executive branch has high discretion level with with powers granted by parliament that must remain within the law
• Using the terms of administrative action court reviewed public power, and the principle of legality is used to review non-administrative actions.
• Review grounds are not wide under principle of legality.

Distinguishing Review and Appeal

• Within the doctrine of separation of powers, judiciary reviews processes, and does not hear appeals on the actual merits
• Substantive Decisions belong to the executive branch, and courts do not interfere.
• Judges must ensure both public administration and executive adminstration remain inside powers and that processes remain adhered to
• These are hard to distinguish between, as in Carephone v Marcus 1999, value judgements must inevitably consider merits.
• Both appeal and review consider a decision’s merits though from two differing viewpoints
• Review focus is on process while an appeal focuses more on whether the correct decision in the first place (lawful and procedurally fair, reasonable)
• Courts need to maintain separation of powers and not pronounce on or usurp administrative powers.

Peculiar Character of South African Administrative Law

• Development was highly impacted by the damage of segregation and apartheid.
• Judicial review evolved within apartheid laws that were meant to hear race classification appeals
• The parliament gave extensive discretion to executive branch and police for acting against those opposing apartheid
• Judicial review offered the only lawful relief due to no Bill of Rights
• Only relief was through rules of natural justice and was the main seeked authority

Key Terminology

• Locus standi in judicio was greatly restricted which limited wider reach of administrative law
• Exclusion clauses were attempts to exclude power of judicial review via courts
• UItra vires doctrine = officials could not act outside scope of authority.
• Grounds for review started with fact there was no application of mind but expanded to incldue fairness, lawfulness, and natural justice
• Common Law did not require administrator to give reasons unless statute dictated

South African Administrative Law Reform

• Agreements in Breakwater Declaration in 1993 for ensuring proper system of administrative review through the Right to administrative justice
• Inclusion of Section 24 to Interim Constitution came with varying thresholds for making certain rights available
• Endorsement to right for justifiable administrative action
• Inclusion of procedural fairness vs rules of natural justice, and gave ability to put thoughts and concerns into writing

Stages After Interim Constitution

• There’s right to administrative action in the Constitution where action must be lawful, procedurally fair, and reaosnable
• Inclusion of right to written reasons, and Sections 33 was put on hold till more acts/legislation were enacted
• PAJA - Promotion of Administrative Justice Act
• The Act came into action in November 30, 2000
• It limits some rights under Section 33 of the Constitution

General Structure of PAJA

• Includes many definitions (eg. Act acts as key)
• It defines administrative action
• Purpose was to balance accountability with efficiency under Section 33(3)(C) of Constitution
• Essential Elements:
• Failure/decision to make decision
• Nature must be administrative
• Empowering provisions to be made

Exclusions

• Executive and legislative functions at all levels
• Actions of justice members (judges, magistrate) when applying justice
• Decisions to institute or continue prosecution
• Decisions of Judicial Services Commission in appointing judges
• Act's Section 2 never used, and 3, 4, and 5 deal with procedure, fairness and reasoning
• Section 6 sets out for review
• Is challengeable and needs different grounds, has review to do idea of reasonableness with openness to review ground
• Section 7 deals with procedure
• Section 8 deals with remedy
• Section 9 deals with timlines, other laws and regulations

Avenues to Judicial Review

• Is mechanism courts use to determine administrations' meet standards through Constitutions, Common Law and PAJA
• The question needed to be whether if its admin or if conduct falls under act, PAJA can be applicable with grounds for review
• Without laws in PAJA, broad scope of executive action will not meet in scope with constitutional ground
• Special Statutory needed where things need employee complaints with impact affect via public government
• Where PAJA conduct follows but is not benchmark compliant courts will use the terms of Section 33 constitution

Current state of Admin -

• To review act it must be on ground on constitution of action and terms vs. Act and Ultra Vires doctorine
• It frequents regulation through power and admin, public procurement, stats, etc through legality
• The challenge will is if courts show sufficient, predictable, approach that they show the branches of Goverment.

Unit 2: Admin Authority in Context-

• Courts seek to find context meaning of administrations with context based around complexity, judicial systems, etc around authorities and the constitution
• The state is seen as a community, nation endorsed apparatus and its use for body policy and is a technical term that is less then a state
• Permanent Secretary, Department of Education, states that the distinction is between the implementing with on one hand and policy on others
• Actions of function make part of formulation and is part of executive
• Admin functions need to have constitutional role and be part of sections

Admin action in civil service-

• Are a lot like public services but must be sturctured under national law
• Constitutional supremacy of both Bill of Rights and Consitution are enforceable and justiciable
• Consitutional of sections seen in PAJA
• The adminitstorations needs to be governed by democratic principal with democracy to be promote and held

Spreading Power doctrine

• Montesquieu created doctrine
• Doctrine operates within work setting with all states
• Hard to achieve since variables different
• Pure document is good for showing separation of power with institutes to be classified
• Functional independence to be strict

South Africa Power Doctrine

• Principle is not mentioned in constitution
• There needs to be appropriate branches for check, accountability and and openess
• VI Requires separation
• No need to understand Constitutional rigidly and technical
• Contitution like US

Value of separation (Normative way)

• Ensuring that it is what we want as a purpose for seps
• Framework within structures for help + Accountability, efficiency, and Independence, and Compromizing of rights due

Unit 3: Administrative action

• Important for vital action decisive for actions
• S33 for PAJA only is applicable to actions
• Yes to legal process (inquiry + admin action + law applies)

Seperation of states

• Both functional and institutional. Informed with state functions
• Has 4 branches to be divided
• Dual nature with execs have - policy and Admin (law + legislation)

More action with all sections (4) for example

• Action performed the legislature does not preclude
• Action can't be on with states functions. Can be reduced

Meaning action in 3 eopchs

• Common law had functions classified for judicial
• Constitution is rights - no def. And institutional to function
• Set factors help in determining if action Is the source and subject, or is for exercise,
• Head of state is administrative with policy following scrutiny, and all

Under Section 1 of PAJA

• Defines actions. With many definitions by
• Is unwieldy complex and the definitions will and should be mixed
• Courts see to attribute meaning is needed and for show
• Must show conduct does amount

Decision making + Nature

• There are 7 elements the must show (organs person and provision, function, affects and effects not under exclusions)
• Administrative has 2 segments and a measure of finality and applies entire process
• It needs to be applies not based off multi stage, its must be assessed against PAJA

5 : Lawfulness

• Is when an action is the existing the take + power legit
• Law stands core for legality like public actions
• Action and authorisation are same and provides for what action taken
• Must show reasons why/is

Section for when

• Where you take or and must be followed if its of nature

• In minister there are acts including for systems policy

• The elements necessary are exactly are reason and purpose to be done

• If empowered provision is when its wide the administrators

It protects freedom of

• Action with what actions Authorised
• Dis. May be limited by for what of power
• Purpose of or and be with authorised
• It must come of what can reviewed actions of

-Unauthorised is first on. For and like is no need to show the you must be what are The problems of action to dictate or stamp is when to can not be

• One in The questions are those that is under by provision

PAJA Section 4

• requires for to be taken for

• both + and + are now has premised of on constitution With was power to act but as

• Followed to a what

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