Understanding Administrative Law

Introduction to Administrative Law

• Administrative law applies to everyone's life, covering social welfare, licensing, citizenship, public procurement, environmental authorizations, tax collections, education, and electricity.
• Administrative justice necessitates advancing justice, ensuring accountability, preventing corruption, improving public control, restraining power, and protecting human rights.
• Quinot defines administrative law as part of constitutional law that empowers public authority and holds it accountable.
• Hoexter describes it as an incident of separation of powers where courts regulate the exercise of public power.

Key Aspects of Administrative Law

• Administrative law regulates the executive branch, making it part of constitutional law.
• Public power has dual aspects: authorization and regulation, with accountability as a key element.
• Administrative justice is a narrower aspect, focusing on judicial review, while administrative justice includes alternative methods of review.
• The legislature guarantees the system's effectiveness, with Parliament acting as a watchdog.
• Administrative law concerns public authority and functions, focusing on the nature of the power exercised.
• Rooted in rules of law, may lead to different interpretations due to its judge-made nature with little Roman Dutch influence.
• Aligning with the rule of law, follows A.V. Dicey's principles: equality before the law, ordinary courts for all, and organically developed through court proceedings.
• The ultra vires principle overlaps, requiring lawful grant for public power.
• The separation of powers requires separation of personnel and functions among government branches, with mutual checking and balancing.
• Judicial review involves judges "making" law through precedents, containing executive power.

Rule of Law

• The rule of Law applies to everyone, consistently, and is clear and certain.
• Dicey's rule of law includes the supremacy of law, equality of citizens, and jurisdiction of ordinary courts.

Administrative Law vs Constitutional Law

• Administrative law is part of constitutional law.
• It regulates the executive branch.
• The constitution guarantees the right to administrative justice.
• Common law did not require administrators to give reasons.
• Constitutional and administrative law overlap.

Administrative Law vs Administrative Justice

• Administrative law forms the foundation for administrative justice.
• Judicial review is the main aspect of administrative law, while administrative justice includes alternative ways to ensure fairness, such as Chapter 9 institutions, ombuds, and tribunals.

Development of South African Administrative Law

• South Africa's administrative law, similar to other British Empire/Commonwealth countries, developed and underwent revision in the 20th century.
• South African administrative law must be viewed in historical and social contexts.
• Law is often conservative, advancing established ideas and preferences.
• Studying the history of administrative law helps avoid repeating past errors and be wary of practices arising again.

Private and Public Sphere Shift

• State power scope has shifted over the past 100 years requiring review of the structure and state functions to ascertain intentions of administrative law.
• In 1900, private owners typically provided goods/services now expected from the state.
• Mass transport, telecommunications, education, healthcare, housing, roads, and utilities were not the state's responsibility

Reasons for government intervention

• The growth of social-democratic political parties.
• A completely free market idea declined.
• Basic standards of health and safety at work were imposed on employers.
• Global wars and epidemics have occurred.
• The world's population and urbanization have increased.
• Economic depressions occurred in the 1920s and 1930s.
• Educated and skilled workforce was needed.

Basic Terminology (1990-2000)

• Locus standi in judicio are restrictive rules about standing to sue that previously restricted administrative law's wider application.
• Ouster Clauses are legislative attempts excluded courts from judicial review power, primarily in security legislation context.
• Ultra vires doctrine prevents an official from acting beyond their powers.
• "Failure by the official concerned to apply the mind" can result in grounds for review.
• Grounds for review can require lawfulness and procedural fairness.
• Common law did not require administrators to provide reasons for decisions, but isolated statutes made this mandatory.

Reform Stages (1990-2000)

• Discussions to replace apartheid began in earnest after 1990, freeing up political activity and the return of exiles.
• The Breakwater Declaration was unanimously adopted at the Three-day workshop in February 1993 listing points of agreement and areas needing further work for administrative review.
• A key proposal from the Three-day workshop was the Right to Administrative Justice in future constitutions which was internationally unusual though mentioned in Article 18 of Namibia's Constitution.
• Section 24 Administrative Justice was included in the transitional Constitution 1993 after unanimous adoption and required someone prove that rights, legitimate expectations and/or interests had been affected or threatened and it elevated giving written reasons to constitutional status.
• The endorsement of procedural fairness and right to justifiable administrative action was introduced.
• Judges and lawyers were slow to use Section 24 and the Final Constitution contains Section 33 that guarantees lawful, reasonable, and procedurally fair action as well as giving written reasons when administrative action affects rights.
• The Constitution stated national legislation must be enacted to give the right to judicial review by a court or tribunal to impose a duty on the state and to promote efficient administration.
• The plain language Section 24 effectively applied to all cases of action arising in the period up to early February 2000.
• The Minister of Justice delayed the legislation of S33(3) of the Constitution where the tasked committee was only convened in late 1998 and produced a Bill by August 1999 in parliament that removed much of the bill's progress.
• The Promotion of Administrative Justice Act was approved in November 2000 limiting the scope of section 33.

Outline of PAJA Act

• It has only 10 sections including expansive definitions.
• Section 1(i) defines "administrative action" as A decision or failure to make one or By an organ of state or a natural or juristic person exercising a public power in terms of legislation where rights are adversely affected and it has a direct, external legal effect.
• Excluded definition includes: Executive or legislative government functions at all levels or Actions of judges, magistrates, or traditional leaders dispensing justice.
• Section 2 of PAJA allows groups of administrative action to be exempt from the Act if it is ‘reasonable’ and ‘justifiable'.

Avenues to judicial review

• Judicial review scrutinizes administrative action against constitutional, PAJA, and common law standards, granting remedies when needed.
• There are at least 5 avenues through administrative conduct can be sought.
• This leads often to applying PAJA, more occasionally grappling with PAJA.
• Special statutory review mechanisms also apply often between the LRA and PAJA.

Administrative Law importance

• It advances the constitutional right.
• It ensures accountability

Key Concepts of Administrative Law:

• Authorization and empowerment.
• Regulation and Accountability.

Administrative vs Constitutional Law

• Administrative law is part of the constitution.
• It regulates executive government and enacts PAJA.

Source of AL

• It was provided for by Common and Constitutional law, as well as the Provision of Administrative Justice Act.
• It reviews executive action, fairness and justice.
• AL derives from the rule of law, Constitution, promotion Of Administrative Justice, and Chapter 9 institutions such as the Public Protector or SAHRC, as well as Ombuds' and Tribunals.
• It promotes conduct that is transparent, and consistent with laws.

Unit 2: Source of AL (Functions)

• AL advises that those in charge may authorize public powers or define the boundaries in which administrators may act.
• The principle of validity involves all public power that should be considered through AL and legality.

Principles

• Validity covers all public power, AL must be considered to make sense of this idea.

Legal Vs PAJA

• AL can regulate ALL or SOME public power in legislative or administrative or judicial instances, as per Section 1(c) of the Constitution, derived from judge made law.
• In contrast PAJA give effect to S 1c and S33 but that all power be lawful and is created through legislative action and is measured against the nature of all that it creates,
• As the supereme law of SA, the Constitution gives direct power to the organs of state, and can invalidate it should conduct be inconsistent with the way it ought to function through the organs.
• National legislative/powers must be vested (V44), along with the Powers of the National Council as specified in V68/76.
• Presidential Powers must be vested in accordance with Chapter Four.
• Legislative power allows for the implementation of legislation to be executed by the Premier (V125) but this is subject to constraints laid out in full in S100.
• A municipality must allow for the execution of authority with regard to Schedule 4 and 5 Part B (V167).
• At least 8 judges (from a total of judges being the Chief + Deputy Chief Justice + 9 = 11) may deal with the constitutional issue.

Electoral Commission/Human Rights

• AL is to manage fair elections (S190) that promote and maintain human rights in accordance with V184, while maintaining accountability.

Judiciary And Auditor Roles

• A court may not claim power, and that most be subject to constitutional authority (Pharamaceutial Case).
• Some cases involve floods, where settlements were setup as a remedy.
• There are various rights enshrined and the state must account for those subjects to Bill of Right stipulations.

Right To Information Limitations

• Those include enabling and related legislation (ie delegated).
• The law must be accessible.
• AL is capable of being enacted and is needed for modern government.
• While law is original and delegated regulations are needed, there are limitations.

Quasi Legislation

• Admin may issue policy with court acknowledgement, however, cannot supercede already written law.

Prerogrative Power

• Is supreme through royal charter, and can involve action by the president for those performing.

Constitution's Role

• It is the supreme law derived from 2000 pharmaceutical cases, meaning there is only one law to take information from.

Bill of Right Applications

• It is for any person to which a right or duty are imposed.
• This includes any aspect of the constitution.

As per 2008 Khayelitsha Ruling

• Authority was required to have independent authority.

Common Law

• There must be no particular authority on specific power.
• As per Kyalami Ridge case, government can use its availible funds to help those affected by natural disasters and as such that right is not beyond power.

Customary Law And The Constitution

• It must adhere to its codes and principles.

Estoppel

• Does not apply for illegal acts

AL Primary Sources:

• Common law
• Case law
• Constitution
• Legislation

General (Legal Principles)

• AL is subject to General AL and is derived through procedural fairness in the application of Section 33.
• Public processes must comply with POJA because of implications.

Governing the "What To Do"

• Admin action requires due consideration of related principles like: Validity and action of AL.
• There must be a description of the empowerment used to follow and apply by those who have been conferred the authority to act.
• The process must seek to see if it will work.

Governing all law

• There requires authorization of it and can include, the who, what questions.