Prescribed Reading List for Administrative Law PDF

Administrative Law Course Code: PBL310 No. of Credits: 10 Reading materials (Unit 3) Meaning of Administrative Action Dr Felix Dube PRESCRIBED READING Geo Quinot (ed) Administrative Justice in South Africa: An Introduction (2021): Chapter 3, section 3.7. Constitution of the Republic of South Africa,...

Administrative Law Course Code: PBL310 No. of Credits: 10 Reading materials (Unit 3) Meaning of Administrative Action Dr Felix Dube PRESCRIBED READING Geo Quinot (ed) Administrative Justice in South Africa: An Introduction (2021): Chapter 3, section 3.7. Constitution of the Republic of South Africa, 1996. Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’): section 1 Cora Hoexter and Glenn Penfold Administrative Law in South Africa 3rd ed (2021): Chapter 4. SELECTED CASES TO BE DISCUSSED AND APPLIED TO SCENARIOS IN CLASS Introduction and general exclusions: Nell v Minister of Justice and Constitutional Development and Another (410/2006) ZAGPHC 265; 7 BLLR 716 (T); (2006) 27 ILJ 2063 (T) (2 February 2006) Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others (CCT7/98) ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October 1998) President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999) 1 Definition of administrative action narrow and convoluted Grey's Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and others 2005 (6) SA 313 (SCA) Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another (CCT 34/10) ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR 207 (CC) (23 November 2010) – para 37 footnote 41. A decision Sibiya v Director-General: Home Affairs and Others (13859/08) ZAKZPHC 6; 3 All SA 68 (KZN); 2009 (5) SA 145 (KZP) (18 March 2009) – para 13. Identity document issued but not delivered. What is not a decision? Formal or clerical acts Gamevest (Pty) Ltd v Regional Land Claims Commissioner for the Northern Province and Mpumalanga and Others (425/2001) ZASCA 117 (25 September 2002) - Mere receipt of a land claim does not amount to administrative action. Kuzwayo v Representative of the Executor in the Estate of the Late Masilela 2 All SA 599 (SCA) Signing a declaration to convert a site permit to the right of ownership and signing a deed of transfer to give effect to it. Plover's Nest Investment v De Haan (20590/2014) ZASCA 193 (30 November 2015) distinction between the decision of a municipal council and the mere communication of that decision by letter. Nedbank Ltd v Mendelow NO and Another (686/12) ZASCA 98; 2013 (6) SA 130 (SCA) (5 September 2013) Where the Master of the High Court and the Registrar of Deeds perform clerical acts that result in the registration of transfer of immovable property pursuant to a fraud, and there is no intention on the part of a beneficiary of a deceased estate to transfer ownership, registration does not effect a transfer of 2 ownership; the person in whose name the property is registered is not the owner and cannot grant a valid mortgage bond over the property. Purely clerical acts do not amount to administrative action reviewable under the Promotion of Administrative Justice Act 3 of 2000. Maleka v Health Professions Council of SA (ECJ 2004/051) ZAECHC 38; 4 All SA 72 (EC) (28 October 2004) whether correction of an entry made as a result of a computer error by removing the entry to the register in the category public service (general practitioners), which confers a more restricted right to practice, is administrative action within the meeting of the Promotion of Administrative Justice Act No 3 of 2000. Operation by law Cases in which events take place by operation of law entail = no decision Minister van Kultuur en Onderwys v Louw 1995 (4) SA 383 (A) deemed discharged. No decision See also Phenithi v Minister of Education 2008 (1) SA 420 (SCA) – no decision And also, Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) Maswanganyi v Minister of Defence and Military Veterans 2020 (4) SA 1 (CC) reversal of termination of employment by operation of law when essential jurisdictional facts fell away. But compare with Armbruster and Another v Minister of Finance and Others (CCT 59/06) ZACC 17; 2007 (6) SA 550 (CC); 2007 (12) BCLR 1283 (CC) (25 September 2007) Does forfeiture of currency by operation of law constitute administrative action? Preparatory steps Competition Commission v Yara (SA) (Pty) Ltd 2013 (6) SA 404 (SCA) Preparatory steps in an investigative process do not constitute administrative action Commissioner: SARS v Brown ZAECPEHC 17 (5 May 20116) 3 request by SARS by lifestyle questionnaire is a preliminary investigation and does not amount to administrative action But compare with Weir-Smith NO v Master of the High Court of South Africa, Gauteng Division, Pretoria ZAGPPHC 541 (25 September 2020) decision to compel trustees to deliver a range of documents under constituted administrative action. Offit Enterprises (Pty) Ltd v Coega Development Corporation 2010 (4) SA 242 (SCA) PAJA does not encompass future administrative action in the sense of 'something that has not yet happened and may not ever happen, and if it does happen, may take place in a different legislative and economic environment. Nor could it be argued that officials had 'failed to take an expropriation decision, the possibility of which they were blissfully unaware until litigation commenced. Administrative rulemaking New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang 2005 (2) SA 530 (C) regulations could not be regarded as a decision. But compare with Constitutional Court with dictum by Chaskalson in which he seemed to suggest that such regulations are administrative action. This approach has been endorsed in the following cases: Esau and Others v Minister of Cooperative Governance and Traditional Affairs City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd Minister of Health and Another v Alliance of Natural Health Products (South Africa) Miscellaneous non-decision Mzamba Taxi Owner's Association v Bizana Taxi Association the endorsement of an agreement between minibus taxi associations and the provincial taxi registrar does not amount to administrative action. Emakhasaneni Community v Minister of Rural Development and Land Reform 2019 (4) SA 286 (LCC) 4 notice to landowners setting out the amount of compensation as determined by the Office of the Valuer-General does not constitute an administrative decision. Bhugwan v JSE Limited (08/32943) ZAGPJHC 33; 2010 (3) SA 335 (GSJ) 2010 (3) SA 335 (GSJ) (31 July 2009) All or at least some of the following steps must have been completed in the decision-making process: 1. Save where an authority legitimately acts cohesively or of its own accord, a final application, request or claim must have been addressed by a subject to an authority which exercises statutory or public powers to exercise those powers in relation to a set of factual circumstances applicable to the subject; 2. All relevant information, either presented by the subject or otherwise reasonably available, must have been gathered (which may require an investigative process) and placed before the authority which is to make the decision; 3. There must have been an evaluative process where the authority considers all of the information before him or her, identifies which components of such information are relevant and which are irrelevant and in which the authority assigns, through a process of value judgments, a degree of significance to each component of the relevant information, regard being had to the relevant statute or other empowering provision in terms of which the authority acts; 4. A conclusion must have been reached by the authority, pursuant to the evaluative process, as to how his or her statutory or public power should be exercised in the circumstances; and 5. There must have been an exercise of the statutory or public power based on the conclusion so reached. A decision must be of an administrative nature New Clicks – 'of an administrative nature' encompasses regulation-making within the scope of the definition of 'decision'. – read with s 4 of PAJA. Sokhela v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) 2010 (5) SA 574 (KZP) 5 The purpose of the requirement 'of an administrative nature'. Bernstein and Others v Bester NO and Others (CCT23/95) ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996 investigation not intended to make a final, binding decision. Competition Commission of South Africa v Telkom SA Ltd 2 All SA 433 (SCA) a decision of the Competition Commission to refer a matter to the Competition Tribunal of an investigation is not of an administrative nature. Public procurement Umfolozi Transport (Edms) Bpk v Minister van Vervoer 2 All SA 548 (A) Does the award of state tender amount to administrative action? Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA) administrative-justice rights applicable to the tender process Logbro Properties CC v Bedderson NO 2003 (2) SA 460 (SCA) State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA) Does contracting without a tender by the state constitute administrative action? Steenkamp v Central Energy Fund SOC Ltd 2018 (1) SA 311 (WCC) Several High Court judgments have found that the removal of directors of stateowned entities constitutes administrative rather than executive action. AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency 2014 (1) SA 604 (CC) Putco Ltd v Minister of Transport of the Republic of South Africa JDR 0484 (W) the decision to discontinue the tender process for the supply of subsidised busses was of an administrative nature. But compare with Tshwane City v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA) 6 Does withdrawal of tender before adjudication not amount to administrative action if services are no longer needed? HOD, Mpumalanga Department of Education v Valozone 268 CC ZASCA 30 (29 March 2017) But if services are still needed but you just want to change the terms of the tender - amounts to administrative action C & M Fastners CC v Buffalo City Metropolitan Municipality 2019 JDR 0498 (ECG) If the tender was cancelled just because the municipality thought there were no compliant tenders – an irregular finding – cancellation is administrative action? Does licencing constitute administrative action? Lebowa Granite (Pty) Ltd v Lebowa Mineral Trust 1999 (4) SA 375 (T) Awarding a licence to one amid application by many is similar to the award of a tender. Commissioner, South African Police Service v Maimela 2003 (5) SA 480 (T) Refusal to grant a firearm licence? Magingxa v National Commissioner, South African Police Service 2003 (4) SA 101 (TkH) revocation of a firearm licence Decision to remove a person from an approved panel Motala v Master, North Gauteng High Court 2019 (6) SA 68 (SCA) Public Protector and Auditor-General Minister of Home Affairs v Public Protector 2018 (3) SA 380 (SCA) remedial action of the Public Protector does not constitute administrative action. MEC for Economic Opportunities, WC v Auditor-General 2021 (1) SA 455 (WCC) decision of the AGSA amounts to administrative action – Auditor-General forms part of the public administrations; its function is to administer (by auditing organs of state); and it does not have broad discretionary powers 7 Decisions must be made under an empowering provision Under a law, rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action. But 'instrument' does not seem to cover those of a contractual nature. Ultra vires decisions do not constitute administrative action because they lack an empowering provision – Marais v Democratic Alliance.411 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC) a decision is binding until set aside. 2. BY AN ORGAN OF STATE (OR A NATURAL OR JURISTIC PERSON) Function and not the functionary: AMCU v Chamber of Mines of South Africa 2017 (3) SA 242 (CC) The predominant focus is on the nature of the power being exercised. The question is not so much who exercises the power, nor even where does the power come from: but what does the power look and feel like? What does it do? AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC) whether power or function is public and not to equate this with whether or not the power or function is governmental. City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd 2015 (6) BCLR 660 (CC) performed a public function in distributing electricity to the local community if it was a private company established by the City of Johannesburg. Airports Company South Africa v ISO Leisure (Pty) Ltd 2011 (4) SA 642 (GSJ) the definition of 'decision' implies a determination of a final and definitive result or conclusion... there must be finality in the decision sought to be impugned for it to fall within the scope of PAJA Powers exercised by public bodies in a private-law setting Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC 2001 (3) SA 1013 (SCA) 8 cancellation of contract under common law. Municipality not exercising public power. Tlokwe Local Municipality v Gqweta 2018 JDR 0519 (GP) Public power not engaged when a municipality cancels a tender? Associated Portfolio Solutions (Pty) Ltd v Basson 2021 (1) SA 341 (SCA) a private financial service provider wielded public power when it exercised its authority under section 14(1) of the Financial Advisory and Intermediary Services Act 37 of 2002 Mobile Telephone Networks (Pty) Ltd v SMI Trading CC 2012 (6) SA 638 (SCA) A decision by the licensee to invoke section 22 of the Electronic Communications Act 36 of 2005 was public and constituted administrative action – Private entities exercising regulatory powers Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange 1983 (3) SA 344 (W) non-statutory bodies under a duty to act in the public interest Cronje v United Cricket Board of South Africa 2001 (4) SA 1361 (T) voluntary bodies not exercising public power. Ndoro v South African Football Association 2018 (5) SA 630 (GJ) Do sporting bodies exercise public powers? Coetzee v Comitis 2001 (1) SA 1254 (C) The National Soccer League performs a public function and must act in the public interest. Brandhouse Beverages (Pty) Ltd v Advertising Standards Authority of South Africa 2015 JDR 0832 (GP) Decisions of the Advertising Standards Authority of South Africa constitute administrative action - even though ASA is a voluntary association, it is the official regulatory of the advertising industry and, therefore, must act in the public interest. Political parties? 9 Dube v Zikalala 4 All SA 365 (KZP) Generally, decisions of political parties not administrative action. Private, voluntary. See also Marais v Democratic Alliance 2002 (2) BCLR 171 (C): There is a public interest in the decisions of political parties, but they are not administrative action. But compare with: Van Zyl v New National Party 3 All SA 737 (C) decision to recall a delegate at the National Council of Province administrative action. 3. IN TERMS OF ANY LEGISLATION OR IN TERMS OF AN EMPOWERING PROVISION M & G Media Ltd v 2010 FIFA World Cup Organising Committee South Africa Ltd 2011 (5) SA 163 (GSJ). 'in terms of legislation' capable of meaning something wider than functions specifically authorised by legislation, and could thus encompass functions performed 'in accordance with legislation.'. 4. THAT ADVERSELY AFFECTS RIGHTS Harvey v Umhlatuze Municipality 2011 (1) SA 601 (KZP) the applicant had no right to reclaim and repurchase properties that had been expropriated from him for a particular purpose and which the municipality now intended to use for a new purpose by disposing of them en block. Earthlife Africa v Minister of Energy 2017 (5) SA 227 (WCC) ministerial determines that 9600MW of new generation capacity would be sourced from nuclear energy adversely affected the rights of non-nuclear power producers. 10