ADL

What are the three founding principles of administrative law in South Africa?

What are the three founding principles of administrative law in South Africa?

the supremacy of the Constitution, the rule of law, and requirements of accountability, responsiveness, and openness.

What does the 'culture of justification' refer to in South African administrative law?

The culture of justification requires state administration to justify any infringement of fundamental rights and freedoms, including the right to just administrative action.

What legislation specifically deals with principles of administrative law and just administrative action in South Africa?

Constitution and the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

What does the case of Economic Freedom Fighters v Speaker of the National Assembly emphasize?

The case emphasizes the importance of the rule of law and accountability as means to break away from the unchecked abuse of state power, as seen in the apartheid era.

What doctrine continues to play an important role in administrative law and is attributed to English law?

The doctrine of trias politika, or the separation of powers, continues to play an extremely important role and is attributed to English law.

What is the judiciary's limitation when it comes to supervisory power, according to Klaaren?

The judiciary has the power to say "no" but has little power to say "yes." It is equipped to listen and decide, but not to command, supervise, order, devise, and implement.

What does the term "state" refer to in the context of administrative law?

The term "state" serves as a collective noun describing the totality of entities endowed with public authority, including the executive, legislature, judiciary, and police.

What are the dual functions of the executive in the realm of administrative law?

The executive is primarily concerned with formulating policy and initiating legislation, and secondly with the implementation of policy and legislation.

What does "administrative action" usually refer to in the context of the executive?

Administrative action often refers to the implementation of policy and legislation by the administrative part of the executive, not the formulation of policy.

What role does the judiciary play in administrative law?

The judiciary acts as a control over the state administration by ensuring it adheres to the requirements of administrative justice in terms of section 33 of the Constitution.

What is the basis for judicial review in administrative law?

Judicial review is based on the concept that the exercise of power in question must constitute "administrative action" under the Promotion of Administrative Justice Act (PAJA).

What is "trias politika" and why is it relevant to administrative law?

Trias politika" refers to the separation of powers among the judiciary, executive, and legislature. It is relevant because each branch has specific functions and limitations, and administrative law often revolves around the interplay between them.

What is the general description of administrative law?

Administrative law is that area of public law which regulates the exercise of powers and performance of public functions by an organ of state to comply with the requirements of the right to just administrative action under section 33 of the Constitution.

Who can perform 'public functions' or exercise 'public powers'?

Not just public administrators within the definition of an organ of state, but any entity, private or public, whose actions affect the public can perform 'public functions' or exercise 'public powers'.

What is the principle of legality?

The principle of legality is an incident of the rule of law, and it dictates that the exercise of all public power, constitutional or administrative, is subject to judicial review and must conform to the prescripts of the Constitution.

What are the cornerstone democratic values mentioned in Section 7(1) of the Constitution?

Human dignity, equality, and freedom are the cornerstone democratic values mentioned in Section 7(1) of the Constitution.

What are the three ARO requirements for democratic governance?

Accountability, Responsiveness, and Openness (ARO) are essential for democratic governance.

What does accountability mean in administrative law?

Accountability in administrative law means that public officials and all organs of the state must apply and uphold the democratic principles of the Constitution.

Which court has the jurisdiction to decide if Parliament or the President have failed to fulfill a constitutional obligation?

Only the Constitutional Court has the jurisdiction to decide that, as per section 167(4)(e) of the Constitution.

What does Section 195(1)(e) of the Constitution state about government responsiveness?

Section 195(1)(e) states that one of the basic values governing public administration is that the needs of the people must be responded to and the public must be encouraged to participate in policy-making.

How is transparency achieved in administrative law?

Transparency is achieved through the constitutional right to reasons for administrative action in section 33(2), ensuring legality and opening decisions up for public scrutiny.

What is the role of the judiciary when the executive abuses or mismanages their power?

The judiciary may intervene only if the executive abuses or mismanages their power, but they can't interfere simply because they dislike the means selected by the executive.

What is the relationship between constitutional law and administrative law?

Both are grounded in public law. Administrative law is often described as a specialized branch of constitutional law.

What is the distinction between general and specific administrative law?

General administrative law applies to everyone and has rules of general application, whereas specific administrative law pertains to specialized principles required for certain areas like labor relations.

How did administrative law function under the pre-Constitution dispensation?

Under the pre-Constitution system in South Africa, the state administration was authoritarian, focused on maintaining power through racial discrimination and law and order.

What changes did the new constitutional dispensation bring to administrative law?

The new democratic order replaced the repressive apartheid system, emphasizing individual rights and the rule of law. It introduced the Bill of Rights which includes the right to just administrative action.

What does Section 33 of the Constitution state about administrative action?

Section 33 states that everyone has the right to administrative action that is lawful, reasonable, and procedurally fair. It also mandates that national legislation be enacted to give effect to these rights.

What is the role of the courts, especially the Constitutional Court, in safeguarding administrative justice?

The courts, and particularly the Constitutional Court, act as custodians of fundamental rights and watchdogs of the Constitution. They have the authority to declare any law or conduct inconsistent with the Constitution invalid.

What are the grounds for judicial review of administrative action?

Judicial review of administrative action is guided by Section 6 of PAJA, which codifies common-law grounds for review.

Can one avoid PAJA and rely directly on Section 33(1) of the Constitution or the common law for judicial review?

No, a litigant cannot go behind PAJA to rely on Section 33(1) of the Constitution or the common law for judicial review.

When should one apply for judicial review under PAJA vs the principle of legality?

Judicial review under PAJA is the primary path for challenging unlawful administrative action. The principle of legality is applied only when the exercise of public power does not qualify as 'administrative action' under PAJA.

What complexities have arisen from the definition of 'administrative action' in PAJA?

The definition of 'administrative action' is detailed and has been widely criticized. It is difficult to apply consistently due to its multifaceted nature.

What does 'administrative action' mean as defined by PAJA?

Administrative action' refers to any decision by an organ of state performing a public function that adversely affects individual rights. The definition is complex and excludes certain executive, legislative, and judicial functions.

What is the principle of legality and how is it related to PAJA?

The principle of legality is derived from the South African Constitution and acts as a supplement to PAJA for judicial review of administrative action. It allows for more flexibility compared to the formal confines of PAJA.

What is the basic nature of the administrative-law relationship?

The administrative-law relationship is based on inequality between the individual and the state authority or exercise of public power. The state is in a position of authority while the individual is in a position of subordination.

What rights does an aggrieved person have in the face of administrative action?

An aggrieved person may rely on the principles of just administrative action to contest the validity of an administrative act or decision.

What is the focus of judicial review in administrative law?

The focus is not on whether the administrator's decision was right or wrong but on the process and manner in which the decision was reached.

What happens if an action does not fall under administrative action as per PAJA?

If an action is excluded by one of the provisions in PAJA, it is still subject to judicial review based on the principle of legality.

What is the doctrine of the separation of powers?

It's a doctrine to prevent the concentration of too much power in any one branch of government. It separates judicial functions from legislative or executive functions.

What is the traditional role of High Courts in the judicial review of administrative action?

The High Courts have traditionally been responsible for the judicial review of administrative action. This role is considered effective and vital for controlling administrative action.

What is the main difference between public and private law?

Public law protects the interests of the community. Private law protects the interests of the individual.

How has the definition of an 'organ of state' been expanded in PAJA?

The definition now includes natural and juristic persons. This expansion accommodates the privatization of public functions or outsourcing to private bodies.

What is the central duty of an administrator exercising public power?

The central duty of an administrator exercising public power is to act in the public interest, rather than for private gain.

What is the primary definition of a public power or function?

allocated to the state by the Constitution or by ordinary legislation

What does the term 'administrator' or 'organ of state' include?

It is not confined to public officials or state departments; it extends to functionaries, institutions, and persons who are authorized to act on behalf of the state.

What is the difference between empowering legislation and prescriptive legislation?

Empowering legislation grants powers to the administration to execute a function or exercise a power. Prescriptive legislation, like PAJA, mandates the steps and procedures administrators must follow.

How was the power distributed among the executive, parliament, and judiciary in the pre-constitutional era regarding administrative law in South Africa?

Power was predominantly held by the parliament and executive, often sidelining the judiciary and aligning with a state-based executive-minded policy.

What is the implied principle regarding the exercise of power by the Legislature and Executive, as per the document?

The Legislature and Executive are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law, aligning with the principle of legality embedded in the constitutional order.

What is identified as the sole regulator of administrative law, negating the dual-system theory?

The Constitution is identified as the singular system regulating administrative law, rejecting the presence of two systems (common law and the Constitution).

Where does the power to review administrative action originate according to the discussed principles?

The power to review administrative action originates from PAJA and the Constitution, not directly from common law.

In the context of administrative law, what serves as the grundnorm, and where is it located?

The grundnorm of administrative law is located in the principles of the Constitution.

How is the relevance of common law to administrative review determined and developed?

The relevance of common law is determined and developed on a case-by-case basis, as courts interpret and apply the provisions of PAJA and the Constitution.

How does PAJA relate to the codification of grounds for judicial review of administrative action?

PAJA attempts to codify the grounds for judicial review of administrative action but does not encapsulate all common-law powers of review.

What right is entrenched in Section 33 of the Constitution with regards to administrative action?

Section 33 of the Constitution entrenches the right to administrative action that is lawful, reasonable, and procedurally fair.

Which two values or principles are highlighted as pertinent to the promotion and development of administrative law in a constitutional democracy?

Batho Pele and ubuntu are identified as pivotal values/principles in promoting and developing administrative law in a constitutional democracy.

Name some key attributes associated with the right to just administrative action under section 33 of the Constitution?

Key attributes include legality, guaranteed justice, prospective nature, entitlement to written reasons for actions, and alignment with PAJA and Constitutional principles.

What is the relevance of English law principles in South Africa's administrative law?

South Africa has retained vital principles from English law in its administrative law, influencing judicial review processes and legislative actions within its constitutional dispensation.

How does the supremacy of parliament operate within the constraints of South Africa’s constitutional order?

Although the parliament holds significant power, its supremacy is regulated and constrained by adherence to both common-law and constitutional principles, ensuring a balanced and lawful exercise of power.

What purpose does judicial review serve in the context of South African administrative law?

Judicial review in South Africa serves to regulate the exercise of public power, ensuring that legislative and executive actions comply with constitutional and common-law principles, and consequently, uphold the rule of law.

What sub-concepts are encompassed within the rule of law principle in South African constitutional dispensation?

The rule of law encompasses various sub-concepts including faithful execution of laws, reasonable access to courts, upholding the principle of innocence until proven guilty, ensuring non-arbitrary exercise of power, and applying laws equally, among others.

Define the constitutional principle of legality in the context of South Africa’s Legislature and Executive actions.

The constitutional principle of legality mandates that the Legislature and Executive can only exercise power and perform functions that are explicitly conferred upon them by law, adhering to both explicit and implicit constitutional directives.

How is the principle of legality applied in administrative actions as per South Africa’s constitution?

In instances involving administrative action, the principle of legality is explicitly enshrined in the Constitution, dictating that all administrative actions must adhere to lawfulness and constitutional compliance.

How does the application and significance of the rule of law and principle of legality in South Africa relate to its global counterparts?

South Africa, similarly to its global counterparts like Canada and Germany, universally applies and acknowledges the rule of law and principle of legality, ensuring governmental actions comply with the law, including the Constitution, reflecting a globally shared constitutional value.

How does the Constitution impact the exercise of public power in terms of legality?

The Constitution regulates the exercise of public power by ensuring it complies with established legal principles, most notably the principle of legality, to safeguard against the abuse or misapplication of power.

What does the principle of legality state concerning the retrospective exercise of public power?

The principle of legality, embraced by administrative law, opposes retrospectivity, especially where the exercise of public power affects rights and legitimate expectations, as it undermines the constitutional principle of the rule of law.

What role does the principle of legality play in the review of state organ decisions?

The principle of legality holds that the exercise of public power, including decision-making by state organs, must align with legal principles, and if it is at variance, it can be reviewed and possibly set aside as being inconsistent with the Constitution.

How does the rule of law serve as a foundation in administrative law?

The rule of law, which encompasses the principle of legality, is foundational to administrative law by ensuring that all administrative actions, particularly those affecting rights or expectations, are bound by and comply with existing laws.

What limitation does the principle of legality impose on state functionaries and public authorities?

The principle of legality mandates that state functionaries and public authorities can only exercise powers and perform functions that have been legally conferred upon them, ensuring adherence to the constitutional dispensation.

How does PAJA relate to the principle of legality in terms of judicial review?

PAJA codifies common law rights of judicial review and seeks to provide a framework for just administrative action. However, the principle of legality extends the scope of judicial review and its application, particularly where PAJA ought to be applied, is a subject of ongoing jurisprudential debate.

What is the primary role of the Constitution 1996 in the context of administrative power in South Africa?

The Constitution 1996 serves as the foundational source and regulator of administrative power in South Africa, ensuring its exercise is lawful, reasonable, and procedurally fair.

How does PAJA relate to Section 33 of the Constitution concerning judicial review of administrative action?

PAJA acts as a primary gateway to judicial review, codifying the grounds for it, and it doesn’t replace or amend Section 33 but rather gives effect to the right to administrative action that is lawful and procedurally fair.

Under what conditions can a litigant bypass the legislation and directly rely on the Constitution?

A litigant may bypass legislation and rely directly on the Constitution if they can convincingly argue that the legislation does not sufficiently "give effect to" the constitutional right or it is unjustifiably limited.

What are the key elements required to determine whether an action qualifies as administrative action?

An action is considered administrative if it is a decision of an administrative nature by a state or entity, affecting rights and having direct, external legal effect, among other criteria, and doesn’t fall under listed exclusions.

How does the influence of policy and the role of elected officials impact the classification of an action as administrative?

Actions heavily influenced by policy, especially those taken by politically elected officials, are less likely to be classified as administrative actions and hence are less likely to be reviewable under PAJA.

What is the significance of Section 6 of PAJA in the context of judicial review of administrative action?

Section 6 codifies common law principles related to judicial review of administrative actions, providing a structured framework while allowing for future development and growth of common law principles.

How is 'lawfulness' characterized in administrative law terms and why is it vital in administrative actions?

Lawfulness ensures administrative actions and decisions are authorized by law and meet statutory requirements. It is crucial to protect individuals from administrative abuse and align administrative actions with the principle of legality.

How does the constitutional right to administrative action correlate with the development of the common law?

The constitutional right to administrative action, being lawful, reasonable, and procedurally fair, is informed and developed through common law, adopting a 'transformative constitutionalism' approach and considering several constitutional provisions.

What role does the principle of legality play in the judicial review powers of the courts?

The principle of legality acts as a guide for the courts’ judicial review powers, ensuring the lawful and legitimate use of public power and is pivotal in governing the application of all public power.

How do courts, under constitutional dispensation, approach conduct that is unconstitutional and unlawful?

Courts will not endorse conduct that is unconstitutional and unlawful, steadfastly upholding the rule of law and protecting against infringements and administrative abuses.

How does the principle of legality extend its applicability beyond administrative law and ensure lawful use of public power?

The principle of legality ensures the lawful use of all public power by requiring good faith, rationality, and non-arbitrariness in its exercise, extending its applicability beyond administrative law and safeguarding the doctrine of trias politika.

What is the significance of PAJA Section 6 in reviewing administrative actions?

PAJA Section 6 delineates varied and adaptable grounds for the judicial review of administrative actions, providing specified and open-ended categories to challenge potential administrative injustices.

Why is legal authorization essential for administrative actions according to PAJA?

Legal authorization is crucial as it ensures that administrative actions or functions are lawful and in adherence to the constraints placed on the Legislature and Executive, protecting against unlawful exercise of power.

How does Section 6(2)(d) of PAJA handle errors of law in administrative actions?

Section 6(2)(d) allows for the judicial review of administrative actions when a wrong or mistaken interpretation of legislation has occurred, focusing on the administrator's process of reaching a conclusion rather than the conclusion itself.

Why is it crucial to differentiate between a review process and an appeal process in administrative justice?

The differentiation is vital as a review process examines the legality and procedural correctness of administrative decisions, while an appeal assesses the merit of the decision, ensuring that each adheres to its own evaluative parameters.

What principles must administrators adhere to when exercising discretionary powers as per PAJA?

Administrators must ensure that the exercise of discretionary powers avoids bad faith, arbitrariness, and unlawfulness, and it must be rationally connected to its purpose, ensuring actions are both lawful and reasonable.

What are some pivotal factors to consider when assessing the reasonableness of an administrative decision?

Key factors include the nature of the decision, expertise of the decision-maker, relevant factors to the decision, reasons provided, competing interests, and the impact on affected individuals.

How is rationality in administrative action related to the information and evidence available to the administrator?

Rationality necessitates a logical connection between the available information and the outcome of the decision, thereby avoiding irrational or uninformed decisions and ensuring administrative actions are justified.

In the context of administrative action, what is the purpose of ensuring proportionality?

Proportionality seeks to balance the adverse and beneficial effects of an action, encouraging administrators to contemplate the necessity of the action and consider employing less harsh means to achieve the objective.

Can reasonableness, rationality, and proportionality serve as independent grounds for judicial review of administrative decisions?

Yes, reasonableness, rationality, and proportionality might be utilized as distinctive and independent grounds for the judicial review of administrative actions, depending on specific legislative frameworks.

How do the principles of reasonableness, rationality, and proportionality interact to ensure just administrative action?

These principles collectively guide administrative actions to be judicious, ensuring decisions are made with logical coherence (rationality), balanced impact (proportionality), and thorough consideration of relevant factors (reasonableness).

What is the significance of respecting the principle of separation of powers (trias politika) in judicial review?

It ensures that courts uphold the rule of law and exercise judicial powers without unlawfully interfering in the affairs of the Legislative or Executive branches of government.

How do courts in a constitutional democracy act concerning the Constitution?

Courts act as ultimate guardians, having not only the right but also the duty to intervene to prevent constitutional violations, while ensuring they do not infringe upon the domains of other branches of government.

How is the concept of separation of powers applied in a constitutional democracy?

Separation of powers operates as a relative concept in a constitutional democracy, ensuring the courts, while having distinct powers, do not exercise them absolutely, and remain within constitutional bounds.

Which entity holds supremacy in the context of constitutional, legislative, and judicial realms?

The Constitution and the rule of law hold absolute supremacy, ensuring that all branches of government are bound and guided by its principles.

How has the evolution of administrative law integrated common law rights and principles?

Administrative law has subsumed and codified common law rights and principles through constitutional imperatives and PAJA, ensuring a robust legal framework that is aligned with the principles of legality stemming from the rule of law.

In what circumstances should remedies provided by PAJA be utilized for relief?

Remedies provided by PAJA should be utilized before seeking relief directly under section 33 of the Constitution, except in exceptional circumstances, ensuring systematic and consistent adherence to established administrative law.

What has been a point of debate concerning the applicability of PAJA in public-sector employment relationships?

The key debate is whether employment decisions in the public sector, such as dismissals and transfers, fall under "administrative action" as defined by PAJA or should be exclusively handled within the frameworks of labour laws and the LRA.

Why is understanding the scope and definition of "administrative action" crucial in legal contexts, as seen in the document?

It is crucial because the classification of an act as an "administrative action" impacts the legal processes, rights involved, and applicable statutory and constitutional frameworks, influencing the outcome of legal decisions and disputes.

How can administrative actions by public entities impact individual rights?

Administrative actions can adversely affect individual rights by imposing a burden or creating an onerous effect, especially when these actions result in decisions that are legally binding and have direct external legal effects.

What inconsistency is observed in legal determinations regarding administrative actions in public-sector employment?

The inconsistency lies in varying court decisions about whether specific employment decisions, like dismissals and transfers in the public sector, constitute administrative actions, as interpretations have differed across cases like Chirwa v Transnet and others.