Principles of Administrative Law Chapter 3 PDF

PRINCIPLES OF ADMINISTRATIVE LAW CHAPTER 3  Administrative action pre-Constitution Administrative action post Constitution but before PAJA L E AR N I N G Administrative action as defined in PAJA OUTCOMES ...

PRINCIPLES OF ADMINISTRATIVE LAW CHAPTER 3  Administrative action pre-Constitution Administrative action post Constitution but before PAJA L E AR N I N G Administrative action as defined in PAJA OUTCOMES  PAJA and section 33 of the Constitution regulate the right to just administrative action. Administrative Action is prerequisite for the R E C AP application of administrative law  ADMINISTRATION ACTION AND THE THREE PHASES the pre-constitutional period; the constitutional period prior to the enactment of PAJA; and, the constitutional period subsequent to the enactment of PAJA. PRE-CONSTITUTIONAL PERIOD During the pre-constitutional period, administrative law operated within the common-law tradition and a framework of parliamentary sovereignty. The power of judicial review under the common law derived from the courts’ inherent jurisdiction. In this period the meaning of administrative action was dominated by the question of the extent of the courts’ review powers over actions of the executive in implementing the mandate of the sovereign parliament acting as a restraining force of the ambit of administrative law  CONSTITUTIONAL PERIOD PRIOR TO THE ENACTMENT OF PAJA The primary source of administrative law was no longer the common law, but section 24 of the interim Constitution. Thus, the common law was not replaced but became a source of administrative law additional to and subject to the Constitution. The final Constitution, which entrenched the right to just administrative action in section 33. However, section 33 did not come into operation with the final Constitution. Item 23 of Schedule 6 to the Constitution provided that the right to just administrative action would be set out in Item 23(2)(b) of Schedule 6, temporarily. Section 33 would only become operational once national legislation giving effect to the right to just administrative action had been enacted. National legislation had to be enacted within three years. PAJA was enacted.  FROM INSTITUTIONAL TO FUNCTIONAL- SARFU JUDGMENT The Constitutional Court confirmed the predominance of a new approach to public power in the SARFU case; SARFU is central not only to the interpretation of section 33, but also to the operation of administrative law in general. Therefore one should note that administrative action is an incidence of the exercise of public power. The court had to determine the scope of ‘administrative action’ in response to the legal question: does the appointment of a commission of inquiry by the President, in terms of section 84(2)(f ) of the Constitution, qualify as administrative action?  SARFU JUDGMENT In determining the content of administrative action, the court notes that ‘[t]he administration is that part of government which is primarily concerned with the implementation of legislation’ and that the public administration forms part of the executive. Section 33 of the Constitution entrenches the right to just administrative action but does not amount to ‘a mere codification of common-law principles.’ Therefore, the constitutional meaning of administrative action is not limited to the common law. The court held that: what matters is not so much the functionary as the function. The question is whether the task itself is administrative or not.  ADMINISTRATIVE ACTION UNDER PAJA The definition of administrative action is found in section1 ( i) of PAJA The definition of administrative action in PAJA serves a key gatekeeping function. one can only approach a court for relief under PAJA if you can first show that the public conduct you wish to complain about amounts to administrative action as defined. Viewed differently, an administrator must only comply with the requirements set out in PAJA, for example the procedural steps set out in section 4 of the Act, when taking an action if that action will constitute administrative action.  ELEMENTS OF ADMINISTRATIVE ACTION In Minister of Defence and Military Veterans v Motau and Others the Constitutional Court identified the following seven elements: there must be (a) a decision of an administrative nature; (b) by an organ of state or a natural or juristic person; (c) exercising a public power or performing a public function; (d) in terms of any legislation or an empowering provision; (e) that adversely affects rights; (f) that has a direct, external legal effect; and (g) that does not fall under any of the listed exclusions.  DECISION OF AN ADMINISTRATIVE NATURE Includes a decision or a failure to take a decision The element of a decision implies a measure of finality in administrative action. Administrative law thus applies to an entire administrative process leading to a final decision as a whole. It does not apply in a piecemeal fashion to parts of the administrative process. This means that one cannot determine whether an administrative action is say procedurally fair by looking only at a part of the process leading to the decision. It also means that one cannot challenge the process in court before the final decision is taken. It is only once the final decision is taken that the process constitutes a complete administrative action and one can evaluate it against the requirements of PAJA.  DECISION WHICH ARE ADMINISTRATIVE IN NATURE The exercise of public power ‘of an administrative character’. Grey marine - the court held that ‘administrative powers usually entail the application of formulated policy to particular factual circumstances’ and that the ‘exercise of administrative powers is policy brought into effect, rather than its creation’  BY AN ORGAN OF STATE OR A NATURAL OR JURISTIC PERSON This element of the definition emphasises that administrative action is not only taken by public bodies, but also by private entities. This confirms the functional approach to the application of administrative law, PAJA defines ‘organ of state’ with reference to the definition of that term in section 239 of the Constitution. The constitutional definition includes, in addition to state departments, ‘any other functionary or institution... exercising a public power or performing a public function’. This already opens the door to non-public entities to be recognised as organs of state and hence come under the scope of the definition of administrative action in PAJA. The inclusion of actions of non-public entities is further strengthened by the addition of ‘natural or juristic person’ to the list of actors that can perform administrative action under PAJA.  EXERCISING A PUBLIC POWER OR PERFORMING A PUBLIC FUNCTION the nature of the action stands at the core of the definition of administrative action. Administrative action is thus action of a public nature. this puts the focus on what is being done rather than who is acting: a functional approach rather than an institutional one.  WHAT IS A PUBLIC POWER OR PUBLIC FUNCTION in Chirwa v Transnet Ltd and Others Langa CJ stated: ‘Determining whether a power or function is “public” is a notoriously difficult exercise. There is no simple definition or clear test to be applied.’ The Chief Justice continued to list a number of useful factors that can give one an indication of whether a particular power or function is public. These are: (a) the relationship of coercion or power that the actor has in its capacity as a public institution; (b) the impact of the decision on the public; (c) the source of the power; and (d) whether there is a need for the decision to be exercised in the public interest. No single one of these factors will on its own determine whether a particular action is public, but may in combination point in one direction or another.  IN TERMS OF A CONSTITUTION, ANY LEGISLATION OR AN EMPOWERING PROVISION Another key characteristic of administrative law is that it deals with delegated powers. In other words, it deals with the exercise of powers granted to the administrator by another authority in an instrument. There must be a source of for the decision For organs of state that source can be either a constitution (the national constitution or a provincial constitution) or legislation. For non-organs of state, that source can be an ‘empowering provision’, which has its own extremely wide definition in section 1(vi) and includes any ‘instrument or other document in terms of which an administrative action was purportedly taken’. Examples of empowering provisions may thus include the constitution of a voluntary association such as a political party or a church, the code of conduct of a school or university, circulars or practice notes issued by state departments as well as guideline documents and manuals.  THAT ADVERSELY AFFECTS RIGHTS An action that has the capacity to affect legal rights Rights afforded in terms of the law BoR contains rights, they may also be rights afforded in terms of other laws e.g common law Impact on rights must be adverse  THAT HAS A DIRECT, EXTERNAL LEGAL EFFECT Read along side with the 5th element the decision must be a final one. Not always the cases under particular circumstances, a decision may have adequate external effect and thus amount to administrative action even though further action is to follow. administrative conduct that is wholly internal to the administration does not qualify  THAT DOES NOT FALL UNDER ANY OF THE LISTED EXCLUSIONS The final part of the definition is a list of nine particular actions or action types that are expressly excluded from the definition of administrative action. The effect is that these decisions are not subject to PAJA. It thus does not matter whether these actions satisfy the preceding six elements of the definition.  THE EXCLUSIONS decisions classified as executive functions of the national executive decisions classified as executive functions at provincial level executive functions of the municipal council legislative functions of parliament judicial function of judicial officers Decision to institute prosecution Decision relating to the appointment of a judicial officer Decision in terms of PAIA decisions taken in terms of section 4(1) of PAJA. These are the choices made by administrators regarding which particular public participation process to follow in cases where the administrative action impacts on the public.  Thank you Mr Mokhosi mandela.ac.za