Administrative Law Exam Revision (PRAL6222 / PRAL6212)

Comprehensive practice flashcards covering constitutional supremacy, PAJA procedural fairness (s 3), written reasons (s 5), grounds of judicial review (s 6), remedies, case law (SARFU, Bato Star, Trencon), and exam mnemonics for South African Administrative Law.

Under the pre-1994 South African legal system, what was the constitutional framework and basis for administrative control?

It was based on common law and parliamentary sovereignty with no supreme law. Judicial control came only from ultra vires, audi alteram partem, and legality, while the classification of functions made "pure" administrative action unreviewable.

What significance did Section 24 of the 1993 Interim Constitution hold for South African administrative law?

It provided the first codified right to administrative justice in South Africa.

What administrative justice rights are guaranteed under Section 33(1) and Section 33(2) of the 1996 Constitution?

Section 33(1) guarantees administrative action that is lawful, reasonable, and procedurally fair. Section 33(2) guarantees written reasons to anyone whose rights have been adversely affected by administrative action.

What role does the Promotion of Administrative Justice Act (Act 3 of 2000) (PAJA) play in constitutional administrative law?

It was enacted to give effect to Section 33(3) of the Constitution. It codified the grounds of judicial review and serves as the ordinary cause of action (as affirmed in Bato Star).

According to the notes, what three reasons explain why the pre-1994 administrative law system failed?

(1) There was no supreme law; (2) formalistic labels shielded unjust acts (such as pass laws and forced removals); and (3) good procedure cannot fix unjust laws.

What mnemonic is used to remember the seven elements of administrative action under Section 1(i) of PAJA?

DO PEACE.

Under the "DO PEACE" mnemonic, what does the first element represent, and what quality must it possess?

Decision (or failure to decide), which requires finality.

What do the second, third, and fourth elements of administrative action under "DO PEACE" require?

Element 2: An Organ of state or natural/juristic person. Element 3: The exercise of Public power or performance of a Public function. Element 4: An Empowering provision (legislation or Constitution).

What do elements 5, 6, and 7 of the "DO PEACE" definition of administrative action entail?

Element 5: Adversely affects rights. Element 6: DireCt, external legal effect (excluding internal or preparatory steps). Element 7: Exclusions do not apply.

How do the exclusions listed under PAJA Section 1(i)(aa)–(ee) differ from those listed under (ff)–(ii)?

Subsections (aa)–(ee) are based on the separation of powers (bill assent, Cabinet, legislative rules, judicial functions), whereas (ff)–(ii) are based on pragmatic grounds (prosecution, Judicial Service Commission, PAIA, Section 4(1) procedure choice).

What is the primary critique of Element 5 ("adversely affects rights") in Section 1(i) of PAJA?

If read literally, it excludes decisions that only grant rights, and it improperly imports the narrower Section 33(2) constitutional qualifier into Section 33(1).

What general test and mnemonic are used to determine whether conduct is administrative action?

The test is function, not functionary, guided by the mnemonic SNS + P: Source, Nature, Subject matter, and Policy formulation vs implementation.

How does executive action differ from administrative action, and what case illustrates administrative action at a ministerial level?

Executive action concerns policy formulation and political matters (SARFU). Administrative action consists of implementing law with external effect, as illustrated in Ed-U-College (a subsidy refusal, even at ministerial level, is administrative implementation).

How are legislative rule-making and contract cancellations classified under administrative law?

Legislative action consists of an elected body making rules (Fedsure). Contract cancellation is generally not administrative action (Thabiso, Cape Metropolitan).

If governmental conduct is classified as "not administrative action", does this mean it cannot be reviewed?

No; "not administrative" does not mean "not reviewable", because the constitutional principle of legality still applies.

What three threshold requirements trigger procedural fairness under Section 3(1) of PAJA?

(1) It affects a person specifically (including juristic persons, not a general public effect); (2) the effect is material and adverse (unless trivial); and (3) it affects rights or legitimate expectations.

According to NDPP v Phillips, what specific qualities must a promise possess to establish a legitimate expectation?

The promise must be clear, unambiguous, unqualified, made by the decision-maker, and lawful.

What are the five minimum mandatory requirements for procedural fairness under Section 3(2)(b) of PAJA?

(1) Adequate notice of the nature and purpose of the proposed action; (2) reasonable opportunity to make representations; (3) clear statement of the action; (4) notice of the right of review or internal appeal; and (5) notice of the right to request reasons.

Under Section 3(3) of PAJA, what discretionary procedural components may be provided in serious or complex cases?

Assistance and legal representation, presenting and disputing information, and appearing in person.

What standard and five factors govern departure from procedural fairness requirements under Section 3(4) of PAJA?

Departure must be reasonable and justifiable, considering: (1) objects of the empowering provision; (2) nature and purpose of, and need for, the action; (3) likely effect; (4) urgency; and (5) need for efficient administration and good governance.

What four requirements must be satisfied for a "fair but different" procedure to be valid under Section 3(5) of PAJA?

(1) It must be in the empowering provision; (2) it must differ from Section 3(2); (3) it must still be fair; and (4) it must actually be followed.

What procedural avenues are available under Section 4 of PAJA when administrative action affects the public at large?

A public inquiry, a notice-and-comment procedure, both, a different procedure prescribed by the empowering provision, or any other procedure giving effect to Section 3 (with New Clicks emphasizing public participation for wide-impact decisions).

In the taxi problem answer skeleton, why was the MEC's route closure classified as administrative action?

Because while the Gauteng Freeway Loop (GFL) is policy, closing specific routes is implementation of law with direct external effect on JCTA's rights ($1\,500$ jobs and livelihoods), following Ed-U-College.

In the taxi problem skeleton, what was the review ground and what is the standard judicial remedy?

Ground: Procedurally unfair administrative action under Section 6(2)(c). Remedy: Set aside the decision and remit it (substitution under Section 8(1)(c)(ii)(aa) is only granted in exceptional circumstances).

Why are adequate written reasons required under Section 33(2) of the Constitution and Section 5 of PAJA?

To promote accountability, transparency, and rationality; to protect human dignity; to allow the affected person to assess whether to challenge the decision; and to enable effective judicial review.

Under Section 5(1) and Section 5(2) of PAJA, what are the statutory timeframes for requesting and furnishing reasons?

The affected person must request reasons in writing within $90\text{ days}$ of becoming aware of the action, and the administrator must furnish adequate written reasons within $90\text{ days}$ of receiving the request.

What presumption arises under Section 5(3) of PAJA if an administrator fails to provide adequate written reasons?

There is a rebuttable presumption that the administrative action was taken without good reason.

According to the notes (citing Currie), what judicial remedy is available if an administrator fails to supply reasons under PAJA?

A court order compelling the administrator to furnish adequate reasons.

What six factors govern a reasonable and justifiable departure from the duty to give reasons under Section 5(4) of PAJA?

(1) Objects of the empowering provision; (2) nature, purpose, and effect of the action; (3) nature and extent of the departure; (4) relation between the departure and its purpose; (5) importance of the purpose; and (6) efficient administration and good governance.

What were the core facts of the Constitutional Court case President of the RSA v SARFU?

President Mandela appointed a commission of inquiry into rugby administration under Section 84(2)(f) of the Constitution; SARFU and Louis Luyt challenged the decision, and the High Court subpoenaed the President to give oral evidence.

In SARFU, why was President Mandela's appointment of a commission of inquiry not subject to Section 33 or PAJA?

It was held to be an executive function rather than administrative action, meaning there was no duty under Section 33 or PAJA to afford a hearing.

Under SARFU, by what standard is executive presidential conduct reviewed, and when can a President be compelled to testify?

Executive conduct is reviewable under the principle of legality (must be rational, taken in good faith, and within authority). Due to the separation of powers, a sitting President can be compelled to testify only in exceptional circumstances.

What recusal test was articulated by the Constitutional Court in SARFU?

Whether a reasonable, objective, and informed litigant would reasonably apprehend bias on the part of the judicial officer.

What doctrinal impact did SARFU have, and what critique does Cora Hoexter raise against it?

Impact: It entrenched the functional approach (source, nature, subject matter), established the executive/administrative divide, and fortified legality. Critique: The divide fosters the gatekeeping formalism that Hoexter criticizes.

What does Section 2 of the 1996 Constitution state regarding supremacy, and what is its legal importance?

The Constitution is the supreme law; law or conduct inconsistent with it is invalid, and obligations imposed by it must be fulfilled. It replaced parliamentary sovereignty, founded the rule of law and legality (establishing one single system of law per Fedsure and Pharmaceutical Manufacturers), and empowers judicial review.

How does Section 8 of the cheat sheet define administrative law?

The law regulating the exercise of public power and public functions by organs of state and others, which both controls and facilitates administration.

What are the three branches of state authority listed in Section 3.3 of the cheat sheet?

The Legislature, executive, and judiciary.

Which grounds of review correspond to PAJA Section 6(2)(a)(i), (a)(ii), and (a)(iii)?

(a)(i) Unauthorized administrator; (a)(ii) unauthorized delegation; and (a)(iii) bias.

What review grounds are codified in PAJA Section 6(2)(b) and Section 6(2)(c)?

Section 6(2)(b) covers failure to comply with a mandatory and material procedure; Section 6(2)(c) covers procedurally unfair administrative action.

What review grounds correspond to Section 6(2)(d) and Section 6(2)(e)(i)/(ii) of PAJA?

Section 6(2)(d) is error of law; Section 6(2)(e)(i)/(ii) is action taken for an unauthorized reason or an ulterior purpose.

What review grounds correspond to PAJA Section 6(2)(e)(iii), (e)(iv), (e)(v), and (e)(vi)?

(e)(iii) Irrelevant considerations (and mistake of fact); (e)(iv) dictation; (e)(v) bad faith (requires dishonesty); and (e)(vi) arbitrary or capricious action.

What grounds of review are set out in PAJA Section 6(2)(f)(i), (f)(ii), (g), (h), and (i)?

(f)(i) Action not authorised; (f)(ii) irrational action; (g) failure to decide; (h) unreasonable action; and (i) the catch-all ground (including vagueness).

Under the rationality ground (Section 6(2)(f)(ii)), what four required connections are represented by the mnemonic "2P + I + R"?

A rational connection between the action and: (1) Purpose of the action; (2) Empowering Purpose; (3) Information before the administrator; and (4) Reasons given.

What six factors does the mnemonic "NERRIL" represent in testing unreasonableness under Bato Star?

Nature of the decision, Expertise of the decision-maker, Range of factors, Reasons given, Interests involved, and Life impact (impact on those affected).

What do the administrative review mnemonics "AUB" and "DARF" stand for?

"AUB" stands for Authorised reason absent, Ulterior purpose, and Bad faith. "DARF" stands for failure to Decide, Act timeously, Relevant/irrelevant considerations, and Fettering.

What do the mnemonics "NOT-C" and "AAA-E" represent in administrative law practice?

"NOT-C" represents grounds for irregular authority: Not properly constituted (Simelane), Overstepping (Kwakwa), Correct authority elsewhere validates (Pinnacle Point). "AAA-E" tests whether an internal remedy exists in Another law, is Available, is internal (Applicable), and is Effective.

What do the mnemonics "PSCCL" and the "PB chain" describe?

"PSCCL" lists the five review avenues: PAJA, Special statute, direct Section 33, Common law, Legality. The "PB chain" describes the doctrinal path from Pharmaceutical Manufacturers (establishing one unified system of law) to Bato Star (establishing PAJA as the ordinary cause of action).

What are the rules regarding review time limits under Section 7(1) and internal remedies under Section 7(2) of PAJA?

Review must be brought within $180\text{ days}$ (Section 7(1)). An applicant must exhaust internal remedies first (Section 7(2)(a)), unless granted an exemption for exceptional circumstances plus interests of justice under Section 7(2)(c) (Koyabe clarifies a missed deadline is not automatically exceptional).

How is legal standing treated under PAJA Section 6(1) and Constitution Section 38 pursuant to Giant Concerts?

Standing is kept separate from the merits. Applicants should always plead both Section 38(a) (acting in their own interest) and Section 38(d) (acting in the public interest).

What four-factor test governs judicial substitution under Section 8(1)(c)(ii)(aa) of PAJA according to Trencon?

(1) The court is as well placed as the administrator; (2) the outcome is a foregone conclusion; (3) remittal would be pointless; and (4) fairness favours substitution (all requiring exceptional circumstances).